A Question of Rights
Croome v. State of Tasmania 1997
Protests began in the late 1980s in Tasmania surrounding the decriminalisation of homosexual activity – increasing with the introduction of the Tasmanian Gay and Lesbian Human Rights Group. Rodney Croome is an Australian LGBTQ+ activist and academic, a National Convenor of Australian Marriage Equality and one of the founders of the Australian Coalition for Equality. He was the founding president and long-term board member of the Tasmanian LGBT support organisation Working It Out. In 1997, Croome and his partner Nicholas Toonen entered a police station and confessed their homosexuality, being that sodomy was illegal during this time. If found to be in a homosexual relationship, you’d be charged for “unnatural sexual intercourse” and, if found guilty, 25 years in prison. Croome fought to decriminalise homosexuality in Tasmania, which later lead to the case being taken to the United Nations (in Toonen v. Australia), the High Court of Australia and the Australian Federal Government. Croome’s objective was that “to base a scare campaign on the fundamental human rights of vulnerable minority is an abuse of freedom of speech,” and hoped to abolish the law that infringed his right to privacy in a consenting relationship.
Initially, a Bill was introduced by the Labor Government in 1989 which aimed to repeal Tasmania’s discriminatory laws regarding homosexuality, but was unsuccessful in the Legislative Council. The Croome v. State of Tasmania case then went to the High Court of Australia for a ruling as to whether the Tasmanian laws were inconsistent with the Federal Human Rights (Sexual Conduct) Act 1994. The plaintiffs were looking to obtain a declaration from the High Court that Sections 122 and 123 of the Tasmanian Criminal Code conflicted with the provisions outlined in Section 4 of the Human Rights (Sexual Conduct) Act 1994 – “sexual conduct involving only consenting adults in private is not to be subject…to any arbitrary interference with privacy” – and that by the authority outlined in Section 109 of the Australian Constitution, those sections of the Criminal Code are invalidated. Despite never being prosecuted, Croome was liable for this under the law that criminalised sexual relations between homosexuals. Croome argued that these sections of the Criminal Code (Tas) infringed his right to privacy, afforded to him by the obligations outlined in the international treaty (ICCPR). He also argued that the law was discriminatory towards the gay community as it didn’t make sexual conduct of straight people a criminal offence. As defendants, the Government of Tasmania argued that this section of the Commonwealth Act was invalid as laws relating to a state’s criminal code was not a law-making power that the Commonwealth held under the Constitution – and was therefore invalid. They argued that their stance was valid due to moral and health obligations of the government to its people. As per section 109 of the Constitution, in areas of concurrent power, it was made apparent that should a state and Commonwealth law be inconsistent, the latter shall prevail and the state law shall be invalid to the extent of inconsistency. Thus, the High Court had to determine if the Commonwealth law was constitutionally valid, and if so, were the relevant sections of the Criminal Code (Tas) in contradiction, and could thus be repealed.
Following this, the State of Tasmania applied by summons to have the writ and statement be dismissed, as they didn’t “give rise to a matter within the meaning of Section 76 of the Constitution.” The Court then recognised that these Sections were a constant threat to lives, even if they were not enforced. The High Court found in favour of Croome, in validating the Human Rights (sexual conduct) Act 1994, which led to a repeal of the parts of the Criminal Code (Tas). This was done with the passing of the Criminal Code Amendment Act 1997. On April 16th 1997, the Upper House of Tasmania voted for gay law reform. Croome and Toonen’s combined actions also led to the reappeal of The Australian Constitution and made an appearance in a United Nations forum. During the time of this case, there were many arguments surrounding the anti-gay reform in Tasmania. Majority of these argued that a repeal of the law would cause an inherent breakdown of the family structures within Australia – concerning the legislation that sexual relations between men would put a decrease on the traditional view of the importance of a heterosexual relationship and reproduction within, to grow a family. Another concern was that the repeal would promote homosexual behaviour that would then see a rise in STIs such as HIV and AIDS. Despite these concerns, there was major support for the repeal as well. Arguments noted that a repeal of the law would fulfil Australians international treaty obligations (i.e. The right to privacy), and would also extend this right to privacy to homosexuals. The repeal would ultimately grant the quality between homosexual and heterosexual couples – both given the rights related to privacy and sexual activity. This would further promote safer sex between homosexuals, ridding of the threat of HIV and AIDS known to be associated with same-sex couples.
The decision on rights of individuals in this case had a significant impact, extending the right to privacy to the gay community in Tasmania – now being in line with the International Covenant on Civil and Political Rights. Some argued that now sexual relations between men would no longer be ‘taboo’, and the community could thus shift towards a better promotion of safe sex. Past Premier Tony Rundle regarded the repeal as a symbol of social cohesion and tolerance that was necessary in Tasmania. Ultimately, the law ensured that laws for both homosexual and heterosexual men in Tasmania was made equal. It is likely that after this decision was made, same-sex couples thus felt more welcomed into society and didn’t have to fear prosecution for living their lives freely. Within the legal system, this case highlighted the Government’s commitment to the ongoing protection of Human Rights in Australia, that people could not be discriminated against due to their sexual orientation. Further, it positioned Australia’s legal obligations firmly within international law and on a global scale. The Croome v. State of Tasmania case has helped paved the way for other cases to be brought before the Australian courts – as it has progressively helped legalise same-sex relationships and sexual conduct between men. Similar cases may now be more easily recognised and understood as cases based on individual human rights, and significant changes may ensue as a result of such cases. Relating to politics today, cases like Croome v. State of Tasmania may help the Australian Government consider to legalising same-sex marriage within Australia. Same-sex marriage is too a matter of individual human rights to marry regardless of sexual orientation. Exposure of cases like this one may lead to an increase in support for same-sex marriage.
In conclusion, the Croome v. State of Tasmania case was one based on the rights of individuals to legalise same-sex relations between men, brought to the High Court of Australia by LGBTQ+ rights activist, Rodney Croome, in 1997. Throughout the duration of the case, there were a number of opposing opinions surrounding the repeal of laws involved in the case. Despite this, the High Court found Croome successful, and resulted in a number of amendments being made, and the legalisation of homosexual relationships in Tasmania, on the basis of human rights.