WE’RE HERE, WE’RE QUEER…AND WE’RE NOT GOING TO THE MAINLAND!

“I have no doubt that we shall win, but the road is long, and red with monstrous martyrdoms.”

  • Oscar Wilde, 1897 {quoted in Cooper 2014}

 

‘Hell can freeze over before they get homosexual acts legalized in this State’

  • John Bennett, Tasmanian Attorney-General {quoted in Morris p30}.

 

Today, 1 May 2017, marks twenty years since homosexual acts were finally decriminalised in Tasmania, through a bill finally passed through their upper house, the notoriously reactionary Legislative Council. During the Nineties, gay activists fought an epic battle for nearly a decade, in order to bring an end to these laws. Sometimes fighting against seemingly impossible odds, they never gave up.

These were the laws, in the Tasmanian Criminal Code, 1924:

  1. Any person who –
  1. has sexual intercourse with any person against the order of nature;
  2. has sexual intercourse with an animal;
  3. consents to a male person having sexual intercourse with him or her against the order of nature,

is guilty of a crime

Charge: Unnatural sexual intercourse.

  1. Any male person who, whether in public or in private, commits any indecent assault upon, or other at of gross indecency with, another male person, or procures another male person to commit any act of gross indecency with himself or any other male person, is guilty of a crime.

Charge: Indecent practice between male persons.

{Morris 1995, pp6-7}

‘This law had destroyed men’s lives’ {Brown 2014, p67}. He and other gay men campaigned against the laws, with a courage and strength that defies all negative stereotypes about them, fighting like Greek warriors. By the time it was over, the couple at the centre of the struggle for law reform, Rodney Croome and Nick Toonen, were household names in the gay community {Willett p232} – and beyond. A journalist, Stuart Diwell, described them as ‘Australia’s best-known gay couple, which also means in Tasmania they are the best-known criminals outside Risdon Prison’ {Diwell 1994}. Perhaps a better description, considering the battle they had on their hands, would be to call them the Achilles and Patrocles of the Nineties.

They were not the only ones who took this side in the argument. There were those with a commitment to human rights, for whatever reason, and those who simply regarded the laws as an anachronism, by the end of last century. This was particularly true if they lived in other Mainland states, or countries, where their sodomy laws had been abolished.

There was another side to the debate, who presented their arguments vociferously. These were arguments such as that of Chris Miles, a Federal politician and Baptist lay preacher, who claimed: ‘The act of homosexuality is unacceptable in any society, let alone a civilised society’ {Ulverstone anti-gay rally #1}. He clearly was not a scholar in classical Greek History. There was the gem from Jack Breheny, the Ulverstone councilor, whose comparison hardly flattered either, with ‘representatives of the gay community are no better than Saddam Hussein’ {Sainty 2016}. Then there was the pronouncement by John Bennett, the Attorney General that ‘Hell can freeze over before they get homosexual acts legalized in this State’ {Morris p30}.

Finally, there was George Brookes, a leading campaigner to retain Sections 122 & 123, and a member of the Legislative Council, whose views were not atypical. For a law that already carried 21 years’ prison time, seven years longer than it ever had in any other state, he stated: ‘I believe we ought to be tightening up the laws, making them a little more drastic than they are now, a little more draconian, and maybe we would influence a few more of them to take the plane north’ {quoted in Milliken 1992}. He continued: ‘Do not let them sully our state with their evil activities’ {Morris p97}.

The gay activists would counter this with the memorable slogan: ‘We’re here, we’re queer. . .and we’re not going to the Mainland’ {Croome @ Fidler 2013}.

 

toonen_tog_sitt_fall_art

The TGLRG celebrates {Kom Ut}

 

BOB BROWN

In the final decades of the 20th Century, there was undoubtedly entrenched homophobia in Tasmania. Then there were ‘many Tasmanians – not out of bigotry, just out of ignorance – didn’t think there were any gay Tasmanians’ {Norman p148}.

The first time any campaign began for gay law reform in Tasmania was in 1976, a year after South Australia became our first state to decriminalise homosexual behaviour {Carbery p8}. The first group was called the Tasmanian Homosexual Law Reform Group, established in Launceston, where their first meeting was held at the Women’s Liberation Centre on 10 March 1976 {Carbery p37}.

Bob Brown, then a doctor in northern Tasmania, would come out in June 1976 {Carbery p37}. He appeared on the ABC program This Day Tonight {Carbery p37}, and a reporter from the Launceston Examiner drove out to his Liffey home, the headline was ‘Doctor Says He’s Gay’. He claimed that this was the first time he had heard this term {Brown p31}. This may have been a boon for the law reformers, but Brown would pay the price with ‘the angry homophobic tirades from wound-down car windows, the subtle innuendos from political opponents, the cowardly sniggers from people passing in the street’ {Brown p32}. He received letters from many people. ‘Censorious citizens from near and far quoted St Paul and advised I change my ways or burn in Hell. Even more men and women wrote thanking me for this breakthrough news and telling me of their troubles – or the risk they were taking by writing to me’ {Brown p31}. This would also be used against him in his later political career, with bumper stickers reading ‘ARE THE GREENS FOR NATURE OR AGAINST IT?’ {Morris p35}

As for the THLRG, they were campaigning for an issue which no Tasmanian politician of that era would touch. ‘It was viewed as being political “death”’ {Carbery p38}. In March 1977, the Labor government established a Select Committee on an Inquiry into Victimless Crimes {Carbery p38}. The THLRG made a submission, suggesting the laws were unjust, and should be changed. One of the recommendations of this committee was that homosexual acts should be legalized between consenting adults in private {Carbery p40}.

When such a bill was finally introduced, in late 1979, it was not a government bill, but was introduced by the Labor whip, John Green, as a private members’ bill {Carbery p40}. This led to massive public outrage, expressed in those days by letters to newspaper editors. Any hope that this would lead to law reform, would be dashed by the indifferent Labor government {Croome 2006}. The bill would finally lapse in February 1980, after John Green lost his seat {Carbery p40}.

Bob Brown would be imprisoned only for his activism against damming the Franklin River, after being arrested by a waterfall there, he spent Christmas of 1982 in Risdon Prison {Brown pp55-56}. After 19 days, he was released in 1983, and the day after this was successfully elected as the first Green Independent member into the Legislative Assembly {Bob Brown Foundation}.

Some may ask why, during Brown’s time in politics, he did not do more for gay law reform? He would put other issues before this, especially his commitment to the environment. His partner, Paul Thomas, who was an early activist with GUSTO and the TGLRG {Norman pp141-142}, put it like this: ‘Bob is a Green who happens to be Pink not a Pink who happens to be Green’ {Norman p155}. In the early days, Brown would comment that there was no point having law reform if there was no planet to live on {Norman p143}.

In 1987, the Tasmanian Liberal government, under Attorney-General John Bennett {Brown p67}, changed the Criminal Code Act to make everything gender neutral, all instances of “male” or “female” were replaced with “person” {Carbery p39}. Before this, rape was considered a crime only committed by men against women {Brown p67}. However, two laws which were not affected were Sections 122 and 123 {Carbery p40}.

Now a Green Independent, Brown decided to challenge the law when he ‘attempted to use the gender neutral amendment to the Criminal Code to achieve at least a partial reform of Tasmania’s anti-homosexual laws’ {Carbery p40}. He attempted to repeal Section 123, but received neither Liberal nor Labor support for this amendment {Carbery p40}. ‘I was desperate not to let the rare opportunity to remove discrimination against homosexuals go by with no change’ {Brown p68}.

His next move was impulsive, to have Section 123 make unworkable, he moved for it to be brought under the gender-neutral provisions of the rest of the Tasmanian Criminal Code, replacing “male person” with just “person”. ‘His intention was to make the section apply equally to homosexual and heterosexual indecent acts and it would not matter whether they took place in public or private. If he had succeeded the section would have been unenforceable’ {Carbery p40}.

Brown claims he did not realise what he had done, until he saw the headline ‘Lesbian Ban Looms’ {Brown p68}. He withdrew his amendment {Carbery p40}, but was forced to deal with the Legislative Council, ‘which had a well-earned reputation as the most hidebound and reactionary upper house in the western world’ {Brown p69}. He struggled to do this because some of the members thought criminalizing lesbianism as well, was a good idea, and he was only able to stop the bill by pointing out to them that the notoriously homophobic Queensland Premier of the time, Sir Joh Bjelke-Petersen, disagreed {Brown p69}.

The laws against homosexual men would thus remain, until someone else had the opportunity to challenge them.

 

 

SALAMANCA DAYS

Considering the convict history, it is perhaps appropriate that the major push to abolish these sodomy laws began in 1988, our Bicentennial year.

In October of that year, Robin Gray, the Tasmanian Premier, came to Sydney to encourage people to move south. In an article in the Herald, they mentioned less drug addiction, pollution, and cheaper housing. Everyone in Sydney was welcome to come down to live, he said, except homosexuals {“homosexuals we are not interested in”}. Even greenies {“they make a significant contribution”}, the sick, Aborigines and other races {Tate 1988}. Some Sydneysiders responded to his comments by showing solidarity, spending their weekends demonstrating outside the Tasmanian Tourist Bureau {Morris 1995, p24}.

Also in 1988, a group of students formed the Gay University Students of Tasmania Organisation [GUSTO]. In April, they attended a talk by Bob Brown called ‘Gay Politics and the Law’. For the movement that followed, a lot of the techniques used in their activism, were borrowed from the environmentalist movement. ‘I’d say without the Greens our movement would not have taken the shape it did, and it may not have even existed’ {Croome @ Norman, p149}.

From here, they formed the GUSTO Law Reform Committee, an all-male band of brothers about 10 strong {Morris p6}. ‘A group of gay men in Hobart, who had been involved in some of the social groups got together for a discussion night around the law in Tasmania. First, I’d really heard about in detail, that all sex between men was illegal. Ten or twelve of us, we decided that someone should do something about it, and if anyone was going to, it was going to be us’ {Toonen @ Joy}.

Brown had therefore handed the baton to a new generation. One activist describes his attitude as pessimistic. ‘He was aware in a way we weren’t of the barriers that awaited us. He knew how vicious and brutal and bent on the destruction of gay and lesbian people that some Tasmanians were…We didn’t know what viciousness and brutality awaited us, we just thought that people would respond immediatelu to rational argument’ {Norman p151}.  At this stage, ‘if they had known that they were letting themselves in for a nine-year campaign whose effects would reach as far as Geneva and drag the High Court and the federal government into yet another intervention into Tasmanian state politics, GUSTO members might have thought twice’ {Willett p231}.

This new organisation was soon renamed the Tasmanian Gay Law Reform Group [TGLRG] and would have its first trial by ordeal beginning in August 1988, when they established a stall at Hobart’s weekly Salamanca Markets. ‘This Saturday market featured the usual mix of craft, food, political and community stalls’ {Clews 2014}. Also featured were other radical groups: such as the Tasmanian Wilderness Society, Community Aid Abroad, the Australian East Timor Association and the left-wing organisation Resistance {Morris p13}.

In October 1988, only 31% of Tasmanians supported gay law reform {Carbery p41}. The main aim of the TGLRG stall was to distribute leaflets and gather signatures for a petition, supporting this reform {Carbery p41}. ‘We were all frightened that someone would see us that we knew. But we went anyway because we knew this was important’ {Morris p13}.

At first all went well. The stall had its hecklers, including Christian evangelists, but many people came up and signed the petition {Morris p14}. ‘I mean it really breaks through your stereotypes of who supports law reform’ {Morris p14}.

However, after a few weeks, the Hobart City Council intervened, deciding there was no place for homosexuals in their family market {Clews 2014}. They decided the stall was ‘offensive and political’, despite the explicit T-shirts sold at other stalls {Morris p14}. As the Town Clerk, Barrie Southern, told them, the markets were for selling goods, not promoting illegal acts. ‘If the market becomes a place for activists exposing their views it could become a place where families cease to go’ {Morris p14}.

On 12 September 1988, the TGLRL stall was banned in Salamanca Markets {Carbery p41}.

However, ‘given the absurdity {and most likely, illegality} of the ban’ {Clews 2014}, the TLGRG defied it and continued to run their stall {Carbery p41}. The Council then threatened that they would call the police, and have them arrested for trespassing {Clews 2014}. ‘The TGLRG was placed in the position where it had to accept discrimination or place its members at risk of police arrest’ {Morris p13}. These members ‘faced the question of whether they could, individually, afford to be arrested and whether the inevitable publicity and confrontation would help or hinder their cause’ {Willett p232}.

There were no arrests immediately, for about a month, because the winter market was run by the Salamanca Arts Centre Foundation {Morris p15}. When manager Lenore Tardiff asked them to leave, and TGLRG members refused, her response was to sign their petition {Morris p16}.

She was not the only one who supported them, so did civil libertarians. ‘Both the media and a significant section of the population recognised that the Hobart City Council’s autocratic ruling created a precedent that might easily be applied to other groups’ {Morris p16}.

The woman Lord Mayor of Hobart, Doone Kennedy, showed that she could be as bigoted as any Tasmanian bloke. On national television, she commented: ‘It is right for there to be one law for heterosexuals and one law for homosexuals’ {Morris p21}. It was always going to be interesting when the Council took over the summer markets.

On that first week, the TGLRG went ahead with setting up their stall. They were joined there by protesters with placards {Morris p17}.

On 22 October 1988, the arrests began, with nine people being taken away {Morris p17}. The next week, 13 people were arrested, and there were 27 arrests the following week {Morris p17}.

The TGLRG held frantic mid-week meetings on what to do next? They were encouraged by an activist named Mark Davison, who ‘enabled us to build up our confidence’ {Morris p15}. Some of the members were not properly out to family, and feared being exposed by being arrested, or having their pictures shown in the media {Morris p19}. Some stayed behind the barricades, others risked arrest {Morris p19}.

There was a yellow line which the Council set up at the markets, the point where TGLRG members were considered to be trespassing. ‘Any activists crossing the line were promptly arrested’ {Clews 2014}.

This treatment mobilized the gay community, outraged that their civil rights were being so violated! They were soon involved in activism, some people even driving down from the north of the island, in order to be involved {Morris p19}. ‘Protests and letters of support flooded in from around the world. Car-loads of lesbians and gay men came from all over the state, joined by civil libertarians of all stripes’ {Willett p232}.

Among the activists involved were some who had experience with the Green movement {Morris p18}, including at the Franklin River protests. As Rodney Croome would comment: ‘Most of the people I came out with had been involved in the Greens’ early movements. They had learnt from that experience that Tasmanian society was not a stagnant one: that change was possible, and that radical change was possible. They transferred those new understandings of Tasmania to the gay and lesbian movement. We were inspired by the Greens to do what we did. For many the desire for change, the desire for justice – was transferred to another issue’ {Norman p150}.

Others, among the lesbians who joined, had experience of feminist activism {Morris p17}. They questioned whether to be involved in something which did not apply to them, as the law was exclusively a male issue? Many decided that they should be {Morris p18}.

The arrests continued. Police even took to wearing rubber gloves {Clews 2014}, and comments about AIDS were made {Morris p23}. One arrestee, Anne Collins, was told, while being searched by a policewoman: “Don’t worry, I don’t enjoy this” {Morris p23}.

Still defiant, the TGLRG organised rallies at Salamanca, ‘which helped make sure the issue received extensive publicity, both in Tasmania and throughout the rest of Australia’ {Carbery p46}. ‘It was a media and political sensation’ {Willett p233}. A documentary from SBS showed another 29 people being arrested {Morris p24}.

Perhaps this is why they even attempted to ban journalists {Willett p232}. An effort to ban a photographer and reporter from the Hobart Mercury, led to a scathing editorial entitled Trampling On Our Freedoms, that supported the law reformers {Morris p24}. ‘A vital issue is being obscured in the furore over the Salamanca Place arrests of supporters of gay rights. It is an issue which goes to the very heart of democracy. And it revolves around peaceful protest to seek to have laws changed…The council says the market is a family place. No-one would argue with such a description. Unfortunately, as a definition it is as wide or as narrow as the attitudes of the people who use it.

‘Again, this conflict distracted attention from the controversy about the basic right of people to express a point of view in a manner which until the council’s intervention had been peaceful. The Hobart City Council has been heavy-handed. In its attack on a group of people some find distasteful, it has attacked democracy. It should be brought to heel’ {Mercury Editor 1/12/1988}.

As time passed, more draconian tactics were used. People were arrested at the markets just for wearing a t-shirt that said “gay” or “lesbian” or displaying a pink triangle, or for carrying a banner {Clews 2014}. Inevitably straight supporters were also caught up, and arrested {Morris p20}, while some other stallholders were arrested merely for displaying the TGLRG petition {Willett p232}. Then there were those who had their petitions, signatures and all, torn up. As one activist commented: ‘All of a sudden we were back before Magna Carta; we didn’t even have the right to petition’ {Morris p21}. Keith Viney, the Assistant Police Commissioner, told gay activists David Brewer and Rodney Croome that they would be arrested for disturbing the peace, if they so much as left their homes on Saturday mornings {Morris p23}. Short of massacres, it seemed the Hobart City Council were employing all the hardline tactics used by the failing Soviet Bloc regimes at that time.

On 28 November, the Council debated whether to keep the ban, certain members were in favour of lifting it, while others disapproved and rejected the motion {Morris p24}. Lord Mayor Kennedy remarked: ‘I am quite certain the council has act responsibly and that it has the support of the great majority of the people of Hobart’ {Morris p24}.

The media saw it quite differently, as did many Tasmanians.

In total, 130 people were arrested at the Salamanca Markets {Morris p17}. There were even more arrests here than even at the notorious first Mardi Gras in 1978 {Willett p232}. Fortunately, it did not have the ultraviolence of that event, but it became Australia’s largest-ever gay rights civil disobedience {Croome 2006}, the Down Under version of satyagraha.

Eventually the Council did back down {Croome 2006}. The TGLRG were allowed to keep their stall, provided they removed a poster called Steve Slept With Mark, which the Council found offensive {Larkin 1988}. The full version gave a picture of two young men, with their eyes covered like criminals, and announced the sex had taken place on the night of his 21st birthday. It added: ‘In Tasmania he could be in gaol until he’s 42’ {Morris p14}.

The ban was lifted just before Human Rights Day, on 10 December 1988, the 40th anniversary of when the United Nations adopted the Universal Declaration of Human Rights {Morris p25}. The Human Rights Commission then invited the TGLRG to participate in their ceremony, at Salamanca {Morris p25}.

Soon after this, the charges were found to be legally dubious {Clews 2014}. Apparently, the Hobart City Council had not properly defined the market area of Salamanca Place, giving them no right to prosecute anyone for trespassing {Morris p25}. This left the police angry with them, for wasting their time {Morris p25}, and the Council with some well-earned public humiliation. A week later, all charges were dropped {Clews 2014}.

As a gay historian would later put it: ‘The impact of the Battle of Salamanca can hardly be overestimated’ {Willett p233}, before comparing it to the formation of CAMP in 1970, and the first Mardi Gras of 1978 {Willett p233}. This saga at the markets was a great boon to the TGLRG, whose numbers skyrocketed from 34 members to over 200 {Morris p25}, some of whom had political experience {Willett p233}. To acknowledge the women’s contribution, they changed the name from the Tasmanian Gay Law Reform Group to the Tasmanian Gay & Lesbian Rights Group {Morris p25}. As one member, Kath McLean, would comment: ‘The ban did wonders for the gay and lesbian community in terms of bringing us together…and out’ {Morris p25}.

They had won the first battle. However, for the group it was only the end of the beginning, the first salvo of a very long war.

 

 

LOVE THINE ENEMIES?

The backlash was inevitable from groups that called themselves “pro-family”, as if they perceive that gay people somehow don’t have families too.

By 1989, rallies featuring powerful oratory and large crowds began. Support for law reform was strong in the south, but was staunchly opposed in the northern towns {Carbery p42}. The first rally, in Ulverstone on 15 June 1989, was organised by local councilor Rodney Cooper, who had reportedly left the Labor Party in the 1970s because they supported gay law reform {Morris p32}. His speech at the rally, in front of about 600-700 people, was: ‘The moral rot of this country has gone far enough, and the silent majority has been quiet for far too long. We no longer accept the Fabian-Socialist policies of the Federal Government which are designed to wreck our country. I know where we should vent our anger and wrath tonight – that is at the Hawke socialist Fabian government, and the protégés such as Bob Brown, Dr Gerry Bates and the Christine Milnes…It’s time people took notice of the traitors we have in power’ {Morris p34}.

This from someone who claimed the rally was non-political, but Cooper admitted deviating from this {Allen 1989}, then claimed it was ‘certainly not an attack on homosexual people but rather homosexual practices’ {Mercury 16/6/1989}. This was followed by clergyman’s wife Wendy Tsai and key speaker Chris Miles, who claimed that homosexual practices threatened the family unit, lowered moral standards and were not acceptable in any society, let alone a civilised one {Morris p35}.   Cooper then added: ‘Decriminalisation is saying that the State accepts homosexuality as an alternative lifestyle. Next they’ll be demanding equal rights to legally marry and adopt children. They’ll see decriminalisation as an opportunity to introduce their practices into the school curriculum. If this move is successful it will rock the moral foundations of society and hasten the fall of Australia’ {Morris p35}. He concluded the meeting with: ‘Tonight we have woken up the slumbering masses. We will now turn the tables and show the powers in Hobart that they are our servants’ {Morris p36}.

Another meeting was held a week later, in the Hobart Town Hall {Morris p37}, but Cooper claimed he would not be speaking {Allen 1989}. Then, his speech there concluded with: ‘The Greens may have stopped the dam and the Wesley Vale Mill, but all the law-abiding, decent, moral majority can stop this moral rot – we will win’ {Morris p38}. Another orator asked if homophobia was alive and well in Hobart? The crowd of approximately 600 responded with loud cheers and applause {Morris p38}.

Not everybody agreed with Cooper’s politics. At the Ulverstone Council the following Monday, when Councilor Jack Breheny moved that they commend Cooper for his contribution to “health and hygiene”, fellow councilors Gavin Thompson and Ern Smith walked out {Crawford 1989}. Later, Councilor Thompson commented that homosexuals had become an obsession with his colleagues, to the point that legitimate council business was being neglected, and were giving Ulverstone an unwelcome “poofter bashing” image. ‘It’s just that I don’t think it’s a subject the council should be spending its time on’ {Crawford 1989}.

Several anti-gay groups were founded that year such as Concerned Residents Against Moral Pollution {CRAMP} and For a Caring Tasmania {FACT} {Carbery p41}. While the former claimed no religious affiliation, but to be a “moral watchdog”, the so-called FACT was formed in Launceston in July 1989 by Reverend Robert Beeston of the Baptist Union and the Presbyterian minister Murray Ramage {Morris p38}. Ramage’s contribution to the debate was an article which ended with: ‘Homosexuality is not the only sin. It is not the unforgivable sin. Homosexuals are real people, with deep needs of love and acceptance. The Christian church must always be open to them with compassion as it is open to every other sinner to find forgiveness and a new lifestyle’ {Morris p40}.

This is certainly the type of “love” and “caring” that a certain percentage of the population, who happen to be LGBT, could cheerfully do without. More like the Biblical command to love thy neighbour [platonically], was the Anglican Synod who supported gay law reform. Rev Philip Newell, Bishop of Tasmania, claimed to be ‘acting in a compassionate and caring way for a part of our society which is, I think, being bashed and, I think, discriminated against and treated in a very cruel way which tends to push them to the very fringe of society’ {Morris p45}. Eventually the Uniting Church would follow suit, in October 1989 {Willett p233}.

At these rallies, gay activists bravely put in an appearance, often hiring buses in Hobart {Croome @ Fidler 2013}. Their slogan was: ‘Talk To Us, Not About Us’ {Morris p36}. They stood outside the rallies, and had to listen to chants of “Kill them! Kill them!” {Morris p36} The only thing that prevented some people from attempting to do this, or getting violent, was the appearance of the media. One time when the activists were threatened by men with cricket bats, they were protected by a film crew from A Current Affair {Croome @ Fidler 2013}.

 

 

THE FIRST BILL

The 1989 election brought in a new minority Labor government, under Michael Field. The five seats held by Green Independents gave them the balance of power and an Accord was negotiated {Morris p33}. One of the agreements between the parties was that the new government introduce homosexual law reform {Carbery p41}. Field’s comments were: ‘Homosexuality is a reality. Homosexuals are who they are and it is a denial of their very existence to say otherwise. As much as I am a heterosexual they are homosexual, and it is as realistic to pass a law to prevent my being heterosexual as it is to pass a law to say they cannot be homosexual’ {Morris p87}.

The bill was linked to the government strategy against HIV prevention, arguing that gay men were a high-risk group, who should not be driven underground by the laws {Carbery p42}. The first bill was therefore known as the HIV/AIDS Preventative Measures Bill, and was introduced into lower House of Assembly in December 1990 {Morris p63}. The government made it clear the repeal of Sections 122 &123 was for health reasons only, and even introduced a preamble to the bill, unpopular with the TGLRG, stating that:

Whereas the Parliament believes that HIV/AIDS prevention is best served by support for marriage and stable family, community and personal relationships [and is least served by heterosexual and homosexual promiscuity]. ‘And whereas while the Parliament believes that criminal penalties should not apply for sexual intercourse between persons of the same sex, it does not endorse such behaviour, or condone attempts to promote such behaviour’ {Morris p70}.

The TGLRG objected to this. Opposing the bill, they would say that law reform was not a matter of health, but of justice {Joy}.  As they told the paper: ‘The Gay Community condemns concessions to the HIV/AIDS Bill. Richard Hale said that the preamble and the section on health education supported the myth that homosexuality could be promoted and encouraged. The myths and inaccuracies about homosexuality held by some members of the general community are reinforced by sections of the proposed legislation’ {quoted in Morris p73}.

In the meantime, another private member’s bill was introduced in October 1990 {Carbery p42}, by Green Independent, the Reverend Lance Armstrong. He had been targeted by both Christians opposing law reform, and other politicians {Morris p56}. Some believed his position in the Uniting Church gave him a moral obligation to stop law reform, something he clearly did not see, but put him under a lot of pressure {Morris p77}.

In December, the government finally introduced the HIV/AIDS Preventive Measures Bill into the House of Assembly, with an equal age of consent to heterosexuals and, even more importantly, without the preamble {Carbery p42}. ‘The parliamentary debate brought up almost every theory of homosexuality that had been promulgated, from sin to crime to sickness to mental illness, from childish willfulness to sinister conspiracy to genetic deformity’ {Morris p87}.

Also in December 1990, Ulverstone Municipal Council passed a motion opposing decriminalisation. They went on to say: ‘The Municipality of Ulverstone has no duty or obligation to its gay or lesbian constituents’ {Carbery p43}.

The bill was passed through the lower house in December 1990 {Carbery p43}. After this, Armstrong’s bill would lapse, because it was superseded {Carbery p43}. On 19 December, their last sitting day of the year, this bill took up most of the debate. The government had the support of the Green Independents on this, but the Opposition attempted to stop the decriminalisation of sodomy {Moore 1990}. Ray Groom commented: ‘The bill is contradictory because it includes measure to stop the spread of AIDS, but also legalizes homosexual acts between males, which is the primary cause of the spread of AIDS in Australia’ {Moore 1990}. The bill passed with 17 in favour, and 17 against, with the chair providing the casting vote {Morris p77}.

However, once the bill was passed on to the Legislative Council, it came up against an immovable object.  Tasmania’s Legislative Council is described by current President, the Hon James Scott Wilkinson, as: ‘Established in 1825 as the original legislative body in Tasmania (then Van Diemen’s Land) it is the only House of Parliament in the Commonwealth, and probably in the world, that has never been controlled by any government or any political party. It has always had a majority of independent members making it a truly genuine House of Review’ {Parliament of Tasmania}.  Bob Brown’s opinion had been quite different, that they were hidebound and reactionary, and many other people agreed.

The conservative members here were noted for their extreme language.  Once entirely subjective argument from Richard Archer MLC, was not atypical: ‘When I hear a Minister of the Crown making reference to the decriminalisation of homosexuality I feel sick in the guts – when I hear these people [i.e. homosexuals] talking about human rights, my blood boils. More money should be made available on policing the law. We must wipe out these addicts, we have to catch it, wipe it out the same way as we catch murderers – track them down.’ {Morris p98}. Another ominous statement was from George Brookes, MLC: ‘The people in this state expect this Council to give them the protection that the other house did not. The other house was not able to protect the people of Tasmania because it is controlled by five alternative lifestylists’ {Morris p84}.

The HIV/AIDS Preventative Measures Bill was in four parts, with 46 clauses. The most controversial parts were Clause 43, which repealed the sodomy laws in Section 122, reducing it to only Section 122(b), and Clause 44 which entirely repealed Section 123 of the Criminal Code {Morris p76}. This was the most contentious part of the bill, although others included providing a needle exchange, and was therefore known by some members as the Homosexual Bill {Morris p76}. The legislation targeted the three groups most at risk of developing HIV: homosexuals, intravenous drug users and the young and promiscuous {Moore 1991}.

In the Legislative Council, the first speaker was John Stopp: ‘There is no way I can be convinced this bill is simply about health – no way’ {Morris p81}. He was also the first to suggest separating the clauses for law reform, from the rest of the bill {Moore 1991}. Geoff Squibb was against decriminalizing dangerous behaviour: ‘What is the main purpose of this bill? Is it to stop the spread of AIDS or is it simply used as camouflage for the legalization of homosexual practices? If we legalise the practice we increase the practice and if we increase the practice we increase the risk of the disease’s spreading’ {Morris p81}.

This was hardly a camouflage as more people in the community were aware of the proposal to decriminalise homosexual behaviour, more than any other aspect of the bill {Morris p81}.

The needle exchange was objected to by some, such as Hugh Hiscutt, and there was a chance that too would be thrown out {Moore 1991}. Eventually, by 10 July, this would be voted through, along with the education components of the bill {Moore 1991}.

There were some MLCs who were in favour of homosexual law reform, such as Hank Petrusma, who asked why they were ‘worrying about two men kissing – when kids, by the time they are fifteen have seen half a million murders on television’ {Morris p90}. He later commented: ‘Under existing legislation this present law is in disrepute. I believe it is the basic tenet of all law that all men and women are equal before the law. I believe that that is not the case in terms of the homosexuals of this state; they are discriminated against and whereas their sexual behaviour is a crime, similar conduct in heterosexual relationships is not criminal’ {quoted in Morris p83}.

Others on the side of that team included Charles Batt, Ray Bailey, and Don Wing {Moore 1991}; who commented that: ‘It is a fact that most countries in the world do not have laws banning homosexual activities; some of them never have within living memory. In Tasmania it would be interesting if we had never had a law, to see what the view would be if we were considering introducing a law to criminalise homosexuality’ {Morris p84}.

However, they were never going to have the numbers to pass this commonsense. Most of the MLCs believed that young people might be tempted into a homosexual lifestyle, then infected with HIV {Morris p90}. There was much condemnation against them for the AIDS epidemic. ‘There were calls for homosexual activists to be imprisoned; forced expatriation of all homosexuals from Tasmania; and the reintroduction of the death penalty’ {Carbery p43}. It seems the only solutions the Legislative Council could advocate, were what you would have to call final.

Perhaps the best-known statement from the Legislative Council was by George Brookes, who called for the opposite of decriminalisation. ‘We ought to be looking in the other direction: not decriminalising – I believe we ought to be tightening up the laws, making them a little more drastic than they are now – a little more draconian, and maybe we would influence a few of them to take the plane north to those places where it has been decriminalised. Do not let them sully our state with their evil activities’ {Morris p105}. This made him a darling of the press. ‘Mr Brookes was quite chuffed when he was contacted by interstate media, including Sydney radio personality John Laws and A Current Affair, who wanted him to espouse further on his belief that those who wanted homosexual law reform be given one way airline tickets’ {Mercury 7/7/1991}.

He was only starting, on his rant about how this bill would ‘be opening the floodgates’ {Morris p82}. Brookes babbled on about the Greens, who were bringing too many people into Tasmania, ‘their hordes from the mainland states’ {Morris p82} to affect their vote. These people were ‘alternative lifestylists with their flowing robes, their tied-back long hair and their long beards’ {Morris p83}. As such logical debates must always have, there was a slippery slope, or what Brookes called ‘the thin edge of the wedge’ {Morris p81}. He commented: ‘The next thing we will have is that homosexuals will be claiming the right to have it in the school curriculum as an acceptable alternative lifestyle. Do we want the people who favour incest to say, “we ought to decriminalise incest” because that could be a sexual activity between consenting partners? We will have the paedophiles coming out of the woodwork and saying, “Maybe we should look at decriminalising that also”’ {Morris p81}.

The way other MLCs saw it, can be summed up by John Loone’s comments that retaining the laws ‘will indicate that we do not want to see homosexual lifestyles and relationships recognised in the same way as ordinary family lives and marriages are recognised in the community’ {Morris p85}. Other members agreed with this, that it was necessary to retain the sodomy laws, even if they were not enforced, to show their disapproval {Morris p85}. As the future Premier, Ray Groom, would contribute to this issue: ‘Parliament does not condone or approve of the unnatural sexual conduct specified in the two sections’ {Morris p85}.

More extreme talk came from a barnyard analogy, somewhat amusing in its rustic way, but still a shocking statement. Hugh Hiscutt MLC for West Devon commented: ‘If we had a bull like that [i.e. homosexual] I know where he would end up if he would not serve the females – he would be in the mall tomorrow among those 8000 sausages’ {Morris p88}.

Actual mention of the death penalty ironically began when Petrusma, in an effort to defend them, mentioned that the Old Testament arguments used in Parliament, called for homosexuals to be put to death {Darby 1991}. To this, Hiscutt replied: ‘Not a bad idea, either’ {Morris p106}. This was then reported that Hiscutt ‘by way of interjection suggested that the stoning of homosexuals was a good idea’ {Mercury 1991}.

Talk about stoning would be less of a serious business, and jokes about cannabis and Monty Python sketches more of a laughing matter, if lapidation was not still a horrendous punishment in some parts of the modern world. Even today, stoning is legally carried out in about 15 countries, as well as extrajudicially by groups such as the Taliban {Seifert 2014}. It has been described by one opponent, Naureen Shameem, as: ‘Stoning is a cruel and hideous punishment. It is a form of torturing someone to death’ {Batha 2013}. The same applies to laws against sodomy, if the death penalty had only applied among the ancient Hebrews.

Under British law, the ‘Acte for the punysshment of the vice of buggerie’, first made it a capital crime in 1533 {Harris p232}. When Van Diemen’s Land {i.e. Tasmania} was first colonized, more men were hanged in England for sodomy than murder {Harris p232}. In this colony during convict times, more of those convicted for sodomy were hanged than anywhere else {French p7}.

In 1861, the death penalty for buggery was abolished {French p6}, under Queen Victoria. However it still carried a sentence of ten years to life, under the Offences Against the Person Act, exported to all parts of the British Empire. The last men hanged for sodomy were all in Tasmania; in 1863 {French p7}, two years after abolition in Britain, although perhaps there was another hanging even in 1867 (Croome 2006). Their names were Heindrick Witnalder and Dennis Collins {French p7}.

Witnalder was a black African man, originally from Graham Town in South Africa {Brand 2014}. He joined the Cape Rifles, where he was involved in a mutiny in 1838, which saw Witnalder transported to New South Wales {Harris p236}. In 1846, he was convicted of the rape of his master’s wife, after a wage dispute {Harris p236}, then transported for life to Van Diemen’s Land {Brand 2014}. His life ended in 1863, when Witnalder was charged with “unnatural” offences with a boy of 14 {Harris p236}. They went to court on 28 January {Brand 2014}. The boy was reprieved, but Witnalder was found guilty and sentenced to death. At Campbell Street Gaol, Hobart {Harris p237}, on 20 February 1863, Heindrik Witnalder spent several hours in prayer with the Reverend Hunter, before he was hanged {Brand 2014}. Reportedly, he bowed and saluted to his audience {Harris p237}. Because he was a small man, the executioner attached weights to his feet ‘with a view of preventing or shortening as far as possible the death struggle which it was apprehended from the comparative lightness of Witnalder might be otherwise prove severe and protracted’ {Brand 2014}, and ‘he appeared to die easily’ {Harris p237}.

Later that year, in Launceston, Dennis Collins was also hanged for buggery {Harris p237}, on 11 August 1863 {Convict Records}. He was a carpenter from Chelsea {Harris p237}, transported on the Aboukir in 1851, arriving in Van Diemen’s Land on 20 February 1852 {Convict Records}. The last words of the last man hanged for buggery in the British Empire were that he was innocent, but had no desire to live, was reconciled to death, and would soon meet the Almighty {Harris p237}.

As if this was not shocking enough, it did not end in Victorian times. Acts of sodomy are still a capital crime in ten countries of the world today {Bearak & Cameron 2016}, or even fourteen {Stewart 2017}, most of which are hardline Islamic, under strictly enforced Shariah law.. In 2017, the death penalty is still carried out in a horrifying five of these countries {Stewart 2017}. So, I leave readers to decide whether it was a bad idea or not.

The bill was finally rejected by the Legislative Council in July 1991 {Carbery p43}. The clauses providing for gay law reform were split from the rest of the HIV/AIDS Preventative Measures Bill on 4 July {Moore 1991}, this became official by 11 July {Moore 1991}, because Stopp’s plan was approved by the Legislative Council {Morris p98}. Around the same time as this was thrown out, the MLCs also voted down a bill for Aboriginal land rights, on 13 July {Moore 1991}. This led to one journalist calling them ‘the reactionary house of obstruction’ {Lester 1991}.

Their decision was lambasted by Bob Brown as a ‘disgrace to Tasmania’. He continued: ‘The bigotry and backwardness of the council majority, highlighted by the inane and ignorant comments dished up during the debate, is insulting and damaging to the wider Tasmanian community’ {Moore 1991}. It was also condemned by the TGLRG, Family Planning Tasmania and the Heterosexuals Unafraid of Gays group {Moore 1991}. The editorial in the Launceston Examiner called it ‘the beginning of a new era of poofter bashing’ {quoted in Morris p99}.

By contrast, Tasmanian opinions through letters to the editor were thoroughly supportive of the Legislative Council’s stance, although some mocked them. ‘Congratulations to members of Tasmania’s Legislative Council for showing moral leadership in Australian politics, in regards to homosexual law reform. The vitriolic comment directed at the Legislative Council has come from the areas of society you would expect, not the vast majority’.   ‘It is admittedly a difficult subject, but I prefer to trust the judgment of freely elected Legislative Councilors with no party bias, who are only interested in the well-being of society’. ‘As a church, we express our support for the Legislative Council for its stand on the homosexual issue in the AIDS bill. We believe MLCs made the right decision, a decision which honors God and His laws, and which helps to preserve our nation. Their judgement also helps to protect our society from self-destruction’. Or even: ‘Just because homosexual acts were held to be wrong by a greater number of people in the 19th century than today does not mean they are no longer wrong…You are doing our MLCs an injustice by labelling them bigoted and narrow-minded. They have a sincere desire to see that AIDS does not become an epidemic, but most are convinced that legalisation of sodomy will only make the situation worse’ {Mercury Letters 7/1991}.

Interstate, Andrew Darby, Sydney Morning Herald journalist satirised them with No Gays Please, We’re Tasmanian. He began with: ‘Homosexual sex is to remain a criminal offence in Tasmania, with a maximum penalty of 21 years’ jail…Tasmania is now the only State to retain such an offence, described in its Criminal Code as “carnal knowledge of any person against the order of nature”’ {Darby 1991}. He then continued about the law being an ass, as well as impossible to police. ‘Separation of Tasmania from the dreaded excesses of the mainland has been a constant theme since decriminalisation came onto the political agenda in 1988’ {Darby 1991}, which was certainly a factor in the whole debate.

So how about the people who were affected most? For Tasmania’s gay community, many of whom were sitting in the visitors’ gallery, ‘observers could do nothing but weep as the Legislative Council tore our lives to shreds’ {Morris p99}. After the bill was first split on 4 July, activists left the gallery in noisy disgust. This was recorded as: ‘Well it’s hardly surprising – treating people like animals. I’m not going to put up with listening to this garbage any longer either’ {Morris p99}.

SPEAKER: ‘One thing that I can say is that I believe every honourable member has applied himself with dignity to this very complex issue. The proponents of the various positions in this argument might be prepared to criticize some of the points we make but the one thing that every honourable member has done in respect to this debate has been to be true to his own conscience and I would not question one comment made by an honourable member. Every honourable member is entitled to be protected from the tantrums we have just seen’ {Morris p100}.

There was only one reply the TGLRG could have to such statements as had been made during the debate on the HIV/AIDS Preventative Measures Bill, that was not dismissed in Hansard as a “tantrum”. On 11 July, when the law reform provisions were thrown out, in the gallery of the Legislative Council, 11 activists removed their jumpers, their t-shirts spelling out the letters of HYPOCRITES! {Morris p100}. You could say they had spelled out the situation in black and white {Moore 1991}. Then there were 15 protesters who threw white feathers into the chamber, which the TGLRG’s Rodney Croome said symbolized the “moral cowardice” of the MLCs who voted against reform {Moore 1991}.

Outside, about 50 protesters laid a wreath on the steps of the Legislative Council {Morris p100}. ‘To mourn the human loss which will result from the inaction of the Legislative Council and the bigotry and fear that their attitudes foster’ {Protest video 1991}. ‘The wreath commemorates all those homosexual people who have suffered because of Tasmania’s anti-gay laws, including those gay men who will die from AIDS because of the upper house’s rejection of gay law reform’ {Moore 1991}.

 

The Legislative Council of Tasmania
The Legislative Council Chamber, Parliament of Tasmania

 

NICHOLAS’ CHRISTMAS WISH

After their failures with Tasmania’s Legislative Council, the TGLRL aimed to take their fight further. They appealed all the way to the United Nations in Geneva. Australia is a signatory to the International Covenant on Civil and Political Rights [ICCPR], which requires upholding the human rights of its citizens. In 1991 it became possible for Australians who felt their civil rights had been violated, to appeal directly to the United Nations Human Rights Commission [UNHRC], which was required to be under the name of one individual {Carbery p44}. Nick Toonen lodged an application against the Tasmanian laws on the first day it was possible, 25 December 1991 {Willett p235}.

He commented: ‘The idea all along was that it should be a group effort and seen as a gay community and TGLRG complaint; but it had to be from an individual. And choosing that individual was quite a difficult thing, in some ways. . .So we wanted someone, whose name was actually to be deemed a “victim”, as the UN has deemed me’ {Morris p101}.

This was not only the first Australian appeal, but the first to any United Nations body based on sexuality. ‘Justice Michael Kirby had warned us that we had little hope of success because the UNHRC made decisions for the whole world, including for countries such as Saudi Arabia, where gay people are executed’ {Croome 2014}. This was legal advice Kirby later regretted.

However, this was not the first of such appeals. A Belfast shipping clerk named Jeffrey Dudgeon had launched an appeal that the law violated his rights under Articles 8 & 14 of the European Convention of Human Rights {Altman & Symons p78}. By the 1980s, Northern Ireland was the only part of the UK which retained anti-buggery laws which had been repealed in the Sexual Offences Act 1967 {RightsInfo}. In a place known as a hotspot for other reasons, there was another battle between gay activists and a movement called Save Ulster from Sodomy, led by Protestant clergyman Ian Paisley {Miller p288}.

Dudgeon had been arrested along with other men by the Royal Ulster Constabulary, in 1976 {Miller p288}, some of whom were charged with conspiracy {Dudgeon 2017}. They were facing charges of gross indecency, until this was opposed by the Attorney-General in London {Black 2015}. Police officers proceeded to comb through Dudgeon’s diary entries and personal documents, which contained descriptions of his homosexual activities {RightsInfo}. Dudgeon himself was questioned for five hours, with the police reading out his personal documents, before being released {Black 2015}. After this, he appealed to the European Court of Human Rights at Strasbourg {Black 2015}, however, the case would take five years.

In 1981, the European Court of Human Rights agreed that the sodomy law did indeed violate Dudgeon’s rights under Article 8 {Altman & Symons p78}. These laws were repealed by the House of Commons on 25 October 1982 {Miller p288}.

On 5 November 1992, the UNHRC accepted the Toonen case as admissible {Human Rights Committee}. They then contacted the Federal Government, whose views were very different. The Federal response to the UNHRC was sent on 27 September 1993, which agreed that the state laws violated the right to privacy, while dismissing the Tasmanian government’s arguments that it benefitted morality and public health {Morris p110}.

Nick Toonen would pay the price, for the eponymous Toonen v Australia. He had been employed for three years as General Manager for the Tasmanian AIDS Council, struggling to give out safe sex information, and allowing gay men to visit their partners in hospital {Joy FM}. Once the UNHRC began investigating, the government demanded that he be fired from this job {Star Observer}. The law they were fighting against meant the Tasmanian government could do this, by threatening to cut the Council’s funding. ‘The law was such an inhibitor around HIV prevention and open discussion around HIV and gay issues’ {Toonen @ Joy}. He would lose this job on 2 July 1993, even though there was no question about his work being unsatisfactory {Human Rights Committee}.

The TGLRG’s final communique to the UNHRC was on another Christmas Day, 25 December 1993 {Morris p112}.

Nick Toonen {courtesy of SMH 2014}

 

HUMAN RIGHTS

On 8 April 1994, a fax arrived at the TGLRG’s Hobart office. It was from the UNHRC, finding that Tasmania’s anti-gay laws violated Australian obligations under the ICCPR {New Matilda}, specifically Toonen’s right to privacy {Willett p235}. The UNHRC had made this decision on 31 March 1994 {Human Rights Committee}.

According to the International Covenant on Civil and Political Rights, all 19 members unanimously agreed that his rights were violated under Article 2, Paragraph 1, considered under the grounds of “sex”, and Article 17.

Article 2

  1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals with its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth and other status.

Article 17

  1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour or reputation.
  2. Everyone has the right to the protection of the law against such interference or attacks.

{ICCPR}

So what was the complainant, Nicholas Toonen, to do when it was the law that violated his rights? The HRC, after all its investigations, found in his favour.

‘8.1       The Committee is called upon to determine whether Mr Toonen has been the victim of an unlawful or arbitrary interference with his privacy, contrary to article 17, Paragraph 1 andwhether he has been discriminated against in his right to equal protection of the law, contrary to Article 26.

8.2        Inasmuch as Article 17 is concerned; it is undisputed that adult consensual sexual activity in private is covered by the concept of “privacy”, and that Mr Toonen is actually and currently affected by the continued existence of the Tasmanian laws. The Committee considers that Sections 122{a}, {c} and 123 of the Tasmanian Criminal Code “interfere” with the author’s privacy, even if these provisions have not been enforced for a decade. In this context, it notes that the policy of the Department of Public Prosecutions not to initiate criminal proceedings in respect of private homosexual conduct does not amount to a guarantee that no actions will be brought against homosexuals in the future, particularly in the light of undisputed statements of the Director of Public Prosecutions in 1988 and those of members of the Tasmanian Parliament. The continue existence of the challenged provisions therefore continuously and directly “interferes” with the author’s privacy.

8.3        The prohibition against private homosexual behavior is provided for by law, namely Sections 122 and 123 of the Tasmanian Criminal Code. As to whether it may be deemed arbitrary, the Committee recalls that pursuant to its General Comment 16[32] on article 17, the “introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by the law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the circumstances”. The Committee interprets the requirement of reasonableness to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case.

8.4        While the State party acknowledges that the impugned provisions constitute an arbitrary interference with Mr Toonen’s privacy, the Tasmanian authorities submit that the challenged laws are justified on public health and moral grounds, as they are intended in part to prevent the spread of HIV/AIDS in Tasmania, and because, in the absence of specific limitation clauses in article 17, moral issues must be deemed a matter for domestic decision.

8.5        As far as the public health argument of the Tasmanian authorities is concerned, the Committee notes that the criminalization of homosexual practices cannot be considered a reasonable means or proportionate measure to achieve the aim of preventing the spread of HIV/AIDS. The Australian Government observes that statutes criminalizing homosexual activity tend to impede public health programmes “by driving underground many of the people at the risk of infection”. Criminalization of homosexual activity thus would appear to run counter to the implementation of effective education programmes in respect to the HIV/AIDS prevention. Secondly, the Committee notes that no link has been shown between the continued criminalization of homosexual activity and the effective control of the spread of the HIV/AIDS virus.

8.6        The Committee cannot accept either that for the purposes of article 17 of the Covenant, moral issues are exclusively a matter of domestic concern, as this would open the door to withdrawing from the Committee’s scrutiny a potentially large number of statues interfering with privacy. It further notes that with the exception of Tasmania, all laws criminalizing homosexuality have been repealed throughout Australia and that, even in Tasmania, it is apparent that there is no consensus as to whether Sections 122 and 123 should not also be repealed. Considering further that these provisions are not currently enforced, which implies that they are not deemed essential to the protection of morals in Tasmania, the Committee concludes that the provisions do not meet the “reasonableness” test in the circumstances of the case, and that they arbitrarily interfere with Mr Toonen’s right under article 17, paragraph 1.

8.7        The State party has sought the Committee’s guidance as to whether sexual orientation may be considered an “other status” for the purposes of article 26. The same issue could arise under article 2, paragraph 1m, of the Covenant. The committee confines itself to noting, however, that in its view the reference to “sex” in articles 2, paragraph 1, and 26 is to be taken as including sexual orientation.

  1. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts before it reveal a violation of articles 17, paragraph 1, juncto 2, paragraph 1, of the Covenant.
  2. Under article 2{3}{a} of the Covenant, the author, victim of a violation of articles 17, paragraph 1, juncto 2, paragraph 1, of the Covenant, is entitled to a remedy. In the opinion of the Committee, an effective remedy would be the repeal of Sections 122{a}, {c} and 123 of the Tasmanian Criminal Code.

{Human Rights Committee}

The Committee did not consider further whether there had been a violation of Article 26, because their decision had already been made. Only one member, Bertil Wennergren, considered this. His opinion was included in the Appendix.

Article 26

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all person equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political and other opinion, national or social origin, property, birth and other status.

{ICCPR}

Mr Wennergren’s opinion was that while he agreed that the laws violated Article 17, there was more:

‘Section 122 of the Tasmanian Criminal Code outlaws sexual intercourse between and between women. While Section 123 also outlaws indecent sexual contacts between consenting men in open or in private, it does not outlaw similar contacts between consenting women. In paragraph 8.7, the Committee found that in its view, the reference to the term “sex” in article 2, paragraph 1, and in article 26 is to be taken as including sexual orientation. I concur with this view, as the common denominator for the grounds “race, colour and sex” are biological or genetic factors. This being so, the criminalization of certain behaviour operating under Sections 122{a}, {c} and 123 of the Tasmanian Criminal Code must be considered incompatible with article 26 of the Covenant.

Firstly, these provisions of the Tasmanian Criminal Code prohibit sexual intercourse between men and between women, thereby making a distinction between heterosexuals and homosexuals. Secondly, they criminalize other sexual contacts between consenting men without at the same time criminalizing such contacts between women. These provisions therefore set aside the principle of equality before the law. It should be emphasized that it is the criminalization as such that constitutes discrimination of which individuals may claim to be victims, and thus violates article 26, notwithstanding the fact that the law has not been enforced over a considerable period of time: the designated behaviour none the less remains a criminal offence.’

He concluded with:

‘I share the Committee’s opinion that an effective remedy would be the repeal of Sections 122{a}, {c} and 123, of the Tasmanian Criminal Code.’

{Human Rights Committee}

 

When the TGLRL announced this victory to the media, it created national and international attention to the cause {Croome}. On 11 April, ‘in a small but tightly filled room in Hobart’s Salamanca Place, the media, several politicians and interested observers vied for space to hear the outcome of the United Nations appeal’ {Morris p112}. They learned that the UNHRC had determined these laws breached international standards on human rights {Morris p112}.

However, this was not the end. The United Nations makes a lot of recommendations, some of which are merely pieces of paper, they are never followed. ‘The views of the Human Rights Committee are not legally binding, and there are no formal means of enforcing Committee views in any case’ {Purvis & Castellino, p18}. ‘The UN was hardly going to send in troops to enforce its ruling’ {Willett p236}.

The TGLRG now had this ace, it was up to them how they were to play it.

 

 

PARTNERS IN CRIME

Rodney Croome, who was Toonen’s partner, dealt with the problem in an even more explicit way. He challenged Tasmanian police and politicians with: ‘I have broken the law, I will break the law and I will continue to break the law. I have no intention of stopping breaking the law’. He then called on Attorney-General Cornish to make good on his threat to charge men if there was sufficient evidence {Leary 1994}. In his later third person account, there were ‘Tasmanian gay men who turned themselves in to the police with details of their illegal sexual activity’ {Croome 2006}.

This tactic had been pioneered by Sydney gay activists, Lex Watson and Robert French, in the early 1980s, as a protest against raids on gay sex clubs. It was ‘a clever move designed to highlight the hypocrisy of police enforcement of the anti-homosexual laws, and embarrass the government’ {Carbery p32}. This was before law reform was achieved in NSW, in June 1984 {Carbery p34}.

In May 1994, the Tasmanian homosexuals turned themselves in. Croome, along with Jason Rostant, turned up at the Hobart police headquarters, with statutory declarations that they had had sex with their boyfriends the previous weekend, ‘and detailing the nature of that sexual activity’ {Montgomery 1994}. They admitted that this was in violation of Sections 122 & 123 of the Criminal Code {Aldridge 1994}. Lavinia Savell, a lesbian whose sexual activities were never criminalised, even in Colonial times, confessed that she had allowed Rostant and his boyfriend to have sex in her home {Aldridge 1994}.

Later that month Richard Hale and the interestingly named Roland Sinn turned themselves in with the same confessions, the TGLRG were turning up the heat {Wood 1994}. ‘The State Attorney-General has said: “If such acts come to the notice of police and there is enough evidence to press charges, then charges will be pressed” and we challenge him to carry out his threat or support gay law reform”’ {Wood 1994}.

Police took a long time over deciding whether to charge them, for a crime that carried a maximum of 21 years. The pressure was on the Tasmanian Government to enforce or repeal the laws {Wood 1994}. The activists also intended to put pressure on the Federal Government to intervene {Montgomery 1994}. If the men were charged, Amnesty International then declared they would be formally recognised as prisoners of conscience {Gelber 1994}.

Finally, at the end of October 1994, after the Human Rights (Sexual Conduct) Bill had passed through Federal parliament, the DPP’s Damian Bugg, QC decided that it was not in the public interest to charge the activists. “I take into account the fact that this conduct was in private and there was no risk of any member of the community observing it,” Mr Bugg said. “I also take into account the fact Mr Croome and partner Nick Toonen are mature adults” {QRD}. He added that “There is no complainant-victim and no suggestion that the conduct involved young persons” {Walsh 1994}. He concluded: “In addition, I am convinced that any prosecution would be counter-productive as it would be perceived as a ‘manufactured’ case introduced into the criminal justice system to create a showcase trial” {Montgomery 1994}.

Clearly, Bugg was not an advocate for sex crime 1994, a decade after Orwell’s dystopian novel was set, he was one who believed these laws were an anachronism.

As one of the freshly reprieved men, Croome described the laws as a farce {Walsh 1994}. ‘It means that our laws are unenforceable and redundant and should be repealed immediately’ {Montgomery 1994}. When this news became known across Tasmania, people were asking: ‘WHY?! Why is the name of our state being dragged through the mud, right around the world? Why are people are laughing at us? All for a law that they won’t even enforce’ {Croome @ Fidler 2013}.

 

220px-tasmania_locator-mjc
Under Down Under

 

THE MAINLAND ON TOP

The United Nations decision ‘drew considerable national and international attention, sparking a boycott of Tasmanian produce and a global letter writing campaign by Amnesty International, and lumbering Tasmania with a reputation for intolerance’ {Croome 2006}.

In mainland Australia, many were enthusiastically involved in the boycott of Tasmanian products, while the Federal government debated over what to do. This was called the Buy Right campaign {Milliken 1994}. ‘Thousands of people, gay and straight, disrupted their shopping and eating habits in a remarkable show of solidarity. Signs appear in pubs and cafes announcing what brands of beer, apples, chocolate and dairy products were interdicted. It is unlikely that the economic impact was significant’ {Willett p237}.

In Tasmania, the Liberal government of Ray Groom refused to budge. That had been a platform of Groom’s government; since their election in February 1992, which was seen then as a nail in the coffin of law reform {Joy}. The gay community knew that had to contend with an antagonistic government, in addition to the antagonistic Legislative Council {Morris p104}. The TGLRG staged a kiss-in ‘to make it clear that gay men and lesbians would not go away’, then the demonstrators marched through Hobart with banners such as ‘OUR LOVE SURVIVES YOUR HATE, YOUR LAWS’ {Morris p104}.

Now, the Tasmanian government flatly refused to change these laws, even in the face of UNHRC condemnation {Willett p237}.  He remarked in parliament: ‘Parliament does not condone or approve of the unnatural sexual conduct specified in the two sections. It will indicate that we do not want to see homosexual lifestyles and relationships recognised in the same way as ordinary family life are recognised in the community. It will plainly show that parliament disapproves of sexual relationships between people of the same sex’ {Morris p85}.  To which Bob Brown replied: ‘I will endorse what the member [ie Groom] who preceded me said in saying that retaining this law will show that the parliament disapproves of sexual relationships between people of the same sex. That is why we need to amend those sections of the Criminal Code’ {Morris p86}.

Michael Lavarch, the Federal Attorney-General, met with Groom, and also Ron Cornish, the Tasmanian Attorney-General {Leary 1994}, whose contribution to the debate was: ‘’Tasmania is a nice, quiet, Christian-based place. They believe in the Bible and don’t like changes to the [Criminal] Code” {Crawford 1994}. Inevitably, all of their negotiations went south. ‘In our view this is a matter totally for the people of Tasmania and the Government of Tasmania. It has nothing at all to do with the United nations or with the Commonwealth. We will not allow any interference from outside the state. That’s our position’ {Leary 1994}.

 Chris Miles, the Federal MP for Braddon, reacted even more extremely, involving himself in organizing a rally to be held at Burnie Civic Centre {Morris p114}, also organised by a group called Tas Alert {Crawford 1994}. His office paid to send out advertising leaflets saying “Stand Up For Tassie” and “Say No To Sodomy” {Lester 1994}. Miles’ topic at this rally was: “Australia – Sovereign State or UN Colony” {Lester 1994}. The TGLRG once again showed up, urging people to ‘Support the Lesbian and Gay Community at a VIGIL AGAINST DISCRIMINATION’, holding their candlelight vigil before the rally {Mercury 1994}. This led to questions about the activists’ safety.

Rodney Cooper also turned up, with a banner reading: ‘Say no to the new world order. God’s rules, not UN rules’ {Mercury 1994}. Another speaker at the rally was George Brookes. He had the most delightfully Freudian statement on this issue: ‘I would hope the state government would tell the United Nations to go to buggery’ {Morris p104}.

Indeed, the tables had turned so that the government, particularly the Legislative Council, were now in the position of being the ones thumbing their noses at a higher authority. Originally this was only the United Nations, but it soon became the Federal government.

In Canberra, politicians were stuck between a rock and a hard place. ‘This was a politically sensitive matter as any attempt by the Commonwealth to overrule a state law would inevitable by seen by some as an attack on states’ rights, because constitutionally the power to make criminal laws belongs to the States, not the Commonwealth’ {Carbery p45}. This was why gay law reform in Australia went from state to state over a period of more than twenty years {ABC}, like a game of dominoes.

On the other hand, Australia had signed and ratified the ICCPR {Carbery p45}, making it their duty of uphold the decision that Toonen’s rights had been violated {Purvis & Castellino, p18}. This is covered by the Covenant in Article 2{3} – ‘Each State Party to the present Covenant undertakes:

a   To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

b

c   To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provide for by the legal system of the State, and to develop the possibilities of judicial remedy;

d   To ensure that the competent authorities shall enforce such remedies when granted.’

{ICCPR}

The Toonen v Australia finding gave the Federal Government the power to intervene, under the external affairs power in the Constitution {Purvis & Castellino, p18}, under Section 51{xxix}. ‘The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: – (xxix.) External Affairs’ {Australian Politics}. The last time the High Court had decided such intervention was justified was the Franklin Dam Case of 1983 {Carbery p45}, also in Tasmania.

“I want to see the states unite to stop the commonwealth government from abusing its external affairs powers,” Tasmanian Premier Ray Groom complained {Wallace 1994}.

As 1994 progressed, it was hoped that the Tasmanians would succumb to all the pressure to conform to the UNHRC’s ruling, but they remained stubborn {Carbery p45}. Lavarch’s verdict on the Tasmanian law was: ‘an obnoxious criminal provision which doesn’t exist anywhere else in Australia and is inconsistent with Australia’s human-rights obligations. Individual human rights have to overrule any notion of state rights’ {Milliken 1994}.

In September, the Federal ALP Government introduced the Human Rights (Sexual Conduct) Bill {Willett p237}. This read:

‘{1} Sexual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy within the meaning of Article 17 of the International Covenant on Civil and Political Rights.

{2} For the purposes of this section, an adult is a person who is 18 years old or more’.

{Federal Register of Legislation}

This was not just the ICCPR, the wording also harks back to the Wolfenden Report of the 1950s. This may have been controversial once – decades before. In 1994, ‘the Federal Labor Government took pains to draft a conservative bill that would appeal to the more liberal members of the Opposition’ {Morris p114}. In fact, so much were the laws considered an anachronism, that the Federal Liberals lived up to the true meaning of their name, when Opposition Leader Alexander Downer decided that his party would not oppose the bill {Morris p114}. He commented: ‘The coalition is not in the position of telling people how to live their lives’ {Lester 1994}.

This put Chris Miles in the hottest of seats. Following the party line would bring down the anger of his north-western Tasmanian supporters {Morris p114}, and an anti-gay group, Tas Alert, claimed he had betrayed the people of Braddon, withdrawing support for him {Mercury 6/10/1994}. However, he earned the ire of his party leader for his decision to abstain from the vote of the sexual privacy legislation, ‘because it was based on a decision by an “unelected and unaccountable United Nations body”’ {Taylor 1994}. Several of his colleagues said that he should be sacked if he persisted in abstaining from the vote {Satchell 1994}, refusing to cross the floor was not enough, which was something Downer agreed on, insisting his Coalition MPs must stand by him {Satchell 1994}. As soon as the vote was taken, the abstaining Miles was forced to resign from the frontbench, his position as shadow Minister of Education and from their Cabinet {Mercury 20/10/1994}.

Two more anti-gay law reform groups had been established in Tasmania, during the Nineties. One was Tas Alert; whose secretary was Richard Gibbs, from Burnie, who had been a teacher, but now devoted about 80 hours per week to the organisation. Soon he would have people calling him a Nazi, and not just because his mother was German {Crawford 1994}. He claimed that: ‘No way would we accept a person as a member who was out to persecute gays’ {Crawford 1994}. In contrast to the user friendly way he presented himself to the paper, Gibbs commented: ‘It has never been expected by homosexuals that they will be welcomed by the wider society, from an early age homosexuals KNOW full well that if they choose to indulge in conduct which society AS A WHOLE finds IMMORAL and OFFENSIVE, they will obviously be restricted in their practice of this form of sexual gratification’ {Morris p110}.

Perhaps it could be called persecution; the way Tas Alert was allowed to put brochures into high schools, on their noticeboards, with the ‘cynical collusion of fairly high-ranking government officials’ {Butler 1994}. One included “An Urgent Appeal to Those who Think They Might Be Gay”, warning they would be short-changed in life {Butler 1994}. Perhaps they thought it would be better to marry, then meet other men in the well-named Queen’s Domain gardens {Butler 1994}.

Gibbs was also said to be behind the second group, the Homophobic Activists Liberation Organisation (HALO) {Morris 109}. Their literature was hardly intended to be taken seriously. ‘The Government must take a leading role in the LIBERATION of Homophobics…To prevent the unlawful, unjust vilification of Homophobics, we insist on being called the “Happy and Decent Men’s and Women’s Association”’ {Morris p109}. This then degenerated into talking about various sexual perversions.

Michael Lavarch would put the bill through Parliament. He commented: ‘This legislation also brings up very many fundamental questions about the position of human rights versus states rights. The line expounded by and a common theme coming through from a number of speakers in the opposition is that we should be more concerned about the rights of the Australian states and their legislative power than about human rights…While we have always said the states should have primary rights in traditional state areas, we cannot overlook the fact that federally we have international obligations’ {HR Hansard}. He continued his argument that the Federal parliament has as much right to pass legislation as the Tasmanian parliament. Lavarch concluded with: ‘Let us strip away all this meaningless rhetoric. Let us look at the reality. What we should be interested in is the interests of individuals, the interests of human rights – not the power balance of governments’ {HR Hansard}.

Although it was always going to be passed by an overwhelming majority, there were those who argued against the Sexual Conduct Bill, and not just on the issue of state rights.   Some members, such as Liberal backbencher Allan Rocher, brought up the issue of just what this sexual privacy involved? Maybe it could include prostitution and adult incest {Taylor 1994}.

Inevitably there was a division, called by then National backbencher, Bob Katter, seconded by fellow Queenslander, Paul Neville {Morris p114}. He claimed: ‘We are here today because a man called Mr Toonen applied to an international body, not to Australians. What is happening here today is not Australian’ {HR Hansard}. This could be disputed by many, with our national tradition of the “fair go”. Katter continued: ‘We are not talking about prosecuting or persecuting homosexuals…If we are not doing anything about changing whether we put homosexuals in gaol or not, is clothing in legitimacy, acceptability and respectability behaviour on which, throughout most of history, almost every country in the world has had laws which have put some sort of sanction’ {HR Hansard}. It certainly sounds like persecution to reasonable people, who believe in human rights, and such behaviour was hardly sanctioned in the pre-Christian eras. He talked extensively about AIDS, ending up with: ‘So maybe, just maybe, little Tasmania got it right’ {HR Hansard}.

The Human Rights (Sexual Conduct) Bill was passed on 19 October 1994, by 114 votes to 4 {HR Hansard}.

This bill passed through the Senate, in December 1994 {Carbery p45}. The Human Right (Sexual Conduct) Act was therefore an excellent Christmas present for Australia’s gay men, the first time their sexual activities were not subject to sodomy laws, nationwide, since white settlement in 1788.

On 18 October 1973, before decriminalization had been passed by any state, a motion had been passed in Federal Parliament by former Prime Minister John Gorton which read: ‘That in the opinion of this House homosexual acts between consenting adults in private should not be subject to the criminal law.’ This passed in the House of Representatives by 60 votes to 40, but was not binding. One group who voted against it was the right-wing ALP members, who were mostly conservative Catholics. They included a young politician named Paul Keating {Willett p97}.

When he succeeded to The Lodge twenty years later, it is obvious that Prime Minister Keating had changed his tune, as evidenced by his government passing the Human Rights (Sexual Conduct) Act.

 

INTERNATIONAL RIPPLES

Toonen v Australia would leave many ripples, the effects felt a long way from his Island State. ‘The decision was the first time an international tribunal had recognised that gay and lesbian rights were protected by human rights conventions’ {Carbery p45}. ‘The finding was the first time the UN had found that human rights protections extended to gay and lesbian people, providing a precedent that has led to the repeal of anti-gay laws across the globe’ {Harrison 2014}.

Navi Pillay, the United Nations High Commissioner for Human Rights, commented in 2011, about the 1994 decision regarding ‘a young Australian human rights activist called Nicholas Toonen’ {Pillay 2011}. His case ‘marked a watershed for wide-ranging implications for the human rights of millions of people’ {Pillay 2011}. The decision made it clear that all Homo Sapiens have a right to be free of discrimination: gay, straight, lesbian or bisexual. ‘The result reverberated around the world’ {Pillay 2011}.

This case sent a signal to all countries with similar laws, that such discrimination is unacceptable. This has been endorsed by other UN bodies, so that gay rights are part of human rights law: along with torture, children’s rights, economic, social and cultural rights, and women’s rights {Pillay 2011}. The Human Rights Committee has since reaffirmed its position in successive cases, entrenching in human rights law the principle that no country is entitled to discriminate against people on grounds of their sexuality {Australian Human Rights Commission}. According to her: ‘Since 1994, more than 30 countries have taken steps to abolish the offence of homosexuality’ {Pillay 2011}.

In fact, it may be even more than that. Since 1990, forty countries have decriminalised “offences” between consenting adults in same-sex relationships {UN Human Rights}. Others have replaced these sodomy laws with anti-discrimination laws {UN Human Rights}.

One of these is the Commonwealth of Australia, nationwide; from sea to shining sea, the Pacific to the Indian Oceans, and from Cape York to Wilsons Promontory. International historians put the date of this in 1994, so excluding Tasmania {Miller p288}, at that stage.

As for a certain Tasmanian, the precedent he set has led to changes worldwide, from India to Malawi {Harrison 2014}. The Indian High Court cited it as a precedent, the first time they overturned their anti-gay laws {Harrison 2014}, in 2009. In Malawi in 2012, President Joyce Banda, announced a moratorium on arrests of men under anti-gay laws. On first becoming president, she had announced the laws would be repealed, but then claimed Malawi was not ready for that change {Stewart 2012}.

Today, anti-gay sodomy laws still exist in 75 countries {Gerber 2016}. ‘The severity of penalties for homosexuality range from fines to the death penalty. Imprisonment is a common form of penalty, while corporal punishment is also imposed in some countries’ {Gerber 2016}. These people have harmed nobody else, but are being punished ‘simply for being who they are, and for loving another human being’ {Pillay 2011}.

So there is still a lot of work to be done.  However, in the last few decades, ‘we have witnessed a remarkable shift in public attitudes in favour of greater acceptance gay and lesbian people’ {Pillay 2011}. Since 2013, the UN has introduced the Free & Equal Campaign, designed to raise awareness of homophobic and transphobic violence and discrimination {UN Human Rights}.

So how about the man who started it all? ‘Mr Toonen said April 11, 1994 felt like yesterday and a world away, all at once. “A lot of time has elapsed and a lot has happened since so in some ways it feels remote,” he said. “But because it was such an intense time and the emotions were so high, that sense of pride, excitement and achievement stays very fresh.”’ {McCulloch 2014}. Nick Toonen says he was proud of his involvement in the advancement of human rights. “It’s humbling that so many people around the world have benefitted from the decision in my case”, Mr Toonen said. “The obvious message from the case was that gay rights are human rights, but equally important was the message that everyday people like me can take effective action to protect human rights. My case was very much a group effort and I want to acknowledge everyone who fought for gay law reform in Tasmania as well as the many gay, lesbian, bisexual and transgender people around the world who continue to fight for their rights and their lives,” he says’ {Australian Human Rights Commission}.

 

 

 

WORKS CITED

 

See the link: …Not Going to the Mainland – Works Cited

 

 

 

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One thought on “WE’RE HERE, WE’RE QUEER…AND WE’RE NOT GOING TO THE MAINLAND!

  1. This should be offered the a gay rights organisation and treated as an historical document.
    It’s a long but I credible read. I think you should print it and give it to James Marland to read. He could help with editing, though it looks like minimal editing needs doing.
    I wonder if you could adapt this when the time comes for your PhD thesis or MA thesis.
    Ask James and even Karen about this. Creative non fiction is Karen’s forte and Queer theory being James Marlands.

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