Victorian Current Acts

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Mandatory tests

    (1)     The Secretary must refuse an application unless satisfied—

        (a)     that the offence is a historical homosexual offence; and

        (b)     that, on the balance of probabilities, both of the following tests are satisfied in relation to the entitled person

              (i)     the entitled person would not have been charged with the historical homosexual offence but for the fact that the entitled person was suspected of having engaged in the conduct constituting the offence for the purposes of, or in connection with, sexual activity of a homosexual nature;

              (ii)     that conduct, if engaged in by the entitled person at the time of the making of the application, would not constitute an offence under the law of Victoria.

    (2)     In considering whether the test set out in subsection (1)(b)(ii) is satisfied, the Secretary must (where relevant) have regard to—

        (a)     whether any person involved in the conduct constituting the offence (including the entitled person) consented to the conduct; and

        (b)     the ages, or respective ages, of any such persons at the time of that conduct.

    (3)     Subsection (4) applies if—

        (a)     consent of a person is a relevant issue in determining whether the test set out in subsection (1)(b)(ii) is satisfied; and

        (b)     the Secretary is not satisfied, from the available official records, that consent had been given.

    (4)     The Secretary may only be satisfied on the issue of consent by written evidence touching on that issue—

        (a)     from a person (other than the entitled person) who was involved in the conduct constituting the offence; or

        (b)     if no such person can be found after reasonable enquiries are made by the applicant, from a person (other than the applicant) with knowledge of the circumstances in which that conduct occurred.

S. 105H inserted by No. 81/2014 s. 3.

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