We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 02 January 2018
Successful law reform campaigns leave behind a rich history; a story of engagement between activists seeking legal change, opponents who attempt to maintain the status quo, legislators, and the judiciary. The repeal of the provisions of the Tasmanian Criminal Code which prohibited certain private, consensual sexual relations between adults, and which were aimed primarily at male samesex sexual acts, by the state legislature in May 1997, signaled the end of a particularly arduous campaign which lasted several years. What makes this struggle worthy of academic treatment, first, is the simple fact that the gay activist campaign was waged over a plurality of legal and political sites at the state, national, and international levels.
The research on which this article is based was conducted while the author was a Parsons Fellow at the Faculty of Law, University of Sydney. Thanks are due to the Faculty both for its financial support and collegial environment. Thanks to Didi Herman, Davina Cooper, Shane Phelan, and the Legal Studies readers for helpful comments on previous drafts. A particular debt of gratitude is owed to Wayne Morgan, for his critical comments. Special thanks also to Michael Lavarch, Kate Harrison, and David Fraser.
1. From a Tasmanian government advertisement for investment and immigration: (1997) The Australian, 26 March, p 2.
2. On the evolution of an Australian national identity, see generally Bennett, T, Buckridge, P., Carter, D, and Mercer, C (eds) Celebrating the Nation: A Critical Study of Australia's Bicentenary (Sydney: Allen and Unwin, 1992)Google Scholar; Castles, S, Kalantzis, M, Cope, B and Momssey, M (eds) Mistaken Identity: Multiculturalism and the Demise of Nationalism in Australia (Sydney: Pluto Press, 1988)Google Scholar; Price, C A (ed) Australian National Identity (Canberra: Academy of the Social Sciences in Australia, 1991)Google Scholar; Kapferer, J. Being All Equal: Identity, Difference and Australian Cultural Practice (Oxford: Berg, 1996)Google Scholar; T L Phillips ‘Symbolic Boundaries and National Identity in Australia’ (1996) 47 Brit J Sociology 113; White, R Inventing Australia (Sydney: Allen and Unwin, 1981)Google Scholar. I consider the evolution of an Australian national identity and its connections to sexual identification and rights discourse in greater detail in Stychin, C F A Nation by Rights: National Cultures, Sexual Identity Politics, and the Discourse of Rights (Philadelphia: Temple University Press, 1998) pp 147–164 Google Scholar.
3. Galligan, B ‘Australia's Political Culture and Institutional Design’ in Alston, P. (ed) Towards an Australian Bill of Rights (Canberra: Centre for International and Public Law, 1994) p 55 at 62Google Scholar.
4. See Eddy, J. ‘What are the Origins of Australia's National Identity?’ in Castles, F G(ed) Australia Compared: People, Policies and Politics (Sydney: Allen and Unwin, 1991) p 17 at 27Google Scholar.
5. H Charlesworth ‘The Australian Reluctance About Rights’ in Alston above n 3 at 21, 22.
6. See Galligan above n 3 at 68.
7. Galligan, B, Knopff, R, and Uhr, J. Australian Federalism and the Debate over a Bill of Rights’ (1990) 20 Publius 53 at 56 Google Scholar. For example, in the Communist Party Case (1951) 83 CLR I, the High Court invalidated a federal government attempt to outlaw the Communist Party, but on federalism grounds; see Charlesworth above n 5 at 26. Opponents of an entrenched rights document point to how a similar case in the US led to the opposite outcome, having been argued on the basis of individual freedoms under the Bill of Rights; see Dennis v US (1950) 341 US 494.
8. Galligan, Knopff, and Uhr above n 7 at 66.
9. Charlesworth above n 5 at 44.
10. Ibid at 26.
11. See generally (1995) 17 Sydney LR 119–346 (Special Issue: ‘Internationalisation of Australian Law’).Google Scholar
12. On the relationship between internationalism and constitutional law in Australia, see especially C Saunders ‘Articles of Faith or Lucky Breaks?: the Constitutional Law of International Agreements in Australia’ (1995) 17 Sydney LR 150.Google Scholar
13. Galligan, Knopff, and Uhr above n 7 at 58.
14. Commonwealth of Australia v State of Tasmania (1985) 158 CLR 1 (HCA).Google Scholar
15. See generally Rothwell, D R and Boer, B From the Franklin to Berlin: the Internationalisation of Australian Environmental Law and Policy’ (1995) 17 Sydney LR 242.Google Scholar
16. Galligan, Knopff, and Uhr above n 7 at 59.
17. See Mathew, P. International Law and the Position of Human Rights in Australia: Recent Trends’ (1995) 17 Sydney LR 177.Google Scholar
18. Charlesworth above n 5 at 44.
19. Sawer, G Modern Federalism (Carlton, Australia: Pitman, 1976) p 152 Google Scholar.
20. The High Court of Australia is the highest court in the jurisdiction, hearing appeals on both federal and state matters. Prior to 1975, appeals could be further launched to the Judicial Committee of the Privy Council. However, the High Court is appointed solely by the federal executive branch, exemplifying another departure from a classic federalism model; and one which is increasingly coming in for criticism from state governments.
21. A consideration of this ‘Implied Bill of Rights’ jurisprudence is beyond the scope of this article, but nevertheless remains a subject of considerable current controversy in Australia. See generally L Zines ‘A Judicially Created Bill of Rights?’ (1994) 16 Sydney LR 166 Google Scholar; Jones, T H ‘Fundamental Rights in Australia and Britain: Domestic and International Aspects’ in Gearty, C and Tomkins, A (eds) Understanding Human Rights (London: Mansell, 1996) p 91.Google Scholar
22. See especially Mubo and Others v State of Queenslund (1992) 175 CLR 1 (HCA).Google Scholar
23. Opeskin, B R and Rothwell, D R ‘The Impact of Treaties on Australian Federalism’ (1995) 27 Case Western Reserve J Int L 1 at 47. In 1984 the reservation was replaced by a federal ‘statement’ having substantively the same effect; ibid. However, art 50 of the ICCPR states clearly that ‘the provisions of the covenant shall extend to all parts of federal States without any limitations or exceptions’.Google Scholar
24. Ibid at 48.
25. Morgan, W Identifying Evil for What it is: Tasmania, Sexual Perversity and the United Nations’ (1994) 19 Melbourne Univ LR 740 at 741.Google Scholar
26. Opeskin and Rothwell above n 23 at 49.
27. P Alston ‘An Australian Bill of Rights: By Design or Default?’ in Alston above n 3 at 1, 5.
28. Morgan above n 25 at 742. Until 1997 the Tasmanian Criminal Code provided that: ‘s 122 Any person who-(a) has sexual intercourse with any person against the order of nature; (b) has sexual intercourse with an animal; (c) consents to a male person having sexual intercourse with him or her against the order of nature, is guilty of a crime. s 123 Any male person who, whether in public or private, commits any indecent assault upon, or other act 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.’ The maximum penalty under these sections was 21 years' imprisonment. The precise scope of the provisions remained unclear.
29. For a fascinating history of the gay law reform movement in Tasmania, see Morris, M Pink Triangle (Sydney: University of New South Wales Press, 1995)Google Scholar.
30. Article 17 provides that: ‘(1) No one shall be subject to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. (2) Everyone has the right to the protection of the law against such interference or attacks.’ Article 2(1) provides that: ‘Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised 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 or other status.’.
31. Article 26 provides that: ‘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 persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’.
32. Reproduced in Aldous, J. The Human Rights Sexual Conduct Act: A Case Study in Changing the Law (Melbourne: VCTA Publishing, 1995) p 8 Google Scholar.
33. Ibid. An interesting argumentative turn is apparent here, as the law's explicit focus on sexual acts is translated into an argument based on the particular sexual identity of gay men. The argument made by the complainant in Toonen v Australia (1994) Communication No 488/1992, UN Document CCPR/C/5O/D/488/1992 [available online at: http://www.umn.edu/humanrts/undocs/html/vws488.html], in this regard, is that ‘in spite of the gender neutrality of Tasmanian laws against “unnatural sexual intercourse”, this provision … has been enforced far more often against men engaged in homosexual activity’ than others; ibid at para 7.6.
34. Morgan, W Sexuality and Human Rights: the First Communication by an Australian to the Human Rights Committee under the Optional Protocol to the International Covenant on Civil and Political Rights’ (1993) 14 Aus Yearbook Int L 277 at 281.Google Scholar
35. Joseph, S ‘Gay Rights under the Iccpr - Commentary on Toonen v Australia’ (1994) 13 Univ Tasmania LR 392 at 397.Google Scholar
36. Toonen above n 33, para 2.1.
37. Ibid, para 5.1.
38. Morgan ‘Identifying Evil’ above n 25 at 743.
39. Ibid at 744.
40. Toonen above n 33, para 6.7.
41. Ibid, para 6.13.
42. Ibid, para 8.2.
43. Ibid, para 8.6.
44. A Twomey Strange Bedfellows: The UN Human Rights Committee and the Tasmanian Parliament (Canberra: Parliament of the Commonwealth of Australia, 1994) p 11.
45. Toonen above n 33, para 8.7. A separate opinion was delivered by the Swedish member of the Committee, Bertil Wennergren, who argued that sexual orientation was included within the equality rights provisions, and that the law discriminated on that basis. Controversially, he suggested that the basis for this finding could be that ‘the common denominator for the grounds “race, colour and sex” are biological or genetic factors’ (and he implicitly analogised sexual orientation to those grounds on that basis): ibid, appendix.
46. Ibid, para 7.3.
47. Morgan ‘Sexuality and Human Rights’ above n 34 at 288.
48. Ibid at 289.
49. Joseph above n 35 at 405.
50. (1976-82) 4 EHRR 149.
51. Ibid at 166.
52. Toonen above n 33, para 7.1.
53. Tenbensel, T International Human Rights Conventions and Australian Political Debates: Issues Raised by the “Toonen Case”’ (1996) 31 Aus J Pol Sc 7 at 19.CrossRefGoogle Scholar
54. Toonen above n 33, para 10.
55. Pursuant to art 2(3)(a) of the Covenant, the state is under a specific duty ‘to ensure to any person whose rights or freedoms as herein recognised, are violated shall have an effective remedy’.
56. Opeskin and Rothwell above n 23 at 51.
57. lbid at 52.
58. Joseph above n 35 at 403.
59. Ibid at 402.
60. See generally Tenbensel above n 53.
61. Ibid at 17.
62. Ibid at 16.
63. The sole substantive provisions of the law state: ‘4(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 Convenant on Civil and Political Rights. (2) For the purposes of this section, an adult is a person who is 18 years old or more.
64. Bronitt, S Legislation Comment: Protecting Sexual Privacy under the Criminal Law - Human Rights (Sexual Conduct) Act 1994 (Cth)’ (1995) 19 Crim LJ 222 at 224 Google Scholar. There might well be other legal implications. For example, Western Australia's age of consent law for male same-sex sexual activity presently stands at age 21; s 4(2) of the Human Rights (Sexual Conduct) Act presumably would demand that it be rendered inoperative regarding sexual acts of 18–21 year olds. On the legal implications of the Act, see generally ibid; S Bronitt ‘The Right to Sexual Privacy, Sado-masochism and the Human Rights (Sexual Conduct) Act 1994 (Cth)’ (1995) 2 Aus J Human Rights 59.
65. Morgan, W ‘Protecting Rights or Just Passing the Buck? the Human Rights (Sexual Conduct) Bill 1994’ (1994) 1 Aus J Hum Rts 409.CrossRefGoogle Scholar
66. Ibid at 411.
67. Ibid at 412.
68. Ibid.
69. Croome, R Sexual (Mis)conduct’ (1995) 20 Alternative LJ 282 at 285. For a detailed discussion of these and other events in Tasmania, see generally Morris above n 29.Google Scholar
70. Above n 69 at 284.
71. Neville MP Weekly Hansard Commons, 13 October 1994, 1986.
72. Above n 5 at 48.
73. Ibid.
74. Another interesting example has been Parliament's recent enactment of legislation to render inoperative the Northern Territory's voluntary euthanasia law: Rights of the Terminally I11 Act. The debates surrounding these legislative moves were articulated by all sides in the language of rights: right to die; right to life; and rights of states. See (1997) The Australian, 17 March, p 4; 26 March, p 2.
75. Croome above n 69 at 283. The High Court ruled, as a preliminary matter, that Toonen and Croome had legal standing to bring the action, based upon the continued existence of the law and the potential for criminal prosecution: Croome v State of Tasmania (1997, unreported). The subsequent repeal of the sex laws in Tasmania, of course, rendered the case moot, and the High Court's decision may well have been instrumental in the Tasmanian government's decision to repeal the laws. The federal government denied a claim for legal aid to fight the case.
76. Charlesworth above n 5 at 50.
77. Above n 17 at 178.
78. Charlesworth above n 5 at 50.
79. See generally Burmester, H National Sovereignty, Independence and the Impact of Treaties and International Standards’ (1995) 17 Sydney LR 127.Google Scholar
80. See generally Opeskin and Roth well above n 23.
81. Above n 79 at 129.
82. Above n 22.
83. Senate Legal and Constitutional Legislation Committee, Report: Human Rights (Sexual Conduct) Bill 1994 (Canberra: Parliament of the Commonwealth of Australia, 1994) (dissenting report).
84. Mathew above n 17 at 200.
85. Above n 27 at 11.
86. Morris above n 29 at 81.
87. Ibid at 82.
88. bid at 115.
89. Ibid.
90. Ibid at 117. For an interesting fictionalised account of Tasmania, see Altman, D The Comfort of Men (Melbourne: Minerva, 1995)Google Scholar.
91. (1997) The Australian Online, 3 May.
92. (1997) The Australian, 27 March, p 1.
93. W Morgan, personal correspondence with author, 14 July 1997.
94. See eg de Búrca, G ‘The Language of Rights and European Integration’ in Shaw, J. and More, G (eds) New Legal Dynamics of European Union (Oxford: Clarendon Press, 1995) p 29 Google Scholar; Ball, C A ‘The Making of a Transnational Capitalist Society: The Court of Justice, Social Policy, and Individual Rights Under the European Community's Legal Order’ (1996) 37 Harv Int L J 307 Google Scholar; Bellamy, R and Castiglione, D ‘The Normative Challenge of a European Polity: Cosmopolitan and Communitarian Models Compared, Criticised and Combined’ in Føllesdal, A and Koslowski, P. (eds) Democracy and the European Union (Berlin: Springer-Verlag, 1998) p 254 CrossRefGoogle Scholar.
95. See eg Meehan, E. Citizenship and the European Community’ (1993) 64 Pol Q 172; J Shaw ‘The Interpretation of European Union Citizenship’ (1998) 61 MLR 293 at 297–302.CrossRefGoogle Scholar
96. For a discussion of Irish national identity and the impact of European law, see Stychin above n 2 at 137–139.
97. See Armstrong, K A Legal Integration: Theorising the Legal Dimension of European Integration’ (1998) 36 JCMS 155.Google Scholar
98. [1998] IRLR 206.
99. See deBúrca, G The Quest for Legitimacy in the European Union’ (1996) 59 MLR 349.CrossRefGoogle Scholar
100. Shaw, J. European Union Legal Studies in Crisis? towards a New Dynamic’ (1996) 16 OJLS 231 at 247.CrossRefGoogle Scholar
101. Ibid at 240.
102. By analogy, in the European context, it has been argued that European ‘legislation may increasingly be concerned with Member States’ duties; duties which may exist in the absence of directly effective rights’; Armstrong above n 97 at 163.
103. de Búrca ‘The Language of Rights’ above n 94 at 48.
104. See generally Bellamy and Castiglione above n 94.
105. As MacCormick argues, ‘acceptance of a pluralistic conception of legal systems entails acknowledging that not all legal problems can be solved legally’; MacCormick, N ‘the Maastricht-Urteil: Sovereignty Now’ (1995) 1 Euro W 259 at 265.Google Scholar
106. Turner, B S ‘Postmodern Culturehlodern Citizens’ in Steenbergen, B van (ed) The Condition of Citizenship (London: Sage, 1994) p 153 at 157CrossRefGoogle Scholar.
107. Article F(2) of the Treaty on European Union refers to both the European Convention on Human Rights and ‘common constitutional traditions’ as offering ‘general principles of Community law’.
108. Thus, art F(2) of the Treaty on European Union, with its language of ‘common constitutional traditions’ sits alongside art F(l), with its assertion that ‘The Union shall respect the national identities of its Member States, whose systems of government are founded on principles of democracy’. See Bellamy and Castiglione above n 94 at 274–275.
109. Weiler, J H H European Neo-constitutionalism: in Search of Foundations for the European Constitutional Order’ (1996) 44 Pol S 517 at 526.CrossRefGoogle Scholar
110. See de Búrca ‘The Language of Rights’ above n 94 at 46.
111. See Bellamy and Castiglione above n 94 at 275.
112. Grant above n 98 at 218.
