Forty years ago, on July 9 1986, New Zealand's House of Representatives narrowly passed the Homosexual Law Reform Act 1986, decriminalising consensual sexual practices between men and consensual anal sex regardless of gender. The law removed criminal penalties from private expressions of sexuality, but it took decades for the government to apologise to those convicted under the old law, and issues remain today.
History of Homosexual Law Reform
Criminalisation of homosexuality in New Zealand dates back to the start of Crown governance. English law was initially applied, with the Offences Against the Person Act 1867 imposing life imprisonment for 'the unnatural offence', covering anal intercourse and bestiality. Similar provisions were re-enacted in the Criminal Code Act 1893 and the Crimes Act 1908. The Crimes Act 1961, New Zealand's main criminal statute, originally criminalised sodomy with maximum sentences of 14 years if involving a woman or someone under the age of consent, and seven years for consenting male adults. Other offences included loitering in a public place with intent to commit an imprisonable offence. Ironically, police officers would loiter where homosexual men met to arrest them.
The 1986 Reform and Its Limitations
The 1986 reform decriminalised consensual anal intercourse subject to age of consent and capacity protections. Other male homosexual activity could occur without risk of arrest. Female homosexual activity was never criminalised. However, the original 1985 bill also proposed prohibiting discrimination based on sexual orientation, but this provision did not pass. Thus, while criminal law was removed, discrimination remained permissible until the Human Rights Act 1993 prohibited it. Civil unions were permitted in 2005, and same-sex marriage was legalised later, supported by some conservatives.
Celebration and Reflection
Most celebrate the 1986 reform, but it was both late and partial. The UK had decriminalised homosexuality in 1967, making New Zealand a generation behind. The Criminal Records (Clean Slate) Act 2004 required old convictions to be revealed in some circumstances, but many argued that convictions under an abandoned law should not be disclosed. In 2018, the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Act was passed, allowing those convicted between 1908 and 1986 to apply for expungement. An apology accompanied the bill, acknowledging the old law was improper. However, the UK and most Australian states had already passed similar legislation.
Remaining Issues
The 2018 act has limitations. Convictions prior to 1908 cannot be expunged, unlike UK legislation covering convictions back to 1553. Convictions under loitering provisions, commonly used, cannot be expunged. Applicants must prove their actions would not be criminal today, placing a burden of proving innocence rather than the state proving guilt. Expungement only applies under New Zealand law, not for visa applications abroad. The act expressly prohibits compensation, despite the 2017 apology that the state should never have acted as it did. As we celebrate the 40th anniversary, these issues remain to be addressed.
