Case study: Homosexuality and the law

Attitudes to homosexuality is another area where social values have changed considerably in recent times. Not that long ago homosexuality was considered so immoral and shameful that it was a criminal offence. This negative attitude was largely predicated on religious values and teachings. The traditional Christian view was that homosexuality was against God’s natural order and contrary to the obvious purpose of marriage, which was the procreation of children. Laws against homosexual activity were common, though they focused almost entirely on male homosexuality (British legislators did not believe lesbianism was likely or even physically possible). England’s Buggery Act, which dated back to 1533, declared male homosexuality a capital offence, a status it retained until 1861. Australian colonial governments adopted England’s anti-homosexuality laws and they continued in place after Federation.

Changing values in the mid-20th century gave rise to a push for law reform. As society became more secular and religious teachings less dominant, public support for strict punishments for sexual conduct began to dwindle. A greater understanding of psychology and physiology saw homosexuality recognised as a variation in behaviour rather than an aberration or sinful conduct. Homosexuals themselves, once forced to suppress their sexuality, began to speak openly about their situation – and against the laws that affected them. Gay men and women began to appear more frequently in popular culture, bringing them into mainstream society and challenging public perceptions and paranoia. One pivotal moment came in 1972 when high-rating TV drama Number 96 introduced Don Finlayson as the first gay character on an Australian television series. Played by Joe Hasham, Finlayson became a popular character on the hit series

In Australia, the first steps to decriminalise homosexuality began with the formation of pressure groups in the late 1960s. South Australia became the first state to permit homosexuality between consenting adults (1975) followed by the ACT (1976) Victoria (1981) New South Wales (1984) Northern Territory (1984) and Western Australia (1989). Tasmania remained the ‘last bastion’ of anti-homosexual legislation. Homosexual acts were specifically outlawed in Tasmanian statutes, although this law was rarely used. The last charges under the law were laid in 1985, against an ‘offender’ having sex with another man in a car (he received an eight-month prison term). Despite never being policed, the legislation remained into the mid-1990s, even though one of Tasmania’s newly elected Federal Senators, Doctor Bob Brown, was himself gay.

However while decriminalising homosexuality simply requires the amendment of various state criminal codes, legalising same-sex marriages is a more difficult undertaking. Consideration must be given to if and how same-sex couples can access the same rights and benefits enjoyed by heterosexual partners. This includes but is not limited to things such as tax benefits, combined health insurance, joint ownership of property, joint bank accounts and access to welfare payments. Parenting rights such as access to IVF, adoption, surrogacy, ‘baby bonus’ payments, family tax payments, education and so on must be accommodated in new and existing legislation. And if same-sex marriages break down, the law must accommodate separation, divorce, division of property, access to the Family Court, child custody, access rights and maintenance payments.