Tasmanian case goes to High Court
By Kath Gelber
On September 10, Tasmanian activists took their campaign to repeal state anti-gay laws to the High Court. The court has been requested to hear a case which will seek to declare the laws invalid on the grounds that they are contradicted by the federal Human Rights (Sexual Conduct) Bill 1994, known as the Privacy Bill.
The Privacy Bill was passed in 1994 following a decision by the United Nations Human Rights Committee that Tasmania's anti-gay laws contravened Australia's international human rights obligations.
The bill provides for freedom from arbitrary interference in consensual adult sexual conduct. However, the Tasmanian government claims that its anti-gay laws are not an "arbitrary" interference, but good public policy.
It is usually the case that to be granted standing to bring such a case, a complainant must have been prosecuted under the state law under dispute. The Tasmanian director of public prosecutions has refused to charge Tasmanian activists who have voluntarily signed "confessions".
However, whether or not this action will succeed is more than a purely legal question. The high political profile of the case will undoubtedly affect the decision.
The Tasmanian government, with the support of the Victorian government, is claiming so-called "states' rights" to argue against standing. The federal attorney-general, however, is supporting the Tasmanian activists' claims.
Should standing be granted, it is highly likely, based on legal precedent of the last few decades, that the Tasmanian laws would be declared invalid.