Expunged Homosexual Conviction

It’s official!  This is a new protected attribute under the Equal Opportunity Act (Vic) 2010 – expunged homosexual conviction.  And you may be thinking “So what?  I cannot/will not discriminate on the basis of sexual preference anyway, so why should I care?”

The Victorian government, along with other states, have decided that people convicted of certain crimes, usually with homosexuality as their target, will now be able to apply to have these convictions removed.  In Victoria, historical homosexual convictions are defined as “a public morality offence, as well as attempting to commit such offence, being involved in the commission of such an offence, and inciting or conspiring to commit such an offence.”  This was the law in Victoria until 1981.  Those convicted before 1981 can now apply to the Department of Justice and Regulation to have their conviction expunged.  This will take place on a case by case basis.  Those offences which would still be considered illegal today, such as non-consenting acts, or those involving underage participants, cannot be expunged.  But for others, expungement means that they can legally claim that they have not been convicted of this offence, the person does not have to declare this conviction, even under oath, and this conviction will not come up in a police check.

Adding this as a protected attribute under the Equal Opportunity Act (Vic) 2010 is a measure to further protect those convicted before 1981 against possible discrimination in public areas of life covered by the Act, such as goods and services, education and of course, work, including volunteering.  With the widespread prevalence of police checks, both in paid and unpaid roles, there is the risk of ongoing discrimination.

If it does come up in a police check?  Those who make decisions also need to keep in mind other protected attributes under the Act, such as lawful sexual activity and sexual preference, as well as Federal legislation prohibiting discrimination on the basis of unrelated criminal conviction.

Any questions?  Please contact me.  And update your policies accordingly!