Historical Homosexual Convictions Expungement Act 2018

The Act defines and operates around a small number of precise statutory concepts whose legal meaning drives eligibility, process and effect.

• Historical homosexual offence: defined at s 3(1) to include the offences listed in Schedule 1, any offence prescribed for that definition and attempts, conspiracies and incitements to commit those offences. Schedule 1 cross‑references specific historical provisions of the Criminal Code as they stood at defined historical dates. The definition anchors eligibility to particular statutory provisions or to those later prescribed.

• Conviction and expunged conviction: “conviction” is broadly defined to include findings of guilt and accepted guilty pleas, whether or not a conviction is recorded, and specifically includes spent convictions as defined in the Spent Convictions Act 1988 notwithstanding that Act’s usual spent‑conviction regime (s 3(1)). An “expunged conviction” is a conviction expunged under s 11(3); s 3(2) clarifies that references to an expunged conviction include the underlying charge.

• Eligible person and applicant: an eligible person is a person convicted of a historical homosexual offence (s 3(1)). Applicants include eligible persons themselves and certain third parties in prescribed circumstances (s 5(1)-(2)), for example guardians or, where the eligible person has died, close relatives, executors, or a person involved in the conduct that constituted the offence (s 5(2)(c)).

• CEO as decision‑maker: the Act centralises decision‑making power in the CEO (defined at s 3(1)), who conducts investigations, determines applications, notifies data controllers and may revoke expungements when procured by false information (ss 9-12, 13). The CEO may delegate to senior executive officers (s 27).

• Evidence and consent: applications by eligible persons must include a consent allowing data controllers to disclose records to the CEO (s 6(2)(a)); an application made on behalf of an eligible person by a third party is taken to include the eligible person’s consent (s 6(2)(b)). The CEO may require additional documents and information (s 9(3)-(4)); consent and availability of witnesses or documents affect the CEO’s ability to be satisfied on issues such as consent to the historical conduct (s 10(3)).

• Determination tests: the CEO must be satisfied that (a) the offence is a historical homosexual offence and (b) on the balance of probabilities, two tests are met: that the person was charged because of suspicion of homosexual‑nature conduct and that the conduct would not be an offence now (s 10(1)). For the second limb, the CEO must consider whether persons involved consented and their ages (s 10(2)). If consent is an issue, written evidence must come from official records or a person (other than the applicant) involved in the conduct, or, if none can be found after reasonable enquiries, from another person with knowledge of the circumstances (s 10(3)).

• Effects on official records and disclosure rules: approval triggers mandatory annotation by data controllers that an entry relates to an expunged conviction; annotations must be made within 28 days of notification (s 13). Expunged convictions are taken not to form part of a person’s official criminal record, need not be disclosed, must not be taken into account for legal character inquiries, and cannot be used as a proper ground to refuse or revoke appointments or privileges (s 14). Conversely, unauthorised disclosure or improper obtaining of expunged‑conviction information is a criminal offence (ss 15-16).

• Interaction with spent‑conviction protections and anti‑discrimination: Part 3 applies protections from the Spent Convictions Act 1988 Part 3 Division 3 to expunged convictions (s 17(1)). The Act also specifies which powers and functions under the Equal Opportunity Act are engaged in discrimination proceedings related to an expunged conviction (s 17(2)).

• Working with Children Act carve‑in: the Act expressly inserts s 8A into the Working with Children Act so that, for those purposes, a non‑conviction charge includes an expunged conviction, and that provision applies “despite anything in” the Expungement Act (s 33(1)-(2)). Legally, this creates an explicit statutory exception to the non‑disclosure character of an expunged conviction when performing functions under the Working with Children Act.

• Protections and penalties: confidentiality and misuse provisions create both administrative duties and criminal penalties for unauthorised disclosure (s 15 penalty $10,000), fraudulent access (s 16 penalty $10,000), giving false or misleading information in applications (s 28 penalty $10,000), failure to answer CEO notices (s 9(5) penalty $2,000) and confidentiality breaches (s 23 penalty $10,000).

These concepts structure how the scheme operates: eligibility and evidentiary thresholds limit the pool of convictions eligible, the CEO centralises gatekeeping and investigative functions while constrained by procedural notice and review obligations, and annotation rather than destruction shapes how official records continue to exist and may be accessed under limited exceptions (see ss 13, 21). The insertion into the Working with Children Act is a deliberate cross‑statutory rule that preserves particular public‑safety screening functions despite expungement (ss 32-33).

The Act imposes duties, creates rights and affects the interests of several defined groups and institutions. The statutory definitions and provisions identify who pays, who decides, and who is constrained or enabled.

• Eligible persons: persons who have been convicted of a historical homosexual offence (s 3(1)). For an eligible person, an expungement removes the requirement to disclose the conviction in most contexts and removes the conviction from being treated as part of the official criminal record (s 14). Eligible persons are central beneficiaries of the scheme but must initiate the process themselves or have a qualifying third party do so on their behalf (s 5).

• Applicants and third‑party applicants: the persons who can lodge applications are (a) eligible persons themselves, or (b) those who qualify under s 5(2), including enduring guardians, guardians, spouses/de facto partners, parents, children, siblings, executors/administrators, persons who maintained a close personal relationship immediately before death, or persons involved in the conduct (s 5(2)). The Act prescribes the form requirements and that applications must include consent to obtain records (s 6(1)-(2)). Third‑party applicants are treated as including the eligible person’s consent for disclosure purposes (s 6(2)(b)), and the Act requires the CEO to give notice to applicants and, where practicable, to eligible persons before refusing an application (s 11(4)-(6)).

• The CEO and Departmental officers: the CEO is the statutory decision‑maker responsible for receiving, investigating and determining applications; notifying data controllers; revoking expungements procured by false information; reporting annually; and meeting ministerial review obligations (ss 9-13, 30-31). The CEO may delegate to senior executive officers (s 27). The CEO cannot hold oral hearings in determining applications (s 9(2)). The CEO also has power to require third parties to provide information (s 9(4)), and the CEO’s evidence obtained under the Part may only be used for administration of the Act (s 9(6)).

• Data controllers and record‑keeping agencies: defined at s 3(1) to include the Commissioner of Police (or the agency principally assisting the Minister), the DPP, registrars of the District, Magistrates, Supreme and Children’s Courts, and prescribed bodies. Data controllers must annotate entries relating to expunged convictions within 28 days of receiving notice from the CEO and must notify the CEO whether they’ve complied or have been unable to locate records (ss 13(1)-(3)). When a revocation occurs the data controller must annotate records to show the expunged status has ceased (s 12(6)-(7)).

• Employers and third‑party users of criminal‑history information: s 14 removes the obligation for eligible persons to disclose expunged convictions and states that an expunged conviction is not to be taken into account when applying provisions of any legislation, agreement or arrangement , including character assessments and appointment decisions (s 14(d)-(e)). However, that broad protection is qualified by the Working with Children Act amendment (ss 32-33), and information may be disclosed to the National Police Reference System under s 15(2)(c).

• State Administrative Tribunal: the SAT is the review forum for affected persons aggrieved by a CEO refusal or a CEO determination revoking an expungement (s 18). Reviews must be commenced within 28 days (s 18(3)) and are to be held in private with protective orders available (s 18(4)-(5)).

• Police and the Australian Crime Commission: s 15(2)(c) permits the Commissioner of Police to disclose to the Australian Crime Commission for incorporation into the National Police Reference System the fact that a specified conviction has become an expunged conviction. This creates an operational effect beyond state record annotation and signals continuing police data flows.

• Public interest entities: archives, libraries and authorised officers may continue to make publicly available historical material that contains information about expunged convictions under their normal procedures (s 15(2)(a)). The Act therefore preserves some public‑historical access even where a conviction is expunged.

• Persons providing information to the CEO: the Act compels cooperation under notice (s 9(4)) and creates offences for non‑compliance (s 9(5)). Persons who supply false or misleading information in an application or in compliance with the Act face penalties (s 28).

• Ministers and Parliament: the CEO must report annually to the Minister with defined statistics about applications, approvals and refusals and must provide a ministerial review of the Act after five years (ss 30-31). The Minister must table the annual report in both Houses (s 30(2)). The Parliament is thus in receipt of performance data.

Who pays and who bears costs:

• Applicants bear the direct compliance costs of preparing applications, assembling documentary evidence and pursuing reviews if refused. The Act does not provide for legal aid or compensation for applicants (s 19).
• The State bears administrative costs associated with establishing and running the CEO’s functions, making inquiries, notifying and coordinating with multiple data controllers, and handling SAT reviews and reporting.
• Data controllers incur records‑management costs to locate records, annotate entries within 28 days, and report compliance back to the CEO (ss 13(2)-(3)).
• Employers and other private parties may bear costs of verifying status in particular sectors (for example, through Working with Children checks, which retain a special rule for expunged convictions (ss 32-33)).

The Act therefore establishes a redistribution of administrative and compliance burdens across applicants, the CEO/Department and data controllers, while creating limited legal protections to reduce disclosure burdens for eligible persons outside the carve‑ins the Act itself prescribes.

This section sets out the principal statutory obligations imposed on actors and the legal rights the Act creates or preserves. Citations identify the controlling provisions.

Duties of applicants and providers of information

• Application content and consent: applicants must lodge applications in a CEO approved form that contain prescribed information, including identity and conviction details, and, where made by the eligible person, an authorising consent for disclosure of records by data controllers to the CEO (s 5(3), s 6(1), s 6(2)(a)). A third‑party application is taken to include the eligible person’s consent (s 6(2)(b)).
• Cooperation with investigations: the CEO may require applicants and third parties to provide additional information within a specified period (typically 28 days) (s 9(3)). The CEO may also require other persons who may provide relevant information to answer specified questions or provide documents; non‑compliance without reasonable excuse is an offence punishable by a $2,000 fine (s 9(4)-(5)).
• Truthfulness: persons must not give false or misleading information in connection with applications, compliance requirements, and other processes under the Act; an offence carries a fine of $10,000 (s 28(1)-(2)).

Duties of the CEO and Department

• Timely determination: the CEO must determine an application ”as soon as practicable” after receipt (s 11(1)). Approvals result in expungement (s 11(3)), refusals must follow a specified procedural pathway including notice and opportunity to provide further written information (s 11(4)-(6)).
• Notification and record‑annotation: on approval, the CEO must notify relevant data controllers within 28 days (s 13(1)). On receiving a notification, data controllers must annotate records within 28 days (s 13(2)) and advise the CEO whether annotation was completed or records could not be located (s 13(3)). The CEO must inform the applicant when the CEO is satisfied that all necessary record annotations have been completed (s 13(4)).
• Revocation powers: if a conviction was expunged because of false or misleading information, the CEO may determine that the conviction is no longer expunged, but only after giving notice, disclosure of relevant documents (with personal information of third parties withheld), and a 14‑day opportunity to respond; the CEO must notify relevant data controllers within 28 days of such a determination (s 12(1)-(7)).
• Confidentiality and limits on usage: evidence and documents obtained under Part 2 may only be used for administration of the Act (s 9(6)); the CEO must ensure personal information about others is withheld when providing official records under procedural notices (s 11(5), s 12(3)).

Duties of data controllers and record‑keeping bodies

• Annotation obligations: upon CEO notification of an approval, the data controller must annotate any entry relating to the expunged conviction within 28 days (s 13(2)). If the CEO notifies that an expungement has ceased, data controllers must annotate entries to show the conviction was expunged but is no longer expunged (s 12(7)).
• Reporting back to CEO: data controllers must promptly advise the CEO whether they have completed annotation or failed to locate records (s 13(3)).
• Limits on destruction: the Act states that nothing authorises or requires destruction, culling or editing of documents containing official criminal records, subject to annotation duties (s 21).

Rights of affected persons

• Right to apply: eligible persons and qualifying third parties have a right to apply for expungement (s 5).
• Right to notice and to make submissions: before refusal or revocation, the CEO must give notice, provide copies of official criminal records in the CEO’s possession (with personal information about third parties removed), and allow 14 days to submit further written information (s 11(4)(a)-(b), s 12(2)(a)-(b)).
• Right to privacy in review: affected persons may seek review by the State Administrative Tribunal within 28 days; reviews are to be in private and certain evidence and documents are “protected matters” (s 18(2)-(5)).
• Legal status after expungement: if a conviction is expunged, the person is not required to disclose it, it is taken not to form part of official criminal records, and it must not be taken into account in legislation, agreements or arrangements as a conviction or as a matter of character (s 14). The Spent Convictions Act Part 3 Division 3 applies to expunged convictions (s 17(1)), bringing the protections and remedies of that Division into play for discrimination.

Enforcement and penalties (overview)

• Fines are attached to failure to answer CEO notices ($2,000, s 9(5)), unlawful disclosure of expunged conviction information ($10,000, s 15(1)), fraudulent or dishonest access to expunged conviction information ($10,000, s 16), confidentiality breaches in administration ($10,000, s 23(1)) and making false or misleading statements in connection with applications ($10,000, s 28(1)). The Act therefore combines administrative remedies with monetary sanctions.

Other rights and limitations

• No compensation: the Act expressly disclaims any entitlement to compensation arising from the event of a conviction being expunged (s 19). This means applicants cannot claim compensatory damages under the statute for prior prosecutions, convictions or consequences thereof.
• Working with Children Act interaction: despite the broad non‑disclosure and non‑use protections of s 14, the Act amends the Working with Children Act so that expunged convictions are treated as non‑conviction charges for that Act’s purposes (ss 32-33). Subsection 33(2) expressly provides that the inclusion applies “despite anything in” the Expungement Act, limiting the practical effect of s 14 where the Working with Children Act applies.

These duties and rights allocate roles and legal consequences between applicants, the CEO/Department, data controllers and third parties. The Act emphasises administrative process, privacy and penalties for misuse while preserving particular public interest uses and screening functions through defined carve‑outs.

The Act creates a combination of administrative obligations, monetary penalties for non‑compliance or misuse, criminalised conduct connected to false or misleading statements, and enforcement pathways through administrative review and protected tribunal proceedings.

Monetary penalties and criminalised acts

• Failure to comply with CEO notices (to answer questions or provide documents): s 9(5) makes it an offence to fail, without reasonable excuse, to comply with a notice under s 9(4). The penalty is a fine of $2,000.
• Unauthorised disclosure of expunged conviction information: s 15(1) prohibits anyone with access to official criminal records from disclosing information about another person’s expunged conviction without lawful authority or consent. The penalty is a fine of $10,000.
• Fraudulent or dishonest obtaining of expunged‑conviction information: s 16 makes it an offence to fraudulently or dishonestly obtain, or attempt to obtain, information about another person’s expunged conviction from an official criminal record. The penalty is a fine of $10,000.
• Confidentiality breaches by persons in the administration of the Act: s 23(1) makes it an offence to record, disclose or make use of information obtained by reason of a function in administering the Act except in defined circumstances. The penalty is a fine of $10,000. Subsection (2) carves out statistical or non‑identifying uses.
• False or misleading information in applications or compliance: s 28(1) creates an offence for making statements known to be false or misleading in a material particular, omitting material matters that make statements misleading, or giving false information in connection with an application or compliance under the Act. The penalty is a fine of $10,000.

Enforcement mechanisms and administrative sanctions

• CEO’s investigatory powers and compelled assistance: s 9 empowers the CEO to take reasonable steps and inquiries and to issue notices requiring specified persons to answer questions or provide documents (s 9(1), (4)). Non‑compliance is punishable as above (s 9(5)).
• Revocation of expungement where obtained by false or misleading information: s 12(1) authorises the CEO to determine that a conviction is no longer an expunged conviction if it was expunged because the application included false or misleading information or documents. Procedural protections require notice, disclosure of relevant documents (with other persons’ personal information withheld), and a 14‑day opportunity to respond (s 12(2)-(5)). On revocation the CEO must notify relevant data controllers within 28 days and data controllers must annotate records to reflect that the conviction was expunged but is no longer so (s 12(6)-(7)).
• Protected process for refusals: before refusing an application, the CEO must give notice proposing refusal, provide copies of official criminal records in the CEO’s possession (with personal information about others withheld), and allow 14 days to submit further written information (s 11(4)-(5)). The CEO must give reasons in a written notice if a refusal is made and advise of review rights (s 11(6)).
• Review: affected persons may apply to the State Administrative Tribunal for review of a CEO refusal or a CEO determination revoking an expungement (s 18). Reviews must be commenced within 28 days of the CEO’s notice and are to be held in private (s 18(2)-(4)). The Act also renders certain evidence and documents produced in the review as protected matters (s 18(5)). The procedural protections in ss 11 and 12 couple with SAT review to provide an administrative appeals mechanism.

Limits on enforcement

• Use of evidence obtained under the Act is limited to administrative purposes: s 9(6) provides that information or documents obtained by the CEO under Part 2 may be used only for the administration of the Act. This narrows the downstream use of materials obtained during an application.
• The Act expressly preserves the Royal Prerogative of Mercy and confirms that the Act does not affect the prerogative (s 20). That means remedies via the prerogative remain available and are not displaced by the administrative expungement process.
• The Act disclaims any right to compensation for persons whose convictions are expunged, or for the fact of past prosecution, conviction, sentence or other consequences (s 19). This is a substantive limit on monetary claims against the State under the statute.

Practical enforcement implications

• Several provisions create criminal penalties that apply to both public sector officers (for example, confidentiality under s 23) and non‑state actors with access to official criminal records (s 15). Enforcement thus must be coordinated among prosecutorial authorities and agencies that control records.
• Data controllers have compulsory annotation duties with short timelines (28 days), and must report compliance to the CEO (ss 13(1)-(3)). Failure by data controllers to annotate or to locate records triggers reporting obligations, but the Act does not specify a direct monetary sanction against data controllers for failure, instead requiring reporting and placing obligations on the CEO to ensure annotation (s 13(3)-(4), s 21 subject to s 13).
• The CEO has wide investigatory discretions but procedural notice and review obligations act as counter‑balances: refusals and revocations must follow a prescribed notice and response process (ss 11(4)-(6), 12(2)-(5)) and are reviewable by the SAT (s 18).

Together, the penalties, compelled cooperation powers and review structure define an enforcement regime that relies on administrative action by the CEO, criminal sanctions for misuse of information and false statements, and privacy protections for applicants and other persons whose personal information may appear in official criminal records.

The Act explicitly cross‑references and modifies a number of other Acts and legal regimes, while preserving certain existing powers and exempting certain uses. The statutory text defines interaction rules rather than leaving them to judicial interpretation.

Interaction with the Spent Convictions Act 1988

• Conviction includes a spent conviction: s 3(1)(c) states that “conviction” includes a spent conviction as defined in s 3 of the Spent Convictions Act 1988 notwithstanding that Act’s usual protections (s 3(1)(c)). This ensures the expungement scheme can address convictions that would otherwise be spent under the Spent Convictions Act.
• Application of Spent Convictions Act anti‑discrimination provisions: s 17(1) provides that Part 3 Division 3 of the Spent Convictions Act applies to expunged convictions in the same manner as it applies to spent convictions. The Act also specifies Ministerial and Commission powers under the Equal Opportunity Act for discrimination matters related to expunged convictions (s 17(2)). This imports statutory anti‑discrimination protections and complaint/remedy processes from the Spent Convictions Act.

Interaction with the Working with Children (Criminal Record Checking) Act 2004

• The Act amends the Working with Children Act by altering the definition of “non‑conviction charge” to include expunged convictions (s 32). Section 8A is inserted to state that, for the purposes of that Act, a reference to a non‑conviction charge includes an expunged conviction as defined in this Act, and that subsection applies despite anything in the Expungement Act (s 33(1)-(2)). Functionally, this means that although an expunged conviction is taken not to be part of an official criminal record in most contexts (s 14), for Working with Children checks expunged convictions are treated as non‑conviction charges and therefore may be disclosed or considered pursuant to the Working with Children Act processes.

Interaction with the Health Practitioner Regulation National Law and other Acts

• s 15(3) states that the prohibition on disclosure of expunged conviction information has effect despite specified provisions of the Health Practitioner Regulation National Law (WA) and “any Act that provides that information relating to spent convictions may be disclosed.” This establishes the expungement Act’s disclosure prohibition as higher in priority to some disclosure authorisations found elsewhere, except where the Act itself provides exceptions (e.g. s 15(2)).

Interaction with criminal and court records systems

• Data controller definition: s 3(1) designates who controls official criminal records for the purposes of the Act, including the Police Force, DPP and various courts. Annotation obligations (s 13) therefore plug into existing criminal‑records infrastructure rather than creating a parallel registry.
• National police systems: s 15(2)(c) authorises the Commissioner of Police, or persons acting under their direction, to disclose to the Australian Crime Commission the fact that a specified conviction has become an expunged conviction for incorporation into the National Police Reference System. This creates an express channel by which state expungement decisions are represented in national police information systems, and the Act thereby recognises cross‑jurisdictional operational information flows.

Interaction with prerogative and compensation regimes

• Royal Prerogative preserved: s 20 expressly states the Act does not affect the Royal Prerogative of Mercy. The expungement scheme therefore operates alongside, and does not supplant, the prerogative as a distinct remedial avenue.
• No compensation under the Act: s 19 expressly states there is no entitlement to compensation by reason of a conviction becoming expunged, and covers various historical circumstances (charges, prosecutions, convictions, sentences, fines, loss or consequences). This provision limits any implied remedial rights against the State under the Act.

Interaction with tribunal and evidentiary law

• SAT review: s 18(2) permits affected persons to apply to the State Administrative Tribunal for review of CEO refusal or revocation decisions. The Act also imposes privacy constraints on such reviews and designates certain material as protected (s 18(4)-(5)). This interacts with the State Administrative Tribunal Act 2004, but the Act overrides s 61 of that Act to require private review (s 18(4)).
• Evidentiary presumptions: s 25 provides that documents purporting to be given by the CEO certifying whether an application was approved or refused are admissible and, in the absence of contradictory evidence, are proof of the matters stated and presumed to have been given by the CEO or a delegate. This provision interacts with general evidentiary rules by creating statutory proof of administrative determinations.

Other statutory interactions and regulatory authorisations

• Regulations and exemptions: s 29 enables the Governor to make regulations necessary to give effect to the Act and, without limiting that power, to provide that provisions of the Act do not apply in relation to specified convictions, classes of persons or circumstances. This creates a delegated legislative mechanism to adjust the Act’s scope over time.
• Annual reporting and review obligations: ss 30-31 require the CEO to report annually to the Minister with specified statistics and require the Minister to review the operation of the Act as soon as practicable after the fifth anniversary. These provisions interact with parliamentary oversight and administrative accountability frameworks.

Net effect on interplay of laws

• The Act both imports protections from the Spent Convictions Act and overrides disclosure permissions in certain statutes (s 15(3)), while also creating a special exception for Working with Children checks that applies despite the Act’s general non‑disclosure and non‑use rules (s 33(2)). Police disclosure to national systems is permitted (s 15(2)(c)). The Act therefore sits as a targeted carve‑in to the broader criminal‑records and regulatory landscape: it limits use and disclosure in many contexts, preserves archival and national police uses, imports spent‑conviction anti‑discrimination protections, and creates a specific statutory exception for child‑safety related screening.

The compilation table at the end of the Act provides the legislative metadata. The Act as compiled bears the following history in the source material provided:

• Title and enactment: Historical Homosexual Convictions Expungement Act 2018, Act No. 20 of 2018 (s. 1) (compilation table).
• Assent and commencement: received Royal Assent on 18 September 2018 (compilation table). Part 1 other than ss 3 and 4 commenced on the day of Royal Assent (s 2(a); compilation table). The remainder of the Act commenced by proclamation on 15 October 2018 (s 2(b); Gazette citation in compilation table).
• Schedule and defined terms: Schedule 1 lists the historical offences by reference to the Criminal Code provisions as they existed for specific historical date ranges (Schedule 1; s 3(1)). The Act therefore relies on historical textual variations of the Criminal Code for defining the scope of “historical homosexual offence.”
• Consequential amendments: the Act amends the Working with Children (Criminal Record Checking) Act 2004 by modifying the definition of “non‑conviction charge” (s 32) and by inserting s 8A to treat expunged convictions as non‑conviction charges for that Act (s 33). These are explicit consequential amendments made by the original amending instrument rather than later modifications.

No other amendments, repeals or insertions to this Act are recorded in the material supplied. The compilation table does not list any subsequent amendment acts, and the Bill as compiled shows the Act’s text in its enacted form. The source therefore indicates the Act was enacted in 2018, commenced in part on assent and fully by proclamation in October 2018, and included direct amendments to the Working with Children Act as part of its original enactment.

Procedural continuations and review provisions

• The Act requires the CEO to prepare an annual report and for the Minister to lay that report before Parliament within 14 sitting days (s 30). The Act also requires a statutory review of the operation and effectiveness of the Act as soon as practicable after the fifth anniversary of the coming into operation of s 31 (s 31). These provisions create mandatory review points which, while not amendments themselves, establish statutory triggers for possible future legislative change.

Regulatory scope

• Section 29(2) allows the Governor to make regulations that can exclude specified convictions, classes of persons or circumstances from parts of the Act. While that is not an amendment of the Act, it allows executive regulation to narrow or adjust application, and could materially alter the Act’s practical scope without primary‑law amendment.

Because the source contains no subsequent amending instruments, the amendment history in the supplied material is limited to the original enactment and the consequential amendments to the Working with Children Act. Any later changes would need to be verified in an up‑to‑date legislative database or Gazette not included in the provided text.

The statute text supplied contains no judicial decisions, case citations, or references to litigation arising under the Act. The Act itself does not list any cases and Schedule 1 simply lists historical Criminal Code provisions as they stood in specified ranges; it does not cite case law. The Act creates rights of review to the State Administrative Tribunal (s 18), but the source includes no account of tribunal decisions or judicial consideration.

What the Act establishes that could generate litigation

• Reviewable decisions: s 18 provides that affected persons may seek review of CEO refusals under s 11(2)(b) and determinations that convictions are no longer expunged under s 12(1). Those reviews are to be held in private and certain matters are protected (s 18(4)-(5)). Given that the Act provides for review, litigation at the tribunal level (and potentially judicial review if jurisdictional error or procedural unfairness arguable) is foreseeable, but none is recorded in the supplied text.
• Inter‑statutory conflict: the Act expressly states that s 33(2) (Working with Children Act insertion) applies “despite anything in” the Expungement Act. That legislative primacy reduces scope for litigation about the effect of expungements on Working with Children checks; however, disputes may arise about interpretation and application of the Working with Children Act in individual cases.
• Revocation decisions: s 12(1) permits the CEO to revoke an expungement on grounds of false or misleading information and requires notice and an opportunity to respond (s 12(2)-(5)). Challenges to revocation decisions may raise factual and procedural questions, including whether the CEO correctly applied the balance of probabilities test, whether the applicant had an opportunity to respond to material documents, or whether the CEO’s investigative steps were lawful. The Act does not itself record litigation arising from such disputes.
• Confidentiality and disclosure offences: the Act creates offences for unauthorised disclosure (s 15), fraudulent obtaining of information (s 16), and breaches of confidentiality in administration (s 23), which could lead to prosecutions. The supplied text contains no record of prosecutions or judicial outcomes.

In short, the Act provides several potential avenues for tribunal and criminal proceedings, but the source contains no litigation history. Any court or tribunal decisions interpreting statutory tests (for example, the two‑part test in s 10(1)(b)) or procedural requirements would be matters outside the provided compilation and would need to be sourced from jurisprudence databases.

The Act creates a straightforward expungement pathway, but several specific features may produce unexpected outcomes or practical pitfalls for applicants, data controllers, employers and advisors. These “gotchas” are drawn strictly from the Act’s text and how its mechanisms operate.

1. Annotation rather than erasure

• The Act requires annotation of official criminal records rather than destruction (s 13(2); s 21). Section 21 expressly states nothing in the Act authorises or requires destruction, culling or editing of documents containing official criminal records. So the underlying records will remain discoverable within the identified record systems, albeit annotated as expunged. That matters for information flows that are authorised by the Act (for example, s 15(2)(c) and the Working with Children amendment, ss 32-33).

2. Working with Children carve‑in

• Despite s 14’s broad statement that an expunged conviction is not part of an official criminal record and need not be disclosed, the Act amends the Working with Children Act so that, for the purposes of that Act, an expunged conviction is treated as a non‑conviction charge and s 33(2) says this applies “despite anything in” the Expungement Act. The operational effect is that child‑safety checks conducted under the Working with Children scheme may continue to record or use expunged convictions in ways that other employers or regulators cannot. Applicants and advisors should not assume expungement automatically eliminates visibility in working‑with‑children screening (ss 32-33).

3. Police disclosure to national systems

• Section 15(2)(c) permits the Commissioner of Police to disclose to the Australian Crime Commission the fact that a specific conviction has been expunged, for incorporation into the National Police Reference System. Even though s 15(1) limits disclosure by persons with access to official criminal records, this explicit exception allows the police to feed the expungement status into national law‑enforcement systems, potentially affecting information available to police and other authorised national users.

4. Revocation for false or misleading information

• The CEO can determine that an expunged conviction is no longer expunged if the expungement was obtained through false or misleading information or documents (s 12(1)). The CEO must follow notice and response procedures (s 12(2)-(5)), but revocation means the legal benefits of expungement cease from the date of determination (s 12(4)). Applicants should be aware that material inaccuracies or withheld facts in applications risk revocation and loss of expungement protection.

5. No compensation under the Act

• Section 19 disclaims entitlement to compensation for anything connected to a conviction being expunged, including prosecution, conviction, sentence, fines, loss or consequences. If applicants expect monetary redress as part of the expungement remedy, they will not find it in this Act; separate legal avenues (for example, general tort or administrative law claims) would not be created by the Act itself.

6. Confidentiality and criminal penalties

• Several offences carry significant fines for breaches of disclosure or confidentiality by public officers and others (ss 15, 16, 23 and 28). Data controllers and departmental officers must therefore be careful when handling expunged‑conviction information. Similarly, applicants must avoid providing false or misleading materials given the $10,000 penalty for doing so (s 28).

7. No oral hearings and evidence limits

• The CEO must not hold an oral hearing in deciding an application (s 9(2)). Evidence of consent where disputed is limited to written evidence from official records, a person involved in the conduct (other than the applicant), or, if no such person can be found after reasonable enquiries by the applicant, from another person with knowledge (s 10(3)). This evidentiary constraint can make it difficult for an applicant to rehabilitate contested factual issues when the only potentially live witnesses are the eligible person or persons the CEO cannot accept as sole evidence.

8. Short procedural timeframes for responses and annotation

• The CEO must determine applications “as soon as practicable” and must give 14 days’ notice and opportunity to respond before refusal or revocation (ss 11(1), 11(4)(a), 12(2)(a)). Data controllers must annotate records within 28 days of receiving CEO notification (s 13(2)) and the CEO must notify data controllers within 28 days of revocation (s 12(6)). Practitioners should calendar these deadlines when advising clients.

9. Evidence obtained for the Act is use‑limited

• Information acquired by the CEO under the Part can be used only for administration of the Act (s 9(6)). That limits the downstream legal use of investigatory materials produced during the application process, which may be a surprise to those who assume material gathered during administrative review can fuel other prosecutions or civil claims without separate legal bases.

10. Protected, private reviews

• Reviews to the State Administrative Tribunal are to be held in private and the Tribunal may exclude persons (s 18(4)). Material tendered is a protected matter (s 18(5)). While this protects applicant privacy, it also limits public scrutiny and the development of jurisprudence on borderline issues. Practitioners should plan litigation strategy accordingly.

11. Scope depends on Schedule 1 and regulations

• The list of historical offences relies on Schedule 1 and any offences the regulations may prescribe for the definition of “historical homosexual offence” (s 3(1)(b) and Schedule 1). The Governor has regulation‑making power to exclude convictions or classes of persons from the Act (s 29(2)), potentially changing who benefits without a primary amendment. Advisers should monitor subordinate instruments.

These elements mean expungement is a significant remedial device with constrained, technical pathways; practitioners must pay attention to evidence, deadlines, record‑management consequences and carve‑outs that preserve certain public‑safety and police information flows.

This section provides a practical, source‑grounded checklist for applicants, advisors, data controllers and departmental officers seeking to comply with statutory obligations and to manage risks established by the Act. All steps reference the relevant provisions.

For applicants (eligible persons) and third‑party applicants

1. Confirm eligibility

• Verify that the conviction is for a “historical homosexual offence” as defined (Schedule 1 or a prescribed offence). The schedule lists specified historical Criminal Code provisions and date ranges; if uncertain, seek a records check or legal advice (s 3(1), Schedule 1).

2. Use the CEO approved form and include required content

• Lodge an application in the CEO‑approved form and ensure it contains the mandatory information under s 6(1): full name, contact details, eligible person’s names and aliases, date/place of birth, residential address at the time of the offence and conviction, an address for notices, and detailed particulars of the court, date and nature of the conviction and conduct. Include any prescribed information and any additional documents the CEO requires (s 5(3), s 6(1), s 6(1)(f)-(g)).

3. Include consent

• If applying as the eligible person, attach the consent authorising data controllers to disclose records to the CEO (s 6(2)(a)). If applying as a third party, confirm that the application is treated as including the eligible person’s consent (s 6(2)(b)). Ensure the consent is properly signed and covers the necessary data controllers.

4. Assemble documentary evidence and third‑party statements

• Where possible, assemble official court records, police records, witness statements (including from persons other than the applicant who were involved in the conduct), and any historical material that shows the context of the charge and whether consent or ages are relevant (s 6(3), s 10(2)-(3)). Remember the CEO will rely on written evidence where consent is disputed (s 10(3)).

5. Answer notices promptly

• If the CEO requests further information under s 7(1) or s 9(3), respond within the specified 28 days or secure a justified extension. Failure to comply may result in the CEO treating the application as withdrawn (s 7(1), s 8(2)). If the CEO issues a notice under s 9(4) to other persons who might provide information, those persons have a legal duty to answer unless they have a reasonable excuse (s 9(4)-(5)).

6. Avoid false or misleading statements

• Do not provide information known to be false or misleading. Breaches attract a $10,000 penalty (s 28). If factual disputes exist, disclose them candidly and provide corroborative evidence if available.

7. Keep copies and track timeframes

• Record the date of application, any CEO notices and the 14‑day windows for responding to proposed refusals or revocation notices (ss 11(4)(a), 12(2)(a)). If refused, note the 28‑day limit to apply to the State Administrative Tribunal (s 18(3)).

8. Prepare for possible revocation

• Understand that if expungement is later found to have been obtained by false or misleading information, the CEO may revoke the expungement after procedural notice (s 12). Maintain records and be ready to respond within the 14‑day period set out in s 12(2)(a).

For data controllers and record managers (Police, DPP, courts, prescribed bodies)

1. Comply with CEO notifications promptly

• On receipt of notification of approval, annotate any entry relating to the expunged conviction in official criminal records within 28 days (s 13(2)). Notify the CEO in writing as soon as reasonably practicable whether annotation has been completed or whether records could not be located (s 13(3)).

2. Annotation detail and revocation annotations

• When notified that a conviction is no longer expunged, annotate the entries to reflect that the record relates to a conviction that was expunged but is no longer expunged (s 12(7)). Keep an auditable trail of annotations and notifications.

3. Preserve records

• Do not destroy, cull or edit documents containing official criminal records because the Act does not authorise such actions (s 21). Annotation obligations should be performed against existing records.

4. Ensure secure handling and limit disclosure

• Treat information about expunged convictions as sensitive. Unlawful disclosure attracts a $10,000 penalty under s 15(1) and confidentiality breaches under s 23(1) are similarly penalised. Only disclose in circumstances permitted by the Act (for example, CEO notices, authorised archival releases under s 15(2)(a), or police disclosure to the ACC under s 15(2)(c)). When supplying official criminal records to applicants before a refusal or revocation, withhold personal information about other persons (s 11(4)(b), s 12(2)(b)).

5. Coordinate with the CEO

• Where you cannot locate records relating to an expunged conviction, inform the CEO promptly in writing so the CEO can progress annotation, reporting and applicant notification (s 13(3)(b)). Maintain contact details for the CEO’s unit responsible for expungement notifications.

For the CEO and departmental officers

1. Process applications without oral hearings

• The CEO must not hold an oral hearing (s 9(2)). Make determinations on the material provided and through written inquiries. Use notices under s 9(3) and s 9(4) to obtain necessary evidence.

2. Apply statutory tests consistently

• Ensure determinations comply with s 10: confirm the offence is a historical homosexual offence and be satisfied on the balance of probabilities that the person was charged because they were suspected of homosexual‑nature conduct and that the conduct would not be an offence now. Document how consent and age considerations were weighed (s 10(1)-(3)).

3. Follow notice and procedural safeguards

• Before refusing or revoking, give the applicant and, where practicable, the eligible person, notice of the proposed decision and provide 14 days for further written information; provide copies of official criminal records in possession with other persons’ personal information withheld (s 11(4)-(6), s 12(2)-(5)). Record reasons and ensure the written decision sets out review rights.

4. Notify data controllers and manage annotation completion

• On approval, notify relevant data controllers within 28 days (s 13(1)). Track compliance with their 28‑day annotation duty and advise applicants when all necessary annotations are complete (s 13(4)).

5. Limit use of obtained material

• Ensure materials obtained under Part 2 are used only for administering the Act (s 9(6)). Where further use is contemplated, secure separate legal authority.

6. Maintain confidentiality and data security

• Personal information obtained in administration must be handled in compliance with s 23. Withhold non‑eligible person personal data when sharing records in the procedural notice process (s 11(5), s 12(3)). Ensure staff are aware of $10,000 penalties for unauthorised disclosure.

7. Keep accurate reporting for annual report and five‑year review

• Collect the statistics required by s 30 to enable annual reporting (application counts, approval/refusal numbers, grounds, average decision time, revocations and SAT reviews). Maintain systems to provide the ministerial five‑year review required by s 31.

For employers, screening organisations and advisors

1. Do not assume universal invisibility post‑expungement

• s 14 grants broad non‑disclosure and non‑use protections, but these do not apply for Working with Children Act screening (ss 32-33) and authorised police disclosure to national systems (s 15(2)(c)). For positions requiring Working with Children checks, expunged convictions are treated as non‑conviction charges under the Working with Children Act.

2. Respect discrimination prohibitions

• s 17 applies the Spent Convictions Act Part 3 Division 3 to expunged convictions and imports anti‑discrimination enforcement pathways. Treat claims of discrimination involving expunged convictions under those statutory frameworks.

3. Seek evidence of expungement where necessary

• If a prospective employee claims an expungement, request a CEO certification under s 25 (a document certifying whether an application in respect of a specified conviction was approved or refused is admissible and presumed valid in the absence of contrary evidence).

Following these steps aligns practice with the Act’s timelines, evidentiary standards, confidentiality constraints and enforcement risks. The text creates a primarily document‑based administrative path where accuracy, timely responses and careful handling of personal data are the critical compliance levers.