New South Wales Consolidated Acts

CRIMINAL RECORDS ACT 1991 - SECT 19C

19C Eligible homosexual offence convictions may be extinguished

(1) A conviction for an eligible homosexual offence becomes an extinguished conviction when the Secretary, by notice in writing given to the applicant, decides that he or she is satisfied that the other person involved in the sexual activity constituting the offence--

(a) consented to the sexual activity, and

(b) was of or above--

(i) the age of 16 years, or

(ii) if the other person was under the special care of the convicted person (within the meaning of section 73 (3) of the Crimes Act 1900 )--the age of 18 years.

Note : Section 73 (3) of the Crimes Act 1900 provides that a person (
"the victim" ) is under the special care of another person (
"the offender" ) if, and only if--

(a) the offender is the step-parent, guardian or foster parent of the victim or the de facto partner of a parent, guardian or foster parent of the victim, or

(b) the offender is a member of the teaching staff at the school at which the victim is a student, or

(c) the offender has an established personal relationship with the victim in connection with the provision of religious, sporting, musical or other instruction to the victim, or

(d) the offender is a custodial officer of an institution of which the victim is an inmate, or

(e) the offender is a health professional and the victim is a patient of the health professional.

(2) Before making a decision under this section, the Secretary may, by notice in writing, request the applicant to provide further information specified in the notice. The Secretary may refuse to make a decision under this section if the request has not been complied with.

(3) If the Secretary intends to make a decision that will result in the conviction for an eligible homosexual offence not becoming an extinguished conviction, the Secretary must--

(a) by notice in writing, inform the applicant of that intention, and

(b) provide the applicant with a copy of any historical records relating to the conviction in the possession of the Secretary, and

(c) give the applicant 14 days from the date of that notice to submit further information to the Secretary regarding the application.

(4) The Secretary is not to hold an oral hearing for the purpose of making a decision under this section.

(5) The Secretary may delegate the exercise of any function of the Secretary under this section (other than this power of delegation) to--

(a) any member of staff of the Department of Justice, or

(b) any person, or any class of persons, authorised for the purposes of this section by the regulations.