Homosexuality and the Law: How Far Have We Come?

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Same-sex marriage was first legalised in the Netherlands in 2001.

Since then, 21 countries have in place legislation allowing for same-sex marriage, with the US joining the list on 26 July 2015.

Australia has not yet passed legislation to allow same-sex couples to tie the knot, although the issue has been on the parliamentary agenda for several years.

As the debate continues, let’s take a step back and consider the perspective of the law on same-sex couples throughout Australia’s history.

When Homosexual Sex was a Crime

When the British first came to Australia, they brought their laws with them.

Under British laws, homosexual intercourse was a serious criminal offence. State legislators eventually took over, and the penalties for homosexual offences differed from state-to-state.

In NSW, homosexual sex between men was punishable by life imprisonment until 1924, and in Victoria the penalties were even more extreme. Shockingly, anal intercourse in Victoria was punishable by death until as late as 1949.

But by the mid-twentieth century, attitudes towards homosexuality were changing. The practice was still largely frowned upon by society but the penalties for homosexual acts were decreasing, and towards the end of the century, the offence was eventually decriminalised in Australian states.

The first state to decriminalise homosexual sex was South Australia in 1975. NSW followed almost a decade later in 1984, and Tasmania was the last state to legalise homosexual acts in 1997.

Prior to then, section 122 of the Tasmanian Criminal Code read:

“Any person who has sexual intercourse with any person against the order of nature… [or] consents to a male person having sexual intercourse with him or her against the order of nature, is guilty of a crime.”

‘Against the order of nature’ meant anal or oral sex.

It was also a crime under section 123 of the code for:

“any male person who, whether in public or private, commits any indecent assault upon, or other acts of gross indecency with, another male person, or procures another male person to commit any act of gross indecency upon himself or any other male person.”

This followed the famous case of Nicholas Toonen, a homosexual man living in Tasmania.

In 1991, Toonen argued that criminalising homosexual intercourse violated his right to privacy under the International Covenant on Civil and Political Rights.

The UN Human Rights Committee found that although no one had actually been prosecuted under the legislation since 1981, this was no guarantee that someone would be prosecuted in the future, and that the law was therefore an intrusion of his right to privacy.

Although the Committee did not have the force of law in Australia, it was highly influential, and the Australian Attorney-General called on the Australian government to amend the laws.

The Commonwealth government ultimately passed a law which overrode Tasmania’s laws criminalising homosexual intercourse.

Different ages of consent

But even after sexual intercourse between people of the same gender became legal, the law in many states specified a higher age of consent for homosexual than for heterosexual intercourse.

Until 2003, the age of consent for heterosexual intercourse in NSW was 16, but 18 for homosexual intercourse. The age of consent was changed to 16 across the board that year, bringing NSW into line with the majority of other states.

But there is still a discrepancy in the age of consent for anal sex in Queensland (called ‘sodomy’ in the legislation) – the age of consent is 18, but for vaginal sex (‘carnal knowledge’ in the legislation), it is 16. The age of consent for anal sex applies to both homosexual and heterosexual couples.

Expunging criminal records

Even though homosexual acts are no longer criminal offences, men who were convicted in the past still had criminal records.

But last year, an amendment to the NSW Criminal Records Act 1991 meant that people who had been convicted of a homosexual offence between two consenting adults (over 16) can get the crime struck from their record.

Section 79C is of the Act allows for people previously convicted of “eligible homosexual offences” to apply to have the offence expunged.

Other states have also introduced, or are in the process of introducing, legislation of a similar effect.

Civil law

When it comes to family provision orders, wills and property divisions following a relationship breakup, homosexual couples have all the same rights as heterosexual ones. Indeed, the law does not discriminate between “gay” and “straight” de facto couples.

In this sense, homosexual de facto couples enjoy all the same rights as heterosexual one, except for the important right to marry.

While same-sex marriage may be the final frontier under law, prejudice, attitudes and discrimination are still current issues faced by the LGBTIQ community.

Having said that, it is interesting to see how rapidly times have changed – it is just over half a century since homosexual intercourse could attract the death penalty in Victoria – and less than 20 years since it was finally legalised in Tasmania.

Civil laws now mean that rights of homosexual couples are largely aligned with those of heterosexual ones – although Australia’s failure thus far to recognise same-sex marriage means that we are still not there when it comes to formal equality under the law.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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