Leader ex CRISPIN HULLThe Tasmanian Gay and Lesbian Rights Group called on the Federal Government yesterday to specifically over-rule Tasmania’s laws against homosexual conduct, rather than just pass a privacy law which would be a defence to a prosecution under those laws. They argue that it would be unacceptable for a person to have to go through the pain and trouble of being prosecuted and raising the federal law as a defence. They say it would be better to have the Tasmanian law over-ruled so there could be no prosecution in the first place.
That argument has merit, but it is more appropriately directed at the Tasmanian Government which is in the best position to directly repeal the repugnant law. The Federal Government is not in than position. It may not have the constitutional power to do so.
To date the Federal Attorney-General, Michael Lavarch, has handled the issue with a certain amount of common sense, some legal dexterity and some political cleverness.
Mr Lavarch quite sensibly points out that, while it is an important human-rights issue, it is not as if scores of homosexuals are languishing in Tasmanian jails. To the contrary. There are no extant prosecutions. The Tasmanian Director of Public Prosecutions is yet to decide whether to prosecute four men who had confessed to private homosexual acts. It would not be surprising if there were no decision or a decision were delayed for a very long time. That being the case, there has been no need to rush to legislation with the prospect of getting it wrong.
The Federal Government’s approach has been a political and legal minimalist one. The new federal law will not cause a direct confrontation with a state and will not directly attempt to override its criminal law. Rather its uses its foreign affairs power to bring one element of the International Covenant on Civil and Political Rights into Australian law by saying that sexual conduct between consenting adults in private cannot be subject to any arbitrary interference with privacy. In effect, a defence against some, but not all, prosecutions under Tasmanian law. It will be a defence in circumstances of consenting, adult, private acts, but not in circumstances involving minors, where there is no consent or where acts are done in public.
The prudence of the minimalist approach is that it is more likely to hold up constitutionally. The Federal Government’s power to enact foreign treaties is not unlimited. Certainly, a move to directly repeal some state criminal law would be breaking new ground. Indeed, most previous enactments under the foreign-affairs power have been the other way, with the Federal Parliament creating the criminal offences _ racial discrimination, damming rivers and so on.
The minimalist approach will also avoid a showdown between the governments. It seems that for a long time there has been a policy in Tasmania not to prosecute in cases that would attract the federal shield.
None the lest, one of the confessors says he will seek a declaration in the High Court on the day the Federal Act is proclaimed that the Federal Act repeals the Tasmanian Act. This shows a determination to have a showdown that neither the Federal or State Governments want. The Tasmanian Government, however, is not going to take the opposite tack by seeking a declaration that the Federal Act is invalid. In any event, the High Court has a marked reluctance to deal in hypotheticals. It prefers to deal with real cases, and if the Tasmanian Government is not in a prosecuting mood, there may not be any.
Mr Lavarch’s handling of the issue has given him some political pluses. The Tasmanian Government has been marginalised and painted as out of touch with community values. The privacy tactic has put the Federal Opposition in a bind, pitting its commitment to privacy against its commitment to states’ rights. Further, it has given the Federal Government a foot in the door for pursuing other elements of the international covenant at a later date: freedom of speech, assembly and freedom from unreasonable search and seizure, all matters that would require encroachments on present state criminal and civil law.
In all, Mr Lavarch should not be unduly concerned about the gay-rights groups seeking a High Court declaration, nor should he attempt to specifically repeal the Tasmanian law. In short he should not divert from his present course.