By Kath Gelber
Both the federal Labor and the Tasmanian Liberal governments are claiming a moral mandate in the struggle over abolition of Tasmania's anti-gay laws.
On August 22, federal cabinet agreed to a Human Rights (Sexual Conduct) Bill which will be placed on the priority legislation list of the spring sitting of parliament. Passage of this bill would ensure the Australian government's compliance with its human rights responsibilities under the International Covenant on Civil and Political Rights (ICCPR). Tasmanian laws were found to be in breach of this covenant by a United Nations Human Rights Committee decision in April. This was the first complaint to be lodged with the UNHRC since Australia became a signatory to the covenant in 1981.
Enactment of the federal legislation will render Tasmania's laws ineffectual. Although the Tasmanian laws will remain in force, the federal law will be directly inconsistent with state law and will therefore override it, under section 109 of the Australian Constitution. Anyone prosecuted under the Tasmanian law can plead the federal law as a defence.
Passing the bill would mean the federal government has taken action on a human rights issue. The Tasmanian government, however, says the legislation represents an outrageous imposition on states' rights, claiming, "States should have the right to legislate for the conduct of their citizens".
The bill will enshrine the right of consenting adults over the age of 18 to engage in any sexual activity in the privacy of their own homes. The Tasmanian Gay and Lesbian Rights Group (TGLRG) has welcomed the federal government's initiative, adding that it has been a long and hard battle to get this far.
However, TGLRG has also expressed reservations about the scope of the legislation, a copy of which it hopes to see this week. Activists say they want legislation which will stop police investigating and charging gay men in Tasmania. At this stage, they are not sure if the proposed bill will do this.
The Australia-wide boycott campaign of certain Tasmanian food products, initiated in order to bring extra pressure to bear on the Tasmanian government to rescind the anti-gay laws, has been called off following cabinet approval of the bill. Peter Urmson, organiser of the "Buy Right" campaign, claimed the boycott had caused a 20% to 55% loss of revenue for the producers at which it was aimed.
While welcoming all moves to end discrimination against gay men and lesbians, activists say the proposed legislation could go further.
Drafting the bill has provided the federal government with the opportunity to introduce a more broad-ranging bill. According to George Zdenkowski, associate professor of law at the University of NSW, "If the government chose to enact federal legislation reflecting all the provisions of the covenant, then that would be a dramatic development. It would in fact provide for a mini Bill of Rights." However, the bill as it currently stands has been restricted to the issue of privacy.
The UNHRC decision also relied on the issue of privacy. Because the Tasmanian laws were clearly inconsistent with privacy provisions of the ICCPR, the UNHRC chose not to consider arguments in relation to protection against discrimination on the basis of sex. In this way, the issue of full equality for all people, whatever their sexual orientation, was sidestepped.
The proposed federal legislation does the same thing. Rather than containing positive statements on equality on the grounds of sexual orientation, gay and lesbian rights have been dealt with as an issue of privacy.
Although the Tasmanian Groom government has spoken of a High Court challenge to the bill, legal circles say this is unlikely and would have very little chance of success. Zdenkowski is of the opinion that "the legislation has a sound constitutional basis".
Other states' laws could also be overridden by the Human Rights (Sexual Conduct) Bill. In WA, the age of consent for homosexuals is 21, whereas the heterosexual age of consent is 16. The WA attorney-general has said the state would consider challenging the federal legislation in the High Court, claiming criminal law as a "localised issue".
NSW also has different ages of consent for homosexual and heterosexual sex. Tasmania, WA, Victoria and the federal government have yet to enact anti-discrimination legislation which includes sexual orientation.
It seems most likely the federal legislation will be enacted in the near future. This will leave the unrepentant Tasmanian Liberal government to fight out a "state's rights" battle against a more popular human rights standpoint. The impact of the federal legislation will, however, remain limited while no anti-discrimination provisions on the grounds of sexual orientation exist, and in the absence of far-reaching community education programs against homophobia.