Second Reading

Resumed from 13 March.

HON MICHAEL MISCHIN (North Metropolitan — Deputy Leader of the Opposition) [5.16 pm]: I rise to speak as the Liberal opposition’s lead speaker on the Historical Homosexual Convictions Expungement Bill 2017, the purpose of which is to institute a regime to expunge so-called historical homosexual convictions in respect of consensual sexual activity of a homosexual nature that should never have been considered an offence in the first place, as the second reading speech provides.   ............................

HON ALISON XAMON (North Metropolitan) [7.34 pm]: I rise as the lead speaker on behalf of the Greens on the Historical Homosexual Convictions Expungement Bill 2017. I indicate from the outset that the Greens will absolutely support this legislation. I am very pleased to be able to speak on this bill tonight. It is a very important bill and one that I think will make a tangible difference to the lives of quite a number of people. The Greens have always stood for equal rights for lesbian, gay, bisexual, transgender, intersex people. We believe that freedom of sexuality is a fundamental human right. Acceptance and celebration of people of diverse sexuality are essential for genuine social justice and equality. We know that laws against homosexuality in WA first changed in the Law Reform (Decriminalization of Sodomy) Act 1989. Then, in 2002, discrimination against homosexuality was finally removed from the Criminal Code with the equalising of the age of consent. Although I wholeheartedly support and welcome this bill, I cannot help but note that it really is long overdue for many members of our community. Making homosexuality illegal was state-based discrimination, which undoubtedly resulted in deep distress and harm. In some cases it cost people their lives. Let us hope that this bill and the recent passage of marriage equality legislation are precursors to finally removing all other legal discrimination against same-sex couples, and I will make some more comments about that later.

I would specifically like to talk about the features of this bill. It seeks to establish an administrative scheme for the expungement of convictions for a select number of historical offences under now repealed sections of the Criminal Code involving homosexual activity. Eligible persons or guardians can apply to the CEO of the Department of Justice to have a historical conviction expunged. It finally makes discrimination on the grounds of an expunged conviction unlawful. I have to say that I am really pleased with the way that the legislation has been drafted. I think it has been deliberately designed to make the application process as accessible as possible. It is good to see that the bill has provisions to include the period between the decriminalisation of homosexuality and the equalising of the age of consent. I note that currently seven offences are listed as eligible, but the bill has been set up to allow for more to be added through regulation if necessary. In the absence of easily accessible data, the best guess seems to be that about 200 Western Australians will be eligible to apply to have their convictions expunged and that a wide range of people, including relatives, partners and appointed guardians, will be able to make those applications. I note that the experience in other states where expungement legislation has been passed is that relatively small numbers of people have made applications. In the briefing, I was advised that the expectation was that this would also be the case in Western Australia, which means that it is anticipated that the department will be well able to support applicants throughout this process. The impact of these historical laws on those who were convicted has undoubtedly been incredibly harmful for them and their loved ones. A criminal conviction affects people’s job prospects and their capacity to travel to certain countries. It can serve as a fundamental attack on people’s sense of self-worth and where they sit within the community. It is especially problematic because people are expected to have to disclose convictions in a number of scenarios over and over again. I think it is devastating that gay people were labelled as criminals merely for being who they were; merely for expressing their true selves. But to look at these numbers in isolation also denies the far-reaching social impacts that the presence of these laws had, not just on the people who were convicted, but indeed on all members of the lesbian, gay, bisexual, transgender, intersex community.

In preparation for my contribution, I met with members of GLBTI Rights in Ageing Inc—many members here will know that organisation as GRAI—and with members of another organisation, Prime Timers Western Australia. I was privileged to sit down with members of these groups and hear, at length, about the impacts that past discriminatory legislation had on their lives. I think it is a privilege to be able to share some of their stories and perspectives with members tonight.

One of the key points that the people I met with wanted to impart is that they recognise that recently there have been big strides in the broader community’s attitudes towards LGBTI people. They were concerned that, within this context, it may be very hard for people to remember or even truly appreciate what life was like for older people who grew up in a time of what was, effectively, compulsory heterosexuality. When we consider that Australians of diverse sexual orientation, sex or gender identity are estimated to account for up to 11 per cent of the Australian population—that figure comes from the federal Department of Health’s “National Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) Ageing and Aged Care Strategy”, so it is a government document—we are talking about laws that were fundamentally at odds with the human rights of the largest minority group in our country. Although it is heartening that, as a whole, our society is becoming aware of the legacy of discriminatory legislation, unfortunately that does not automatically reverse or change the impact of a lifetime of stigma.

The community of the time effectively felt legitimised in its homophobia because our laws actively facilitated it. I would like members to remember that we are talking about a time when a Perth newspaper, The Truth, used to openly report on people who had been prosecuted for homosexual offences, publicly humiliating them. The impact was cumulative; people made day-by-day compromises in the ways in which they lived their lives, people lived in fear, and people were held back from paths that were not chosen because of the risk of potential exposure. Minimising these impacts became a common coping mechanism.

One of the Prime Timers who spoke to me captured the impacts of the shame and stigma by saying, according to my notes —

“everybody has a right to live but I can’t get back my compromised life”

Another man said, according to my notes —

... “It’s corrosive—who knows what sort of lives we would have led if we had not been told from an early age that we were illegal”

These stories must not be lost, and we need to honour the extreme hardships experienced by older LGBTI people. We must also acknowledge the ongoing impact of intergenerational bereavement, because the effects will be felt for years to come. We need to remember that these people grew up in a culture of fear. One man told me that he knew he was same-sex attracted from the time he was four; this was decades and decades ago, but he did not dare tell a soul. There was no avenue for him to discuss his feelings, no way of having conversations to feel part of a bigger community. He talked about what an isolating experience this was for him. According to my notes, he said that this meant —

“We knew nothing, we were told nothing, we didn’t understand ourselves”.

It is particularly difficult because most people do not share these experiences in common with their families, because the rest of the family is often straight or identifies as straight. At a very vulnerable time of life these young people had nowhere to turn—not to their families or to anyone else—and it completely shaped their way of experiencing the world and their capacity to live life, and the laws reinforced this. The laws criminalised them for being who they were. It meant that relationships were frowned upon because it was difficult to live in a house with another man. For many, it closed off the idea of ever being able to even have a long-term relationship. Another person I spoke to said, according to my notes, that he felt that the culture of shame —

“prevents love, you have love beaten out of you”.

Because of the secrecy, the most common way to meet other gay men was at beats, which were known to be dangerous, with men regularly being bashed. Police officers would often attend the beats and charge people with disorderly conduct. Depending upon the police at the time, there would also be campaigns to purge the beats. The stigma was so great that many people felt they had to live a secret and compromised life. A large number of the men I spoke to had married women. One man said that because he was married, he at least was not discriminated against at work, even though he was never able to be honest with his wife, his children, his friends or anyone else about who he actually was.

Some had some quite terrible stories to tell of being fired because they were discovered to be gay, while others were constantly afraid of being found out at work. These experiences had obvious ramifications in hindering career pathways, and had enormous impacts on people’s confidence and sense of who they were.

One man gave a poignant insight into the impact that being gay had had on his partner’s career. He talked about what had happened to his partner, who lost three different positions simply because he was gay. His first job was in the Army. He progressed quickly, he trained people and he was well regarded, but when it was discovered he was gay, he was imprisoned and shipped out of the barracks. He lost pay and he tried to take his own life. He then worked for a mining company, but when it was discovered that he was gay, he was sent to the managing director and forced to resign. He later tried the Army Reserve. At first, no-one checked up on his history when he applied to once again be an officer. It was then discovered that he was gay and he was discharged. For that man, these experiences resulted in a lifetime of entrenched depression.

We need to remember also that not only careers were impacted. The shame of being gay and not being able to express who they fundamentally were meant that people often were forced to move away from their families, homes and communities. Many people are now geographically dislocated because they did not feel they could ever come out in their home town. This has resulted in an ongoing impact that is often not considered when people are young. Family connections are weakened and there is reduced capacity to care for ageing parents or, indeed, to receive support from family members.

One of the things I think it was really important to give voice to was the experience of lesbian women at this time. The reality is that the legislation that discriminated against people was solely towards gay men. However, I think it is absolutely critical to recognise the impact this had on the lesbian, gay, bisexual, transgender, intersex community as a whole. It was not just gay men who were subject to arrest and conviction who suffered; gay men around them lived with the constant fear that this could potentially happen to them. Women—lesbians—who were part of the LGBTI community also lived with the stigma and shame of knowing that there were broader laws against people based on their homosexuality. When we talk about the impact of this legislation on people, it is really critical that we recognise that we are talking about the impact on an entire community of people. The reality is that many gay people found that they had to create their own families, particularly in the environment of the times that we are talking about—although, unfortunately, I think it still occurs for far too many people—in which homosexuality was illegal. It meant that those self-created families of lesbian friends were also deeply impacted by the stigmatising and painful laws at the time, and it impacted on an entire community. But I will say that the men and women who I met were at pains to say that although their experiences were marred by growing up in a society that did not accept them for who they are, they also acknowledged the extremely tight-knit culture that emerged. I am extremely grateful to those people for taking the time to meet with me and to share some of their very painful experiences and, importantly, to put a human face on the impacts of discrimination that was legitimised by the state.

Unsurprisingly, these personal experiences paint a picture consistent with research documenting the effects of discrimination on LGBTI people. At the population level, the evidence tells us that LGBTI Australians continue to experience rates of depression, anxiety and psychological distress that are much higher than the national averages. In fact, that is why, at a state level, LGBTI people are identified as a priority population in Suicide Prevention 2020. Solutions for improving the mental health of LGBTI people must range from better supporting individuals right through to creating communities that foster wellbeing, including through measures such as this—through legislative reform. We all need to take responsibility for achieving this. A 2015 report published by the Australian Research Centre in Sex, Health and Society on addressing the mental health and wellbeing of LGBTI Australia found —

In the absence of overt and public affirmation of LGBT Australians lives and relationships, many will struggle to achieve that sense of personal and collective worth on which good mental health and wellbeing depend.

The report goes on to recommend that in order to address the high rates of mental health problems amongst LGBTI people, we must consider population-based interventions that address the causes and effects of systemic discrimination against LGBTI people, while at the same time looking for new models based on wellness that value LGBTI people and their lives. I hope that the WA LGBTI health strategy that is currently under development will ultimately reflect this understanding.

We also need to look at removing the remaining legal discriminations, because although this expungement bill and the government’s apology are incredibly important steps in acknowledging the distress and harm caused by past discriminatory legislation, they are just one part of what needs to be done to remove remaining legal discrimination in this state. Criminalising homosexuality was only one expression of state-based discrimination in Western Australia. I think many members of the public would be shocked to know that there are still gaps—legal gaps—in our protections for LGBTI members of our community that are still able to deny people access to basic rights such as the freedom to choose which school their children can attend. The laws in WA still allow private religious schools to discriminate against employees, students and their families on the basis of their sexual orientation and/or their gender history. Specifically, the Equal Opportunity Act still grants exemptions from other sections of the act for religious bodies, including educational institutions. Therefore, without question, matters of equal opportunity should be designed to protect all members of our community, and it is unthinkable that young people who do not have a choice about their sexuality, or in most instances which school they attend, should be able to be discriminated against like this. Not only are private schools allowed to discriminate against LGBTI-plus people, but government funding of them suggests tacit approval. Therefore, it is really important that when we talk about removing legal discrimination and righting the wrongs of the past, we do not ignore those wrongs which still sit on our statute book and which we still allow to exist.

As I have said, the Greens wholeheartedly support this bill. The Greens will also be supporting the provision of a review clause in this bill. It is really important to be able to track the success of this legislation and to see how many people have availed themselves of these important expungement provisions. As a Parliament we need to show leadership and to act to end all state-based discrimination against LGBTI people in Western Australia once and for all, because rights are either rights or they are not. Once again, I thank the members of GRAI and Prime Timers who met with me and shared their deeply personal stories. I was particularly struck by the grace they all showed when they were reflecting on a time in their lives when the state legitimised their persecution for nothing other than expressing a core part of themselves. There was a level of courage and dignity that I think absolutely resonated. I want this legislation passed as soon as possible. It has been a long time coming. With those words, I look forward to seeing the passage of this bill.

[Speeches and comments from various members]

Question put and passed.
Bill read a second time.
Debate adjourned until a later stage of the sitting, on motion by Hon Sue Ellery (Leader of the House).


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