Tasmania’s Criminal Code Act 1924
Australia’s public policies are at times controversial. This is particularly true with Tasmania’s Criminal Code Act of 1924, which deems all homosexual relationships punishable by law. It is the only Australian state that punishes sex between consenting men, and carries the penalty of 21 years of imprisonment. Debate on this policy, and the attention it has received has been so wide spread and varied, that it has attracted attention from bodies outside Australia, including Amnesty International, which now condemns not only the laws but also their administrators. With all these factors involved, it is questionable if this policy detracts from the Tasmanian society more so than it attributes to it.
Sections 122 of the Criminal Code (Tasmania) states "Any person who - ( a ) has sexual intercourse with any person against the order of nature; ( b ) has sexual intercourse with an animal; or ( c ) consents to a male person having sexual intercourse with him or her against the order, is guilty of crime." (Where ‘order of nature’ is considered as heterosexuality.). While section 123 states "Any male person who, whether in public or private, commits any indecent assault upon, or other act of 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". Similar laws to this once existed in all states of Australia, but have since been removed to suit the social changes that occur with growth and development. With this in mind, it can be argued that the Tasmanian laws belong to a backward society. The main reasons behind this stagnation in policy change can be attributed to two main factors. The first being that Australia has no comprehensive national sexuality anti-discrimination law, nor have any of the parliaments considered giving legal recognition to same-sex relationships. The second is directly linked to conservative politicians who are committed to sighting traditional personal freedom and family values. Between this tainted combination, Tasmania has managed to create the ultimate ‘Homophobic’ state.
The Human Rights committee ruled on the 31st of March 1994 that sections 122 ( a ) and ( c ), and section 123 of the Tasmanian Criminal Code were in direct breach of the International Convention on Civil and Political rights. So too, Amnesty international made three attempts at appealing these laws during 1992, 1993 and 1996, on the grounds that it was ridicules for any person to spend any time in prison solely as a result of their sexual orientation. Upon this recommendation, The Australian Federal Government passed the Human Rights (Sexual Conduct) Act 1994, stating that "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 territory, to any arbitrary interference with privacy within the meaning of article 17 of the International Covenant on Civil and Political Rights" and thus allowing for sexual privacy for homosexuals. Unfortunately the Tasmanian government did not change it’s ruling, as it believed that the new policy was a political curtain which had no effect over the laws as they had been applied for decades. They justified this by saying that the new bill provided for freedom from arbitrary interference in consensual adult conduct, but their laws were not ‘arbitrary’ interference, instead, good public policy that defended the rights of decent individuals. But it is questionable as to who the ‘decent’ individuals really are; could they be those who liken homosexual activities to having sex with animals, or possibly those who inflict physical and mental punishment to members of their own species?
These laws have created a sexual apartheid within the Tasmanian community, not only leading to discrimination, but also hostility towards its gay members. Discussions on topics of homosexuality have been banned from schools, and any gay or lesbian activities like Hobart’s Annual Gay and Lesbian Film Festival, have been stopped or dramatically censored. It had gotten to such a point, that some countries began to discuss trade bans on Tasmanian goods, and in October of 1996 at a tourism conference in Hobart, the general manager (Judy Ashton) of an international tourism promotions corporation while in conference said that "Tasmania was missing out on the much lucrative tourist market because the perception overseas was that it was illegal for two men to book a room together". As unbelievable as this may seem, it has been confirmed that visiting gay couples have been denied accommodation on the basis that homosexuality.
Many protests had taken place by the gay community of Tasmania, and attempts to defy the ‘homophobic’ laws through petitions which represented confessions from people who voluntarily admitted their sexuality were sent directly to the government (none of these people were charged). It wasn’t until 1995 that Mr. Rodney Croome claiming he felt "apprehension that either he may be prosecuted in future, and that he was represented as a criminal within his society", and Mr. Nick Toonen, two gay activists born in 1964, took the state of Tasmania before the High Court of Australia to contest the validity of the anti-gay laws particularly sections 122 ( a ) and ( c ), and section 123. Toonen submitted that these provisions violated articles 2, paragraph 1 (Stating that individuals have the right to no distinction of any kind, such as race or colour.), 17 (stating amongst other things, that no one shall be subjected to arbitrary or unlawful interference with his/her privacy.) and 26 (Allowing all to be equal in the eyes of the law, with no discrimination including sex, language, religion or other statues.) of the ICCPR.
The Groom government dominated by it’s right wing members, who shuddered at the thought of homosexual people, instantly attempted to stifle this gay and lesbian reform. Their argument was that the case should not continue because no one had been arrested for private consenting for over fifteen years, and for this reason no real issue was at state. This is questionable, for if no real issue was at stake, why were they so intent on keeping the laws in the first place? Undoubtedly they would have justified this by pointing the issue at public health and moral grounds as they had done before. They would have also insisted that the laws were intended to prevent the spread of HIV/AIDS and moral issues needed protection because they had to be deemed a matter of domestic concern. But once again, the issue of preventing aids could be rebuffed on the basis that this disease was not solely confined to homosexuals, but to also heterosexuals.
The Tasmanian government continued to argue that the case was hopeless and a waste of the courts time, but Chief Justice Brennan overruled the objections, and argued that that there were important constitutional issues involved, and for that reason the case was allowed to continue. By this act, the high court indirectly admitted that there existed some inconsistency in the laws. This was a hug victory in its self for the gay and lesbian lobbyists.
The next hearing took place in September of 1996 and involved the Full Court, which looked at the laws and questioned if they should continue to be validated. In doing so, they faced the difficult task of analysing the laws. One example of this was section 26 which did not directly mention discrimination on the grounds of sexual behaviour, and thus they were forced to seek guidance as to whether sexual orientation could be subsumed under the term of "… or other statues". Mr. Toonen urged the committee to take into account the fact that Australia had founded sexual orientation to be a protected statues in international human rights law and to constitute "other status" for the purpose of articles2, paragraph 1, and 26. In his attempt to persuade the court, he referred to relevant precedents in decisions of the European court of Human Rights. These precedents could not be binding, because they took place outside of Australia, but they could be persuasive. He also pointed out that even though the laws had not been used for many years, it did not guarantee that no future actions would be brought against them in future.
After much debate, and many attempts by the Tasmanian government to block and slow the case, it was finally decided that the mention of "sex" in articles 2, paragraph 1, and section 26 were to be taken in the pretext that it included sexual orientation, and for this reason "other statues" was not needed. Because of this ruling, it was evident that there was a violation of the rights of gay persons within Tasmania, and it was decided that the laws should be repealed. It wasn’t until mid 1997 that these laws were finally changed.
For the last seventy two years, the Tasmanian law has managed to effect almost everyone within it’s community. It has turned many heterosexuals into homophobic, gay discriminators, while at the same time inflicted the title of ‘criminal’ onto anyone who wasn’t. The attitudes of all Tasmanians have been perverted by so many years of anti-gay laws, from simply believing that ‘gay’ is wrong, through to the belief that all gay people should be pitched into hell for their horrid sins. With all this inhumanity for simply being different, it is amazing that there has been any development at all since the days of barbarism.
Creating a bill to alter existing policies is not at all difficult. What is difficult though is passing it. In doing so, it is not only necessary to persuade politicians who may have other views, no matter how outdated or inconvenient, but also to convince society that the morals it has grown up with, and have come to accept as the correct way of thinking, that change in order. As has been seen, in the case of the Tasmanian Criminal Code, this change is far from easy. And even when policy change does eventually take place, it is never certain if social views will follow, and even if they do, it is almost certain that the time span that is needed will be extensive, for human nature does not cope well with change. In this case we can only hope that the changes set in motion by the High Court will take hold quickly.
D, "Introducing Law", Macmillan, 1987
"Australia: Tasmanian government should repeal discriminatory laws against homosexuals", Amnesty International Int. address http://www.oneworld.org, 1997
Cook, Margie, "Human rights for Australia’s Gay and Lesbians", Human Rights and Equal Opportunity Commision, 1997
Dean, A, "Two win right to test anti-gay laws", The Sydney Morning Herald, 1997
Gelber, K, "Tasmanian case goes to High Court", Green left weekly, 1996
"Kennet angers Tasmanians", Brother and Sister, 1996
Perrett, B, "Keating splits Opposition with Gay sex law", Int. Address http://www.queer.org.au, 1996
Pritchard, S, "Gay and Lesbian victory I", Ahric, 1997
Pritchard, S, "Gay and Lesbian victory II", Ahric, 1997
Pritchard, S, "The Jurisprudence of Human Rights: Some critical thought and developments in practice", Ahric, 1997
"Recent news on Amnesty International’s concerns in Australia", Amnesty International Int. address http://yarra.vicnet.net.au, 1996
"Rodney Croome & Anor plaintiffs and The State of Tasmania Defendant", High Court of Australia - records Int. address http://www.queer.org.au, 1997
"Tassie Government cracking?", Brother and Sister, 1995
"Victoria intervenes in Tasmanian High Court case", Brother and Sister, 1996
Written By Evan Sycamnias