Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill Submission by Community Law Wellington and Hutt Valley 18 August 2017 1. This submission is made on behalf of Community Law Wellington and Hutt Valley (CLWHV). CLWHV runs daily in-house and outreach legal advice sessions and provides legal education to the local community. We wish to make an oral submission to the Committee. Introduction 2. CLWHV have worked with several clients who have been affected by the stigma of a conviction for a historical homosexual offence. One area that has particularly come to our attention, and that our submission will focus on, is the disclosure of historic homosexual convictions under the Vulnerable Children Act 2014 (VCA) and their treatment as VCA specified offences. In addition to the stigma this causes, disclosure of a specified offence will result in the person being unable to be employed in a role that involves being alone with children unless they obtain an exemption. 3. We are aware of cases where, pursuant to safety checks under the VCA, disclosures have been made of an historic offence which would not constitute an offence under the current law of New Zealand. Those disclosures have had a direct consequence of preventing the applicant in question from being employed or engaged in a number of positions for which he was otherwise well qualified. We are concerned that the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill (the Expungement Bill) does not fully resolve this injustice. It is therefore our view that while the intent of the Expungement Bill merits full support, the outcomes intended are not fully achieved by the Bill as drafted. Disclosure of historic homosexual convictions under the Vulnerable Children Act 2014 4. Pursuant to section 25 of the VCA, state funded organisations must not employ or engage a person in a role that involves regular contact with children without ensuring that prescribed safety checks are undertaken. The VCA sets out a list of specified offences, a conviction for which will mean a person is unable to be employed as a core worker (a person who may
be alone with children in the course of their role). The VCA overrides the protections of the Criminal Records (Clean Slate) Act 2004 and requires that specified offences that would otherwise be able to be concealed under the Clean Slate regime are disclosed. 5. There is a lack of clarity in the VCA as to the definition of specified offence that means that historic homosexual offences are arguably able to be disclosed and treated as specified offences, and indeed Police are presently doing so. Schedule 2(1) of the VCA sets out a list of 39 specified offences, but subsection (2) expands upon this to include any offence that is equivalent to an offence referred to in clause 1, but that was committed against a provision of the Crimes Act 1961 that has been repealed. 6. This inclusion of equivalent repealed offences has led to the treatment of the historic offence of indecency between males (repealed in 1986) as a VCA specified offence, apparently on the basis that it shares a section number with the more modern specified offence of indecent assault on man or boy (Crimes Act 1961, s 141). While the latter offence criminalised only non-consensual assaults, indecency between males criminalised consensual conduct between males. 7. Despite the obvious shift in the intent of s 141 from an offence directed at penalising homosexuality to one prohibiting sexual assault, Police undertaking VCA safety checks continue to conflate the pre-1986 incarnation of s 141 with the post-1986 offence involving indecent assault. This means that, since the passing of the VCA, men with historic convictions for consensual behaviour have been unable to work in roles that may require them to be alone with children. While there is provision in the VCA for a Core Worker Exemption to be sought with an employer s support, given the option of several candidates, even sympathetic employers will seldom choose the candidate that needs to go through the process of obtaining a special exemption. It is essential that, to properly meet the purposes of the Expungement Bill, the Select Committee takes this opportunity to rectify this injustice. 8. It seems that this outcome was not intended by the drafters of the VCA, as the VCA does not include reference to other pre-1986 homosexual offences (such as sodomy) which have since been decriminalised. However, this is how the VCA is currently being implemented, and the Police approach to this ambiguity in the VCA highlights the need for absolute clarity as to the Expungement Bill s effects upon the contents of children s worker safety checks.
Disclosures permitted by the Expungement Bill 9. The Expungement Bill s apparent intent is to ensure that convictions for homosexual conduct that would no longer constitute an offence are not a disclosable part of a person s criminal record. The preamble states that the general policy sought to be achieved is that: [i]f a person s application is approved under the scheme, the person s criminal record will be amended to ensure the conviction does not appear on a criminal history check for any purpose in New Zealand and the person will be entitled to declare the person has no conviction. While an official record of the expunged conviction will have to be retained as a matter of fact and social history, for practical purposes within New Zealand it would be treated as if the person had not been convicted. [emphasis added] 10. However, CLWHV submits that the Expungement Bill s intended outcome is not fully met as: a) Clause 13(2) of the Expungement Bill states that it will not be an offence to disclose an expunged conviction if the person who was convicted gives written consent to the release of the information. A VCA children s worker safety check entails a Police vet, 1 which requires the individual to sign an extremely broadly worded consent to the disclosure of any information held about any interaction with Police; and b) Clause 12 of the Expungement Bill is framed in terms of requests for an applicant s criminal record. A VCA Police vet is far broader than a criminal record check, and encompasses any interaction [the person has] had with New Zealand Police. Clarification would be beneficial to ensure that the Expungement Bill s effects are not restricted to criminal record checks; and c) Clause 13(2)(b) of the Expungement Bill provides that the disclosure of an expunged conviction is not an offence if the disclosure is otherwise authorised by law and no reference is made in the Bill as to how it interplays with the VCA. There may be an argument that disclosure under the VCA is still authorised by law. 11. Clause 11 of the Expungement Bill requires the chief executive of a government department or law enforcement agency that holds, or has access to, criminal records to ensure that all reasonable steps are taken to conceal criminal records of an expunged conviction when requests are made (other than by the convicted person) for their disclosure. Clause 12 1 Vulnerable Children (Requirements for Safety Checks of Children s Workers) Regulations 2015, cl 6(1).
reinforces this duty, repeating that the criminal record of an expunged conviction must not be disclosed other than in responding to a request from the convicted person. 12. However, clause 13(2) states that it will not be an offence to disclose an expunged conviction if written consent to the disclosure has been given by the convicted person or the disclosure is otherwise authorised by law. The language in clause 13(2) thus restricts the offence to a narrower set of circumstances than appears to be the intent of clauses 11 and 12. While clauses 11 and 12 state that the record may only be disclosed in response to a request by the convicted person, clause 13(2) states there is in fact no offence if the convicted person consents to the disclosure. 13. The level of specificity required of such a written consent to disclosure is unclear. When an individual applies for a position which requires a safety check under the VCA, they are presently required to consent to the disclosure of any relevant information held about any interactions with Police, including but not limited to their conviction history. Accordingly, it is strongly arguable that no offence would be committed if an expunged conviction were disclosed, as the person has consented in writing. If a person refused to consent to such a vet out of fear that an expunged conviction would be disclosed, or specifically refused to consent to the disclosure of information about the expunged conviction, they would likely be unable to satisfy the safety checks required to secure employment as a children s worker. 14. Further, there may be an argument that because no reference is made in this Bill to how it interacts with the VCA, disclosure under the VCA is still authorised by law, even if the conviction is expunged pursuant to the terms of the Expungement Bill. If that argument were sustained then, again, disclosure of an expunged conviction would not be an offence. 15. It is our view that any government department or agency being requested to make disclosure of information regarding convictions that are arguably equivalent to specified offences under the VCA should assess the detail of any conviction and only disclose convictions that would be offences under current law. This, however, is not happening. The VCA may be ambiguous as to the obligations of disclosing agencies in this regard. We appreciate that the Select Committee consideration of the Expungement Bill is not the forum for consideration of a broad clarificatory change to the Vulnerable Children Act 2014.
Accordingly, we recommend amendments to the Expungement Bill to at least ensure that those who successfully obtain an expungement benefit from the full protections intended by the Bill, as articulated in the general policy statement in the preamble of the Bill. Recommended amendments 16. It is our view that the Expungement Bill as drafted is, at best, ambiguous as to whether an expunged conviction would still be required to be disclosed pursuant to a children s worker safety check under the VCA. We submit that this ambiguity ought to be removed and the Bill amended to ensure that the no disclosure of an expunged conviction can be made in the course of a children s worker safety check. We recommend that this can be achieved by: a) adding a new subclause 10(4) as follows: (4) This Act limits and affects the Vulnerable Children Act 2014. b) adding a new subclause 13(5) as follows: (5) Subsection (2) does not apply to consent given to a children s worker safety check under the Vulnerable Children Act 2014. c) adding a new clause 23 under a sub-heading, as follows: Consequential amendments to other enactments 23 Amendments to the Vulnerable Children Act 2014 (1) This section Amends the Vulnerable Children Act 2014. (2) In section 23(1) after specified offence means an offence identified in Schedule 2 insert other than an offence expunged pursuant to the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Act [2017] (3) After section 31(3) insert: (4) Nothing in this Act authorises the disclosure of a conviction expunged pursuant to the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Act [2017]. COMMUNITY LAW WELLINGTON AND HUTT VALLEY