Sentencing Act 1991
VCAT can review a decision to have a historical homesexual conviction expunged.
This page provides general information and shouldn't be considered as legal advice. Seek legal advice if you're unsure about your legal rights. Be aware that the law can change.
Sentencing Act 1991 sets guidelines for sentencing in Victoria and lists the penalties available in the Magistrates’ Court for people found guilty of offences. VCAT has jurisdiction under Part 8 of the Act about historical homosexual convictions.
A person who was convicted of a historical homosexual offence can apply to the Secretary to the Department of Justice and Community Safety for the conviction to be expunged.
Cases we can hear
You can apply to VCAT for a review of the Secretary's decision about expunging a conviction due to a historical homosexual offence.
Cases we can't help with
We can’t accept:
- some cases where one party lives in another state or is a Commonwealth government organisation
- cases heard under federal law instead of Victorian law.
Legislation that gives VCAT the power to hear these applications
Section 105L of the Sentencing Act 1991
Documents you need to apply
If you have a decision document, use it to help you complete the VCAT application form and attach a copy of the document to your application.
You must make an application for review within 28 days after the day on which you are given notice of the Secretary’s decision.
What can VCAT order?
Unless the Act gives VCAT different powers, VCAT can:
- affirm the original decision, in which case it will stand
- vary the decision
- set aside the decision and substitute our own decision
- set aside the decision and send back the matter for reconsideration by the decision maker giving directions or recommendations
- invite the decision maker to reconsider their decision at any time during the case.
Putting the original decision on hold
In most cases, applying for a review does not put the original decision on hold and that decision stands until VCAT makes its decision.
If you want the original decision put on hold, you must ask for this by indicating you want a ‘stay’ on the application form and briefly explaining why you are seeking a stay.
If a data controller (as described in Part 8 of the Sentencing Act 1991) starts a proceeding, the decision under review is stayed until VCAT makes a decision and the appeal period expires.
We can explain the application process and what the form is asking you for. Contact us to get support.
We can't give you legal advice. This means we can't tell you what to write in your application or recommend how to get the outcome you want.
Seek legal help if you're unsure about your options or need advice about your claim.
Do I need a lawyer or professional representative?
You don't need to have legal or other professional representation to appear at VCAT. If you want to be represented by a lawyer or a professional advocate, usually you must ask for VCAT's permission.
Be aware that the regulatory body in most cases uses legal representation.
Find legal services that may be able to assist you.
Access and privacy
VCAT hearings and files are usually public.
VCAT has limited authority to restrict who can access cases and files but, in certain circumstances, you can apply for confidentiality.