Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1698942596183.pdf (New Zealand)
Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill Government Bill Explanatory note General policy statement Purpose and overview This Bill provides an expungement scheme to reduce prejudice, stigma, and all other negative effects, arising from a conviction for a historical homosexual offence by— • • enabling an application for expungement of the conviction to be made to the Secretary for Justice by an eligible person (before that person’s death) or a representative (after the eligible person’s death); and expunging the conviction if the Secretary’s decision on the application is that, on the balance of probabilities, the conviction meets the test for expungement.
The test for expungement is that the conduct constituting the offence, if engaged in when the application was made, would not constitute an offence under the laws of New Zealand.

General policy sought to be achieved The Homosexual Law Reform Act 1986 decriminalised sexual conduct between con- senting males aged 16 years and older.

The right to be free from discrimination on the grounds of homosexual orientation was later recognised in the Human Rights Act 1993.
Allowing historical convictions for homosexual offences to remain on a person’s criminal history perpetuates the stigma that those convictions carry.

A person can be further disadvantaged if the person is required to disclose the person’s convic- tion or it appears on a criminal history check.

A conviction can limit opportunities to obtain employment.
Other jurisdictions, including in the United Kingdom and Aus- tralia, have responded to this issue by introducing schemes to allow people to have their convictions expunged.

274—1 2 Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill Explanatory note This Bill addresses the stigma and prejudice faced by people with historical convic- tions for specific homosexual offences by providing a statutory scheme to allow them to apply to have their convictions expunged.
If a person’s application is approved under the scheme, the person’s criminal record will be amended to ensure the convic- tion does not appear on a criminal history check for any purpose in New Zealand and the person will be entitled to declare the person has no conviction.

While an official record of the expunged conviction will have to be retained as a matter of fact and social history, for practical purposes within New Zealand it would be treated as if the person had not been convicted.
This Bill excludes any entitlement to compensation for the effects of the conviction.

Compensation of that kind would go beyond the purpose of the expungement scheme, which is to prevent further stigma, or other negative effects, of a conviction.

There is no general principle that a person who is convicted of a repealed offence is entitled to compensation on the repeal of the offence.

If a person has been wrongfully convicted, there are existing avenues to seek compensation.
In this instance, there is no sugges- tion that the convictions in question were wrongfully imposed as they were in accord- ance with the law at the time.

Other jurisdictions that have introduced expungement schemes, for example in Australia, also specifically exclude compensation.

The expungement scheme will apply only to specified repealed offences.

The test will be that the conduct would not constitute an offence if engaged in when the application was made.
The primary issues will be whether each person involved in the conduct consented to that conduct and that all participants were aged 16 years or older.

The scheme will not apply to people convicted of public order offences that may have in- volved consensual homosexual conduct (as other offending may have been involved).

Including a broader range of offences in the scheme would make it considerably more complex and resource intensive, and is not appropriate at this time.
The Bill provides that the Secretary for Justice will have responsibility for determin- ing applications for the expungement of specified convictions.

The primary obligation to provide information in support of an application will fall on the applicant, and the Secretary will be able to obtain further information the Secretary considers necessary to be able to make a proper assessment of the application.
The Secretary does not have any other functions or interests that impair the Secretary’s ability to assess these applications independently and properly.

The application process will be relatively simple and will take place on the papers, without the need for an oral hearing.

Similar overseas jurisdictions have also designated senior public servants with responsibility for these types of decisions.
Comparable overseas legislation A number of overseas jurisdictions have legislated, or are in the process of legislat- ing, to reduce negative effects of convictions for historical homosexual offences.
See, for example, the following proposed or enacted legislation: • Australian Capital Territory—Part 3A (extinguishing historical homosexual of- fence convictions) of the Spent Convictions Act 2000 (ACT), as inserted on Explanatory note Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill 3 7 November 2015 by the Spent Convictions (historical Homosexual Convic- tions Extinguishment) Amendment Act http:// www.austlii.edu.au/cgi-bin/sinodisp/au/legis/act/consol_act/sca2000222/ index.html (ACT) — 2015 • • • • • New South Wales—Part 4A (extinguishing convictions for historical homosex- ual offences) of the Criminal Records Act 1991, as inserted on 24 Novem- ber 2014 by the Criminal Records Amendment (Historical Homosexual Offences) Act 2014 (NSW) — http://www.austlii.edu.au/cgi-bin/sinodisp/au/ legis/nsw/consol_act/cra1991167/index.html South Australia—Section 8A (spent conviction for an eligible sex offence) of the Spent Convictions Act 2009, as inserted by the Spent Convictions (Decri- minalised Offences) Amendment Act 2013 (South Australia) — http:// www.austlii.edu.au/cgi-bin/sinodisp/au/legis/sa/num_act/ scoaa201388o2013524/index.html Tasmania—Historical Homosexual Convictions Bill 2016 (Tas) — exposure draft (consultation closed 26 July 2016) at http://www.justice.tas.gov.au/ community-consultation/inactive/historical_homosexual_convic- tions_bill_2016 and Expungement of Historical Offences Bill (17 OF 2017) — http://www.austlii.edu.au/au/legis/tas/bill/eohob17o2017371/ http:// www.parliament.tas.gov.au/bills/pdf/17_of_2017.pdf and United Kingdom—Chapter 4 (disregarding certain convictions for buggery etc) of the Protection of Freedoms Act 2012 (UK) — http://www.legislation.gov.uk/ ukpga/2012/9/contents — and sections 164 to 172 (pardons for certain abolish- ed offences etc) of the Policing and Crime Act 2017 — http://www.legis- lation.gov.uk/ukpga/2017/3/contents/enacted Victoria—Part 8 (historical homosexual convictions) of the Sentencing Act 1991 (Vict), as inserted on 1 September 2015 by the Sentencing Amendment (Historical Homosexual Convictions Expungement) Act 2014 (Vict) — http:// www.austlii.edu.au/au/legis/vic/consol_act/sa1991121/index.html Departmental disclosure statement The Ministry of Justice is required to prepare a disclosure statement to assist with the scrutiny of this Bill.
The disclosure statement provides access to information about the policy development of the Bill and identifies any significant or unusual legislative features of the Bill.

A copy of the statement can be found at http://legislation.govt.nz/disclosure.aspx?
type=bill&subtype=government&year=2017&no=274 Regulatory impact statement The Ministry of Justice produced a regulatory impact statement on 8 December 2016 to help inform the main policy decisions taken by the Government relating to the con- tents of this Bill.
4 Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill Explanatory note A copy of this regulatory impact statement can be found at— • • https://justice.govt.nz/assets/Documents/Publications/ris-expungement- scheme-for-historical-homosexual-convictions.pdf http://www.treasury.govt.nz/publications/informationreleases/ris Clause 1 is the Title clause.

Clause by clause analysis Clause 2 relates to commencement.
The Act is to come into force on the day after the date of Royal assent.

Part 1 General provisions Clause 3 states the purpose of the Act.

Clause 4 is the interpretation clause.


Key terms defined are— • • • • • • criminal record (see also clauses 11 to 13): eligible person (see also clauses 14 and 15): expunged conviction (see also clauses 14 to 21): historical homosexual offence or historical offence (see clause 5): representative (see also clauses 14 and 15): Secretary (however, the Secretary may, under section 41 of the State Sector Act 1988, delegate all or any of the Secretary’s functions or powers imposed or conferred by the Bill).
Clause 5 defines a historical homosexual offence or historical offence (a conviction for which can be expunged).

Clause 6 relates to transitional, savings, and related provisions (which are set out in Schedule 1).

Clause 7 ensures that the Act binds the Crown.

Part 2 Expungement of convictions Test for, and effects of, expungement Clause 8 states the test for expungement.
The test is that the conduct constituting the offence, if engaged in when the application was made, would not constitute an of- fence under the laws of New Zealand.
In particular, in considering whether a convic- tion for a historical offence meets the test, the Secretary must (if relevant) have regard to— Explanatory note Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill 5 • • whether each person involved in the conduct constituting the offence consented to that conduct; and the age, at the time of the conduct constituting the offence, of each person in- volved in that conduct.
Clause 9 makes clear the general effects of expungement.

They include the convicted person not being required to disclose to any other person for any purpose (including when giving evidence on oath or affirmation in a legal proceeding) information con- cerning any criminal record of the expunged conviction.

Clause 9 follows closely sec- tion 105J of the Sentencing Act 1991 (Vict), inserted by the Sentencing Amendment (Historical Homosexual Convictions Expungement) Act 2014 (Vict).
Expungement is for the purposes only of the laws of New Zealand.

This is similar to the clean slate regime.
Section 14(3)(b) of the Criminal Records (Clean Slate) Act 2004 makes it clear that section 14(1) or (2) of that Act does not authorise an eligible individual to answer a question asked of the individual about the individual’s criminal record by stating that the individual has no criminal record if the question is asked— • • under the jurisdiction of the law of a foreign country while the individual is outside New Zealand; or while the individual is in New Zealand and in respect of a matter dealt with by the law of a foreign country (for example, a question asked on an application form by the immigration or customs agency of a foreign country).
Clause 10 is about the Act’s relationship with other laws.

The Act does not limit or affect the application to the convicted person of, or that person’s rights under,— • • • the Criminal Records (Clean Slate) Act 2004; or the Royal prerogative of mercy; or any enactment under which the convicted person may request information about, or a copy of, the convicted person’s own criminal record.

Clause 11 indicates what must be done by departments and agencies that hold crim- inal records.
Clause 11 applies to the chief executive of a government department or law enforcement agency that holds, or has access to, criminal records.
Clause 11 re- quires the chief executive to take all reasonable steps to ensure that the department or agency, and any employee or contractor of the department or agency,— • • conceals criminal records of an expunged conviction when requests are made (other than by the convicted person) for their disclosure; and does not use criminal records of convicted persons other than for a purpose authorised under the Act.

The reasonable steps include the development of policies and procedures.
Clause 11 is based on, and imposes duties the same in substance as those imposed by, section 15 of the Criminal Records (Clean Slate) Act 2004.

6 Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill Explanatory note Clause 12 indicates how expungement affects requests to disclose, and use of, crim- inal records.

Clause 12 is based on, and imposes duties the same in substance as those imposed by, section 16 of the Criminal Records (Clean Slate) Act 2004.
Clause 13 makes it an offence for a person who has access to criminal records to dis- close unlawfully information required to be concealed.

The offence is punishable, on conviction, by a fine not exceeding $20,000.

The offence, and penalty, are consistent with those under section 17 of the Criminal Records (Clean Slate) Act 2004.

Howev- er, clause 13(2) and (3) states exceptions particular to this Bill.

Process for making and deciding application Clause 14 relates to an application for expungement.
Clause 15 relates to requests for a decision that a person can represent a deceased convicted person for an application for expungement of a conviction.

A request will be made only by a person who wishes to be a representative under paragraph (d) of the definition of that term in clause 4 (because the person is not a representative under paragraph (a), (b), or (c) of that definition).
The Secretary’s decision must be based on whether the representation concerned would be in the interests of the de- ceased convicted person.

Clause 16 enables the Secretary, before making a decision under clause 15, 18, or 19, to seek from a person, by written notice, any further document, thing, or information, necessary to enable the Secretary to make the decision.
Clause 17 provides that a person commits an offence if the person, without reason- able excuse, fails or refuses to comply with a notice under clause 16 to the extent that the person is capable of doing so.

(But the offence does not apply to the eligible per- son or representative, or to the chief executive, or any employee or contractor, of a government department, or law enforcement agency, that holds, or has access to, criminal records.)
Clause 18(1) requires the Secretary to decide an application for expungement by making, in accordance with clause 8, a written decision whether the conviction meets the test for expungement.

Clause 18(2) requires the decision to be copied promptly to the eligible person or representative and, if it is to the effect that the conviction does not meet the test for expungement, to include written reasons for that decision.

Clause 19 enables the Secretary to reconsider a decision made under clause 15 or 18.
The power to reconsider may be used on all or any of the following grounds: • • further relevant information has become available to the Secretary since the de- cision was made: the decision was made on an application that included, or was supported by, all or any of the following: • • false or misleading information: documents that are false or misleading: Explanatory note Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill 7 • any other grounds that the Secretary is satisfied make it, or may make it, neces- sary or desirable to reconsider the decision.
Clause 20 is about evidence, independence, and process.
Clause 20 ensures that, in making a decision under clause 15, 18, or 19, the Secretary— • • • may receive as evidence any statement, document, information, or matter that, in the Secretary’s opinion, may help the Secretary to decide the application, whether or not it would be admissible in a court of law; and must act independently; and must decide on the papers, unless the Secretary considers that an oral hearing should be conducted because there are exceptional circumstances and it is ap- propriate to do so in the interests of justice.
Clause 21 ensures that no person who provides information in, or in support of, an application or request under the Act is criminally or civilly liable for the action of providing the information if that action— • • was taken in good faith; and was reasonable in the circumstances.

No entitlement to compensation Clause 22 makes it clear that expungement of a conviction gives rise to no entitle- ment to compensation.
Hon Amy Adams Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill Government Bill Contents Page Title Commencement Part 1 General provisions Purpose of this Act Interpretation Historical homosexual offence defined Transitional, savings, and related provisions Act binds the Crown Part 2 Expungement of convictions Test for, and effects of, expungement Test for expungement General effects of expungement Relationship with other laws Duties of departments and agencies that hold criminal records Effect of expungement on requests to disclose, and use of, criminal records Offence to disclose unlawfully information required to be concealed Process for making and deciding application Application for expungement Request to represent deceased convicted person 274—1 2 2 2 2 4 4 4 5 5 6 6 6 7 7 8 1 cl 1 Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill Further documents, things, or information Offence to fail or refuse to comply with notice Secretary decides application Reconsideration of decisions Evidence, independence, and process Protection for person providing information No entitlement to compensation No entitlement to compensation Schedule 1 Transitional, savings, and related provisions 8 9 9 9 10 10 10 12 The Parliament of New Zealand enacts as follows: 1 2 Title This Act is the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Act 2017.
Commencement This Act comes into force on the day after the date on which it receives the Royal assent.
Part 1 General provisions 3 Purpose of this Act The purpose of this Act is to reduce prejudice, stigma, and all other negative effects, arising from a conviction for a historical homosexual offence by— (a) (b) enabling an application for expungement of the conviction to be made under this Act by an eligible person (before that person’s death) or a rep- resentative (after the eligible person’s death); and expunging the conviction if the Secretary’s decision on the application is that, on the balance of probabilities, the conviction meets the test for ex- pungement.
4 Interpretation In this Act, unless the context otherwise requires,— convicted person, in relation to a conviction, means the person against whom the conviction is entered criminal record, of a conviction for a historical offence, means any official re- cord (including an electronic record) that is kept by, or on behalf of, the Crown (including by a government department or law enforcement agency) of— 2 Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill Part 1 cl 4 (a) (b) (c) (d) charges that result in the conviction; and the conviction as entered (including any item on a list of previous con- victions); and sentences imposed or other dispositions of the case (including any item on a list of previous sentences); and 5 orders that, as a result of the conviction, are imposed on, or made in re- spect of, the convicted person or any other offender eligible person, for a conviction for a historical offence, means the convicted person expunged conviction means a conviction that— (a) (b) has been expunged under section 8; and has not ceased to be an expunged conviction under section 19 government department means a department named in Schedule 1 of the State Sector Act 1988 historical homosexual offence or historical offence has the meaning given to it by section 5 including means including without limitation (to the matters specified) 10 15 law enforcement agency means— (a) (b) an agency that holds, or has access to, information described in Sched- ule 5 of the Privacy Act 1993; and 20 the Ministry of Business, Innovation, and Employment, the Inland Reve- nue Department, and the New Zealand Customs Service legal proceeding means— (a) (b) a proceeding conducted by a court, or by a person acting judicially; and any interlocutory or other application to a court, or to a person acting ju- dicially, and connected with that proceeding 25 representative, for a conviction for a historical offence, after the convicted person’s death, means any of the following: (a) (b) (c) (d) the executor, administrator, or trustee of, acting on behalf of, the estate of the convicted person: 30 a spouse, civil union partner, or de facto partner, of the convicted person: a parent, sibling, or child, of the convicted person: a person who the Secretary has decided under section 15 can represent the convicted person for an application for expungement of the convic- tion (and see also section 14(2)) 35 Secretary means the Secretary for Justice.
3 Part 1 cl 5 Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill 5 (1) Historical homosexual offence defined In this Act, unless the context otherwise requires, historical homosexual of- fence or historical offence means (whenever the plea or finding of guilt, or conviction, was made or entered) an offence against, or involving, any of the relevant repealed sections as in force at any time— (a) (b) on or after 4 August 1908 (which is the date on which the Crimes Act 1908 came into operation); and before 8 August 1986 (which is the date on which the Homosexual Law Reform Act 1986 came into force).
(2) The relevant repealed sections are— (a) (b) (c) (d) (e) section 141 (indecency between males) of the Crimes Act 1961: section 142 (sodomy) of the Crimes Act 1961: section 146 (keeping place of resort for homosexual acts) of the Crimes Act 1961: section 153 (unnatural offence) of the Crimes Act 1908, but only to the extent that the section covers committing buggery with any other male human being: section 154 (attempt to commit unnatural offence) of the Crimes Act 1908, but only to the extent that the section covers attempting to commit buggery with any other male human being, assault with intent to commit buggery with any other male human being, and indecently assaulting any other male human being.
(3) The definition in subsection (1) applies regardless of whether the offence was committed in all or any of the following ways (if applicable): 5 10 15 20 (a) (b) (c) as any, or the only, principal offender for the offence, or as a party to the offence: 25 as an attempt to commit the offence (unless the offence is itself specified as, or provides it may be completed on, an attempt): by way of a conspiracy to commit the offence (alone, or with 1 or more other offences): 30 (d) by being an accessory after the fact in relation to the offence.
Transitional, savings, and related provisions The transitional, savings, and related provisions set out in Schedule 1 have effect according to their terms.

Act binds the Crown This Act binds the Crown.
35 6 7 4 Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill Part 2 cl 9 Part 2 Expungement of convictions Test for, and effects of, expungement 8 Test for expungement (1) A conviction for a historical offence is expunged if— (a) (b) an application for expungement of the conviction is made under this Act by an eligible person or a representative (see sections 14 and 15); and the Secretary’s decision on the application is that, on the balance of probabilities, the conviction meets the test for expungement (see sec- tion 18).
The test is that the conduct constituting the offence, if engaged in when the ap- plication was made, would not constitute an offence under the laws of New Zealand.

General effects of expungement If a conviction for a historical offence is an expunged conviction, its expunge- ment has, for the purposes only of the laws of New Zealand, the effects set out in this section.
(2) 9 (1) (2) A question about the convicted person’s criminal history (including one put in a legal proceeding and required to be answered under oath or affirmation) is to be taken not to refer to any criminal record of the expunged conviction, but to refer only to any criminal record of any conviction that the person has that is not expunged.
(3) The convicted person is not required to disclose to any other person for any purpose (including when giving evidence on oath or affirmation in a legal pro- ceeding) information concerning any criminal record of the expunged convic- tion.
(4) In the application to the convicted person of an enactment or arrangement (in- cluding an agreement, contract, deed, or trust),— (a) (b) a reference to a conviction, however expressed, is to be taken not to refer to any criminal record of the expunged conviction; and 30 a reference to the convicted person’s character or fitness, however ex- pressed, is not to be taken as allowing or requiring account to be taken of any criminal record of the expunged conviction.
(5) Any criminal record of the expunged conviction, or the non-disclosure of any criminal record of the expunged conviction, is not a proper ground for— 35 (a) refusing the convicted person any appointment, post, status, or privilege; or 5 Part 2 cl 10 Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill (6) 10 (1) (2) (3) 11 (1) (2) (b) revoking any appointment, status, or privilege held by the convicted per- son, or dismissing the convicted person from any post.
The fact that a refusal, revocation, or dismissal of that kind occurred, solely on account of any criminal record of that conviction, before the conviction became an expunged conviction is not a proper ground for a refusal, revocation, or dis- missal, solely on account of any criminal record of that conviction, occurring after the expungement.
5 Compare: Sentencing Act 1991 s 105J (Vict) Relationship with other laws This Act does not limit or affect the application to the convicted person of the Criminal Records (Clean Slate) Act 2004.

10 This Act does not limit or affect the application to the convicted person of the Royal prerogative of mercy.

This Act does not limit or affect the convicted person’s rights under any enact- ment to request information about, or a copy of, the convicted person’s own criminal record.
15 Compare: 2002 No 9 s 144; 2004 No 36 s 21(3) Duties of departments and agencies that hold criminal records This section applies to the chief executive of a government department or law enforcement agency that holds, or has access to, criminal records.
20 The chief executive must take all reasonable steps to ensure that the department or agency, and any employee or contractor of the department or agency,— (a) (b) conceals criminal records of an expunged conviction when requests are made (other than by the convicted person) for their disclosure; and does not use criminal records of convicted persons other than for a pur- pose authorised under this Act.

25 (3) The reasonable steps include the development of policies and procedures.
Compare: 2004 No 36 s 15 Effect of expungement on requests to disclose, and use of, criminal records This section applies to a government department or law enforcement agency, or any employee or contractor of a government department or law enforcement agency, that holds, or has access to, criminal records.
The department, agency, employee, or contractor, in responding to a request for the disclosure of a convicted person’s criminal record or any information about a convicted person’s criminal record (other than a request from the convicted person to whom the request relates), must not disclose the criminal record of an expunged conviction.
30 35 12 (1) (2) 6 Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill Part 2 cl 14 (3) The department, agency, employee, or contractor is not entitled to use criminal records of an expunged conviction other than for a purpose authorised under this Act.
Compare: 2004 No 36 s 16 13 Offence to disclose unlawfully information required to be concealed 5 (1) A person who has access to criminal records commits an offence if the per- son— (a) discloses to any person, body, or agency the criminal record, or informa- tion about the criminal record, of an expunged conviction that is required to be concealed; and (2) (3) (b) discloses that record or that information knowing that the person does not have, or being reckless as to whether or not the person has, lawful authority under this Act.
Subsection (1) does not apply if— (a) written consent to the disclosure has been given by, or by a person who is authorised by law to give written consent on behalf of, the convicted person; or (b) the disclosure is otherwise authorised by law.
Subsection (1) does not prevent the following (each of which is, for the pur- poses of subsection (2)(b), authorised by law): (a) any research, or publication, that relates to historical offences, expunged convictions, or both, and that is anonymised (because it does not iden- tify, and is not likely to lead to the identification of, any person who has an expunged conviction): (b) any disclosure or communication necessary or desirable for the adminis- tration of this Act (including for recording in criminal records that a con- viction has become an expunged conviction).
(4) A person who commits an offence against subsection (1) is liable on convic- tion to a fine not exceeding $20,000.

Compare: 2004 No 36 s 17; Sentencing Act 1991 s 105K(6)–(8) (Vict) Process for making and deciding application 14 Application for expungement (1) An application for expungement of a conviction for a historical offence may be made by— (a) (b) an eligible person (before that person’s death); or a representative (after the eligible person’s death).
(2) A representative, in this section, includes a person who makes, and includes in the application, a request under section 15.
10 15 20 25 30 35 7 Part 2 cl 15 Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill (3) The application— (a) must be made in the form and manner (if any) approved by the Secre- tary; and (b) may include a request under section 15 (see subsection (2)); and (c) must include any supporting information, and supporting submissions, the eligible person or representative wishes the Secretary to consider.
5 (4) Nothing in this Act prevents a person (including an agent, a donee of an endur- ing power of attorney, or a welfare guardian) from acting under this Act on be- half of an eligible person or a representative.
15 (1) (2) (3) (4) (5) 16 (1) Request to represent deceased convicted person This section applies to a conviction for a historical offence if the convicted per- son has died and a person wishes to make an application for expungement of the conviction as a representative under paragraph (d) of the definition of that term in section 4.
The person may, by a written request made to the Secretary, ask the Secretary to decide that the person can represent the convicted person for an application for expungement of the conviction.

If a person makes a request under this section, the Secretary must decide as soon as is reasonably practicable whether the person can represent the convic- ted person for an application for expungement of the conviction.
The Secretary’s decision must be based on whether the representation con- cerned would be in the interests of the deceased convicted person.

The decision must be in writing copied promptly to the requester.
10 15 20 Further documents, things, or information This section applies if, in making a decision under section 15, 18, or 19, the Secretary believes on reasonable grounds that any document, thing, or in- formation— 25 (a) (b) (c) is necessary to enable the Secretary to make the decision; and is not available to the Secretary, but is, or may be, in the possession of, under the control of, or available from, a person; and 30 is unlikely to be able to be obtained by the Secretary through any means other than a notice under this section.
(2) The Secretary may, by written notice given to the person, seek from the person all or any of the following: (a) access to, or a copy, duplicate, or reproduction of, or extract from, any document or thing that is or may be relevant to, or to specified aspects of, the decision: 35 8 Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill Part 2 cl 19 (b) information or further information (including written evidence given on oath or affirmation and by affidavit) that is or may be relevant to, or to specified aspects of, the decision.
17 Offence to fail or refuse to comply with notice (1) A person (other than one specified in subsection (2)) commits an offence if 5 the person, without reasonable excuse,— (2) (3) 18 (1) (2) 19 (1) (2) (a) (b) fails to produce, or to allow access to, or copying, duplication, or repro- duction of, or the taking of extracts from, any document or thing, as re- quired by a notice under section 16, to the extent that the person is capable of doing so: refuses to give information, or further information, or to be sworn or to affirm and give evidence, as required by a notice under section 16, to the extent that the person is capable of doing so.
Subsection (1) does not apply to the eligible person or representative, or to the chief executive, or any employee or contractor, of a government depart- ment, or law enforcement agency, that holds, or has access to, criminal records.

Every person who commits an offence against subsection (1)(a) or (b) is liable, on conviction, to a fine not exceeding $1,000.
Compare: 1999 No 10 s 8; 2013 No 60 ss 29(1)(b), (c), (2), 30 Secretary decides application The Secretary must decide an application for expungement by making, in ac- cordance with section 8, a written decision whether the conviction meets the test for expungement.

The decision must be copied promptly to the eligible person or representative and, if it is to the effect that the conviction does not meet the test for expunge- ment, must include written reasons for that decision.
10 15 20 25 Reconsideration of decisions The Secretary may reconsider a decision made under section 15 or 18.
The power to reconsider may be used on all or any of the following grounds: (a) (b) further relevant information has become available to the Secretary since the decision was made: 30 the decision was made on an application that included, or was supported by, all or any of the following: (i) (ii) false or misleading information: documents that are false or misleading: 35 (c) any other grounds that the Secretary is satisfied make it, or may make it, necessary or desirable to reconsider the decision.
9 Part 2 cl 20 Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill (3) (4) The Secretary may appoint an independent reviewer to assist with a reconsider- ation.

The Secretary may, as a result of the reconsideration, confirm, reverse, or mod- ify the decision (and section 18(2) applies, with all necessary modifications, to the reconsideration decision).
5 (5) A conviction that, as a result of a reconsideration decision, is no longer an ex- punged conviction ceases to be an expunged conviction on and from the date of the reconsideration decision.
Compare: Spent Convictions Act 2000 s 19G (ACT); Criminal Records Act 1991 s 19I (NSW) 20 Evidence, independence, and process In making a decision under section 15, 18, or 19, the Secretary— (a) may receive as evidence any statement, document, information, or matter that, in the Secretary’s opinion, may help the Secretary to make the decision, whether or not it would be admissible in a court of law; and (b) must act independently; and (c) must decide on the papers, unless the Secretary considers that an oral hearing should be conducted because there are exceptional circumstan- ces and it is appropriate to do so in the interests of justice.
Compare: 2011 No 4 s 71(2); 2013 No 60 s 19(a); 2016 No 48 s 169(5) 21 Protection for person providing information No person who provides information in, or in support of, an application or re- quest under this Act is criminally or civilly liable for the action of providing the information if that action— (a) was taken in good faith; and (b) was reasonable in the circumstances.
Compare: 2009 No 35 s 77 No entitlement to compensation 22 No entitlement to compensation (1) A person who has an expunged conviction is not entitled to compensation of any kind, on account of that conviction becoming an expunged conviction, in respect of the fact that the person— (a) (b) (c) was charged with, or prosecuted for, the offence; or admitted committing or pleaded guilty to, or was found to have commit- ted, was convicted of, was sentenced for, or had an order or a direction made against the person for, the offence; or served a sentence for, or complied with an order or a direction made against the person because of committing, the offence; or 10 15 20 25 30 35 10 Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill Part 2 cl 22 (d) was required to pay a fine or other money (including costs or any amount by way of restitution or compensation) on account of commit- ting, or being convicted of, or sentenced for, the offence; or (e) (f) incurred any loss, or suffered any consequence (including being sen- tenced, or otherwise dealt with, as an offender, or as a repeat offender, of any kind), as a result of any circumstance referred to in paragraph (a), (b), (c), or (d); or has an expunged conviction.
(2) Nothing in subsection (1) prevents a person being entitled to compensation in respect of anything that occurred while the person was serving a sentence or complying with an order or a direction.
Compare: Sentencing Act 1991 s 105S (Vict) 5 10 11 Schedule 1 Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Bill Schedule 1 Transitional, savings, and related provisions Part 1 Provisions relating to this Act as enacted s 6 5 1 (1) Effect on legal proceedings This Act does not prevent— (a) (b) the completion of a legal proceeding commenced before the commence- ment of this Act; or the commencing of a legal proceeding on or after the commencement of this Act.
10 (2) However, a proceeding in subclause (1)(a) or (b) decided (at first instance, or on any appeal) on or after the commencement of this Act must be decided subject to this Act (including section 22 (no entitlement to compensation)).

This clause applies even if, and to the extent that, the proceeding concerned is amended before, on, or after the commencement of this Act.

(3) 15 Wellington, New Zealand: Published under the authority of the New Zealand Government—2017 12