10Matters to be considered in determining application

10 Matters to be considered in determining application

(1)  [Section 10 Subsection (1) amended by No. 21 of 2025, s. 6, Applied:27 Nov 2025] The Secretary must not decide to expunge a charge for a homosexual offence or a cross-dressing offence under section 12(2)(a) unless satisfied on reasonable grounds that –

(a) the offence with which the eligible person was charged is a homosexual offence or a cross-dressing offence; and

(b) in the case of a charge for a homosexual offence –

(i) the eligible person would not have been charged with the homosexual offence but for the fact that the eligible person was suspected of having engaged in the conduct constituting the offence for the purposes of, or in connection with, sexual activity of a homosexual nature; and

(ii) the conduct constituting the homosexual offence, if engaged in by the eligible person at the time of the making of the application, would not constitute an offence under the law of this State.

(1A)  [Section 10 Subsection (1A) inserted by No. 21 of 2025, s. 6, Applied:27 Nov 2025] The Secretary must not decide to expunge a charge for a related offence under section 12(2)(a) unless the Secretary –

(a) has received advice from the Commissioner of Police in relation to the circumstances of the related offence; and

(b) is satisfied on reasonable grounds, after considering that advice, that –

(i) the offence for which the eligible person was charged is a related offence; and

(ii) the person charged with the related offence would not have been so charged but for the fact that the eligible person was suspected of committing a homosexual offence or cross-dressing offence; and

(iii) expunging the charge is not contrary to the public interest.

(2)  In considering whether the test set out in subsection (1)(b)(ii) is satisfied, the Secretary must have regard to –