Interview with Rodney Croome
By ruling that Tasmania's anti-gay laws violate human rights, the United Nations Human Rights Committee has made a historic decision with global implications. The decision, made public on April 11, was that the Tasmanian laws infringe the International Covenant on Civil and Political Rights (ICCPR), to which Australia is a signatory.
The 18-member committee was unanimous that Tasmania's laws violate the provisions of the ICCPR relating to the right to privacy and the right to freedom from discrimination on the grounds of sex, which, it argued, includes sexual orientation.
This amounts to recognition by the UN body that the right of adults to engage in consenting sexual activity in accordance with their sexual orientation is a basic human right: that gay and lesbian rights are human rights.
Shortly after the UN decision was made public, RODNEY CROOME of the Tasmanian Gay and Lesbian Rights Group was interviewed by TOM FLANAGAN for 91×ÔÅÄÂÛ̳ Weekly.
The UN Human Rights Committee decision has been hailed as a global victory for gay and lesbian rights. What are the global implications?
The most immediate impact will be seen in those countries which have laws like Tasmania's and have signed the First Optional Protocol to the International Covenant on Civil and Political Rights.
The First Optional Protocol allows individuals to make complaints directly to the UN Human Rights Committee, as we did. One hundred and twenty countries have signed the ICCPR. Of these, 50 have signed the First Optional Protocol; 15 of these have anti-gay penal laws.
Those countries include Jamaica, Nicaragua, Zambia, Algeria, Libya and Ecuador. Now that we've set the precedent, if people from those countries take cases to the UN Human Rights Committee, it's extremely likely that they'll win. That's obviously most important for those countries that have organised gay and lesbian movements, because they will be the ones to initiate that action.
Jamaica and Nicaragua meet these criteria. In fact, before the decision came down, we heard second-hand from activists in the US that there were people in Kingston, Jamaica, and Managua, Nicaragua, who were looking to take cases to the UN if the decision on Tasmania was favourable.
[The left-wing Sandinista government got rid of Nicaragua's anti-gay laws during the 1980s, but the US-backed Chamorro government that came to power in 1990 reintroduced laws even more repressive than those repealed by the Sandinistas.]
The next most immediate impact will be in those countries with anti-gay and anti-lesbian laws which have signed the International Covenant but don't allow individuals to take cases to the UN Human Rights Committee, that is, those countries which haven't signed the First Optional Protocol.
These countries will feel the pressure of the UNHRC decision, because the indictment of the Tasmanian laws implies an indictment of their laws as well. The countries in this category which spring to mind, and which have organised gay and lesbian movements that can make this point, include the US, India and some of the former Soviet republics which still have the old Soviet laws about homosexuality.
Even more broadly, there are countries which have signed the ICCPR which don't necessarily have anti-gay penal laws, but which have laws which discriminate against gay men and lesbians in some form or other.
The single most important thing about the UNHRC decision is that it says that discrimination on the basis of sexual orientation is not acceptable, in the same way that discrimination on the basis of sex and race aren't acceptable. It's the first time an international human rights body has interpreted the international human rights charter to mean that.
Now every government that discriminates against gay men and lesbians stands indicted by this decision.
What are the implications of the UN decision for Australia?
At a national level, the decision means that the federal government for the first time has the authority, under its international obligations, to move in a whole lot of different areas of legislation and policy, in particular to pass national laws which prevent discrimination on the grounds of sexual orientation.
That will be important because there are some states where that legislation doesn't exist — Victoria, Western Australia and Tasmania, for instance.
And it gives the federal government greater authority to act, for instance, in recognising gay and lesbian partnerships — in the public service, for instance. There are all these legal reforms that the federal government can now embark upon, if it wishes to.
The decision also reflects badly on those states like Western Australia, which has a higher age of consent for gay men (21) than for heterosexuals and lesbians (16).
And, of course, there is a much greater likelihood that the Tasmanian laws will change. But they aren't going to be changed by the Tasmanian PARliament, because of opposition from both the Liberal state government and the upper house.
The Liberals, both state and federal, say that federal intervention would violate the state's rights. What's your response to that argument?
From a simple constitutional point of view, criminal law might be a matter of state concern, but human rights are clearly an area of federal government jurisdiction. If the human rights of any Australians are being violated, it's a federal government matter. That's what we're arguing: it's a human rights issue, not a criminal law issue, so the federal government has jurisdiction.
The other point we're arguing is that the Tasmanian people want reform. Opinion polls show that Tasmanians support reform. [The latest poll, taken in November 1993, showed that 58% of Tasmanians support decriminalisation, with 33% opposed.] And the majority of members of the Tasmanian lower house support reform, but the Liberal Party won't allow its members a conscience vote on the issue.
So even if we see it as a matter of federal concern, still the people of Tasmania support it, and a majority of their elected representatives support it.
The Legislative Council, the Tasmanian upper house, is the most undemocratic legislative chamber in the country. I live in an electorate with 25,000 people, and there are some electorates with less than 4000 people. It doesn't represent Tasmanians. It has a ridiculous electoral system where it never goes to a general election. Three members come up for election each year. They're always local identities elected on local issues, never on state issues.
The upper house is very powerful constitutionally in that it can throw out any government legislation without having to go to an election itself. It's like a legislative chamber from the 18th century with white, middle-class, older heterosexual men revelling in every ounce of privilege that they have.
They won't pass gay law reform. Some of them believe that we're perverts that should be tracked down and hanged. These are things that Legislative Council members have actually said. As long as these kind of elites have control in Tasmania, then people's wishes and any concept of human rights are not going to be realised.
So what are you calling on the federal Labor government to do?
Since there's no chance that the Tasmanian parliament is going to change this law, we want the federal government to intervene by passing a law that nullifies the laws here.
It's clear that the UN decision gives the federal government the power to change the law under its external affairs powers. No concept of states' rights limits the federal government's powers in that regard. If the Tasmanian government decided to challenge that in the High Court, it wouldn't have a hope in hell. This has been established previously by the Franklin Dam case.
So they have the power;, the crucial question is whether they have the political will. I don't want to sound too pessimistic, but I don't think that the will will be there unless people mobilise to force them to intervene.
The Labor government in Canberra is going to be ambivalent about intervention at best, because it's frightened about the electoral impact of such a move. They're afraid they will lose a couple of electorates in Tasmania, maybe Bass and Lyons. We've put to them that they won't, looking at the electoral figures. But I still often think that their electoral analysis can be quite irrational, particularly when it comes to gay and lesbian issues.
I guess where this is leading me is to point out that the campaign for us isn't over; in fact it's just beginning.
We can't allow this issue to become one that's fought out between governments, because it will either die away because it's too difficult for both governments, particularly the federal government, or some compromise will be reached that is completely unsuitable. So we have to make sure that we're still involved in the debate.
We have a number of different strategies for ensuring that the gay and lesbian community stays right in the centre of things and isn't marginalised. We're not going to let the debate be taken over by governments that don't have our interests at heart.
What do you say to the argument, "The law is not enforced so it doesn't matter"?
What the state government has been saying is that the law is not enforced and shouldn't really be enforced — well most of them are saying that — but even if it's not enforced, it serves an educative role. What they mean, I guess, is that it stops people being gay. But laws don't stop people being gay, that's absurd.
If the law has any educative role, its role is to educate people in discrimination, harassment, intolerance and prejudice. And that's why we want it changed!
What has the UN decision meant in terms of gay activism in Tasmania?
In terms of activism the decision has really spurred us along. The UN case has been a paper war really. Now that the decision has been made and the Tasmanian government has been so aggressively opposed to it, those two factors — the raised expectations caused by the decision and the antagonism from the government — have mobilised quite a few people. We've got a big gathering at our stall at Salamanca markets this Saturday, where we're going to have speakers. On Tuesday, April 20, we've got a big rally at Parliament House. And a number of other actions are planned.
[The Tasmanian Gay and Lesbian Rights Group is asking all supporters to write to the federal attorney general, Mr Lavarch, Parliament House, Canberra ACT 2600, and also to Prime Minister Paul Keating, urging the federal government to overrule the Tasmanian anti-gay laws.]