Queensland Consolidated Acts

CRIMINAL LAW (HISTORICAL HOMOSEXUAL CONVICTIONS EXPUNGEMENT) ACT 2017 - SECT 18

18 Criteria for Criminal Code male homosexual offence

(1) This section applies if a conviction or charge the subject of the application is for a Criminal Code male homosexual offence.

(2) The chief executive may decide to expunge the conviction or charge for the offence only if the chief executive is satisfied, on the balance of probabilities, that—

(a) the other person who engaged, or allegedly engaged, in the act or omission constituting the offence—

(i) consented to the act or omission; and

(ii) was 18 years or more at the time the offence was committed or alleged to have been committed; and

(b) the act or omission constituting the offence—

(i) would not constitute an offence under the law of Queensland if it were done by the eligible person at the time the application was made; or

(ii) meets the criteria in subsection (2A) .

(2A) For subsection (2) (b) (ii) , the criteria are—

(a) the act or omission—

(i) was done, or allegedly done, in a public place; and

(ii) would not constitute an offence under the law of Queensland if it were done at the time the application was made, other than in a public place; and

(b) a person, other than a person engaging in the act or omission, would not have been able to observe the act or omission without taking abnormal or unusual action.

Example of taking abnormal or unusual action—

looking under the door of a cubicle in a public toilet

(3) In considering the criteria mentioned in subsection (2) or (2A) , the chief executive must have regard to—

(a) any public record containing information about the conviction or charge the chief executive has received from a criminal record holder; and

(b) any information or document the chief executive has received under section 16 about the application.

(4) In this section—

"consent" see the Criminal Code , section 348 .