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In 1981, Tim was convicted of a gay sex offence for an act between consenting adults. Despite the laws later changing, the infraction remained on his record and haunted his work life. Three years ago, Tim decided to take on the system. By André Dao.

The fight to expunge historic convictions for gay sex

When Tim finally saw a copy of his police record, after nearly three decades of shame and concealment, it was even worse than he had feared. The certificate listed a single, undated conviction: indecent assault. His reaction was immediate and instinctive – too distraught to think of filing it away, he shredded the document.

Thirty years earlier Tim had been convicted of having gay sex. It had been consensual. By 2011, the laws that had criminalised his sex life were no longer on the books, so when his department in the NSW public service was being restructured, Tim put in an application for a position in the new section. The application required a police check. Surely, he hoped, his conviction was “spent” under a NSW scheme limiting the exposure of convictions more than a decade old. But he hadn’t anticipated the exception for “sexual offences”, or that a consensual encounter between two adults could be twisted into something criminal. As far as the record was concerned, the assault might have happened as recently as last year. Rather than risking his employers finding out, Tim withdrew his application.

Tim might have continued to live with his secret if it had not been for an article written a year later by Dr Paula Gerber in The Conversation, calling for Australian governments to follow the recent British lead in passing legislation to expunge historic convictions for gay sex. Far from being alone, Tim was one of hundreds of gay and bisexual men still suffering from a double injustice – arrested, convicted and, in some cases, going to prison for seeking human intimacy, and then left with a lingering sense of fear and humiliation long after gay sex was decriminalised. Realising there might be a more permanent method of erasure than repression and denial, Tim contacted Gerber, who introduced him to Anna Brown, a Melbourne-based lawyer at the Human Rights Law Centre.

Brown was one of only three people he had spoken to about his conviction. The others were his partner of 20 years and his best friend. Even then, it would be a further six months, over a coffee in Marrickville, before Tim would trust his lawyer with his real name.

Police arrest

Tim met John on a summer night in 1981, at a bar on Sydney’s Oxford Street. The two twentysomethings hit it off, but there was a snag: both men were still living at home. Tim describes himself as “very closeted at the time”, a result of both his home life – his parents were Italian and “not very understanding of or sympathetic to homosexuality” – and the fact that the decriminalisation of homosexuality was still three years away. “I knew that my very existence was against the law.”

Taking John home was not an option and neither of them could afford a hotel room. That’s when John mentioned that he knew somewhere isolated and safe – an underground car park in North Sydney. 

“We didn’t hear any noise,” says Tim. “We thought there was nobody else there. And then all of a sudden these flashlights went on and it was the police.”

On the way to North Sydney Police Station, the officers joked with the two young men. “You guys look like you were having fun,” said one.

When they arrived at the station, Tim and John were separated and taken to different rooms. The police gave Tim a pen and paper. No one said anything about lawyers. “I was scared,” says Tim, “and I looked up at a policeman who was walking past and I remember asking him, ‘What should I do?’ He said, ‘You should write down what happened’, and that’s what I did.”

The statement Tim recorded that night declared, “When the police arrived I was kissing John on the genital area.” It was enough to ensure that he was charged with committing “an act of indecency” between two male persons. The charge was one of a suite of laws used by Australian police to harass and persecute gay men. Others ranged from “buggery” to “loitering for homosexual purposes”.

After the court case, Tim’s lawyer told him there was good news and bad news. “The good news,” he said, “is you’re not going to jail. But the bad news is they will make a notation that this has happened.”

At the time, Tim was too relieved about avoiding prison to care much about his criminal record. After all, he hadn’t lost his job, and he hadn’t had to tell anyone about the incident. “I hadn’t come out to my parents,” says Tim, “and a lot of my friends didn’t know I was gay.” 

Shame and embarrassment

Despite his relief, the conviction started to change the way Tim lived. “I felt very ashamed,” he says, “very embarrassed.” It would be another four years, when he had the money to move out of his parents’ house, before he would feel comfortable enough to be with someone “in the safety of my own home”.

The biggest impact, however, was on his working life. Before the incident, Tim was working for an airline. Too scared to apply for another job, lest his conviction be exposed, Tim stayed with the same employer for the next 20 years. “I felt angry that I was put in this situation,” says Tim. “And I would look at the heterosexual community and I would think, ‘You’re so lucky that you don’t get put through what we get put through. To just live life.’ ”

Later, when he finally moved to the public service, job application forms had begun to routinely ask about criminal offences in the past 10 years. Although he was able to honestly tick the “no” box, Tim was always aware that the trend was towards more intrusive and more onerous checks. His secret felt like a black cloud that would dog him forever.

Minor breakthrough

About a year after she first heard from Tim, Brown made a minor breakthrough. An application to the NSW police records section successfully amended his record to show both the date and the “correct” offence of “outrages against decency”. While the wording still jarred, it had the advantage of being a non-sexual offence, meaning it was now “spent”, and off Tim’s records for most purposes. But it also showed the limitations of piecemeal advocacy without legislative change. Tim, who was nearing retirement, was now thinking of volunteering with a Meals on Wheels program, “to give back to the community”. This brought him back to square one: even spent convictions show up on checks for working with children or the elderly.

Beyond that practical incentive for reform, Brown also knew that a change in the law was needed to heal the harm of past discrimination. “It’s incredibly important for someone who’s had to undergo decades of psychological trauma from being labelled a criminal just for being who they are,” says Brown. 

In 2013, she wasn’t hopeful of change: “There was no inkling that there was any appetite for legislative change in NSW.” Instead, it was Victoria that took the lead, announcing in January 2014 that it would legislate to erase historic convictions for consensual gay sex, following extensive advocacy work by Brown and the Human Rights Law Centre. Inspired by both the Victorian and British examples, NSW Liberal MP Bruce Notley-Smith approached then premier Barry O’Farrell to push for similar legislation.

After getting the nod from his party leader, Notley-Smith worked with Brown and Nationals MP Trevor Khan to draft the bill. “I set off with perhaps higher ideals,” says Notley-Smith, but the concern was soon raised that the scheme might accidentally expunge convictions that remain criminal offences. Buggery, notes Brown, included both consensual and non-consensual sex. “There needed to be some kind of assessment process before it could be expunged,” she says, “otherwise you’d be expunging convictions for what is essentially rape.”

The resulting legislation, which was passed unanimously through the NSW parliament in October, is a work in progress. “People had expectations that it would mean all things to all people,” says Notley-Smith. “My belief has always been, get the legislation through and establish a beachhead and you can amend the legislation as is needed in future.”

Brown says the Human Rights Law Centre is working closely with the government to make sure people use the legislation. In the meantime, anyone considering applying for the scheme should seek confidential legal assistance first. Government will also have to work to encourage men to come forward. “It’s been government and the police and the justice system that’s been the cause of so much hurt in their lives,” Brown says. “Why on earth would that trust be suddenly rebuilt overnight?”

‘Completely life-changing’

In April, after a nearly three-year process, Brown was finally able to make the phone call to Tim. He had become the first man in Australia to have his gay sex conviction expunged. “It was completely life-changing,” says Tim. “It was such a surreal feeling, that this burden that had been hanging around for three decades had suddenly been lifted.”

He hopes that by sharing his story, other men will feel comfortable coming forward. Of that summer night in 1981? “I was aware that it was against the law to be gay. But I still have human feelings.”

This article was first published in the print edition of The Saturday Paper on Jun 6, 2015 as "It happened one night". Subscribe here.

André Dao
is the editor-at-large of Right Now.