Legal Studies Assessment

Law reforms and Homosexuality

Accuracy, fairness, discipline and diversity are some values society holds as a strong reflection of what is considered important, and as a result has a substantial influence on the laws of Australia. Over time society has changed dramatically, in terms of their values and the exposure to other cultures. In return this affects the overall values of society and impacts on the changes of the laws, where it must meet the needs of humanity. This process of examining and changing existing laws, which aims to improve justice and efficiency is entitled as law reform. It focuses on bringing the law into line with current conditions. This series of actions is undertaken by the Australian Law Reform Commission. It is a federal agency operating under the Australian Law Reform Commission Act 19961 (Cth) and is highly dependant on the request of the Attorney-General of Australia. In order for law reforms to take place in must comply and agree with the terms of the Constitution, which is divided into The Parliament, The Commonwealth Executive and The Judicature. There are many conditions that give rise to law reform in relation to contemporary issues in Australia; for instance homosexuality. These certain conditions include changing social values, new concepts of justice and health issues. Homosexuality is the sexual attraction or behavior among members of the same sex. The common terms used in modern society gays and lesbians have become a controversial issue amongst humanity, but over time the values of society have changed, in terms of acceptance and justice and has helped to give rise to law reform. As time goes by values change as society ages, due to many impacts such as multiculturalism, improved technology, and sustained lifestyles. Throughout history homosexuals have been admired, as well as condemned, discriminated and isolated amongst nations. It has been practiced for many centuries, but had not been advocated until mid 20th century when homosexuals inaugurated to be more open about there sexuality. This caused great havoc and divisions amongst society groups and led to the alienation of these people.
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Discussion about the Law reform Commission, Australian Government ALRC, http://www.alrc.gov.au/ (retrieved 8/3/11) 2 Summary of different Time Magazines, Metafilter http://www.metafilter.com/93018/Time-magazine-onhomosexuality-the-50s-through-the-70s (retrieved 8/3/11) 3 Court Case- Toonen v. Australia (1994), http://www.austlii.edu.au/cgibin/sinodisp/au/journals/PLPR/1994/33.html?stem=0&synonyms=0&query=title(Toonen%20and %20.%20Australia%20) (retrieved 9/3/11 ) 4 Extract of Toonen v. Australia (1994 http://www.austlii.edu.au/cgibin/sinodisp/au/journals/PLPR/1994/33.html? stem= 0&synonyms=0&query=title(Toonen%20and%20.%20Australia%20 (retrieved 9/3/11)

Homosexuals, for a long period of time were disowned from society, they usually faced physical abuse and was minuscule to humanity. In the October 24th 1969 edition of the Time magazine, it published an articled titled: Homosexuality: coming to Terms. It stated that homosexuals are one of the most despised and harassed minority groups2. This portrays the strong hatred and rejection of society towards these individuals and conveyed a lack of support within this minority group. In 1994 the case: Toonen v. Australia (1994)UNHRC3 was presented in the courts regarding the harmful impact of encouraging discrimination, harassment, and violence against gay and lesbian Tasmanians. Toonen argued that because of his high-profile activism, his activities as a HIV/AIDS worker, and his long-term relationship with another man, his private life had been threatened by the existence of the Sodomy Law. He additionally argued that the laws restricted him from "openly exposing his sexuality" and publicizing his views on law reform as this would have been harmful to his employment. He continued to argue how it could create the conditions for discrimination in employment, vilification, threats of physical violence and the violation of basic democratic rights4. This specific example of the court case shows how laws were very strict against Homosexuals, and endangered their occupations and their likelihoods. It conveyed the lack of justice and freedom for these individuals. Furthermore the Australian government had inherited the Sodomy law5 from the United Kingdom when they were colonized; this was in action from 1788 until approximately 1975. It was a law that defined sexual acts amongst homosexual couples as a crime, and if practiced individuals could face 1-10 years of prison. After WWII especially during the 1950s which was the Modernistic era, Homosexuals were becoming more open to society about their sexuality. Many organizations had become introduced during this time to help support these minority groups assimilate into society such as Society Five, AIDS and the Australian arm of the Daughters of Bilitis6. The more individuals who spoke out about their sexuality, the more organizations had been formed, leading to a change in heart by society. Society began to become more conscious of the minority group and saw the disadvantage faced by homosexuals; they began to be more accepting and accepted the values of diversity, equality and respect in Australia. Through many protests this eventually led to the government introducing homosexuality in the Anti-Discrimination Act of 1977(act NO. 142)7 and later amending the act in 1983. In part IV.c, Division 1 of the act states that A person discriminates
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5 About Sodomy law, http://www.austlii.edu.au/cgibin/sinodisp/au/journals/PLPR/1994/33.html?stem/ (retrieved 9/3/11) 6 Lists of Gay activists, http://www.politicalindex.com/sect10.htm (retrieved 10/3/11) 7 Anti Discrimination Act (1977) http://www.austlii.edu.au/au/legis/nsw/consol_act/aa1977204/notes.html (retrieved 10/3/11)

against another person on the ground of his homosexuality if, on the ground of (a) his homosexuality; (b) a characteristic that appertains generally to homosexual persons8. This refers that it is unlawful to discriminate an individual who is homosexual or depicts characteristics of a homosexual. The inclusion of homosexuality in the Anti- discrimination act had shown a great change in social values. In this present day, the people of society have become more tolerant and acknowledgeable of this minority groups today through the advocacy of many organizations. Through the exposure of multiculturalism, in the Australian culture, individuals are more open-hearted to all in the community, and is in there best interest to promote the main values of support, acceptance, freedom and equal opportunities to all members of the Australian culture. Changing social values and morality in society, in reference to homosexuality is very important to help improve the changes in laws, in order to alleviate the performance and productivity of society. However, the new concepts of justice are also a major factor that gives rise to the law reforms of homosexuality. The recognition of homosexuals has been increasing ever since the 1970s, and the concepts of justice towards these groups have also shown great change. In 1788 until 1994 Australia had established the Sodomy law under the Human Rights (Sexual Conduct) Act 19949, where it criminalized homosexuality. It was a crime for individuals to be homosexual and participate in sexual conduct as they would face sever punishments such as imprisonment. There was a lack of justice within society in the past as prejudice, negative stereotypes and discrimination were deeply imbedded in the value system and by the behavior depicted by the general public towards homosexuals. The case Young v. Australia (2003) UNHRC10 shows a great relationship with the discrimination and prejudice amongst homosexuals. 11This case concerned an Australian man (Edward Young) who applied for a pension on the basis of being a dependent of a war veteran. He was refused from receiving this pension as he was the same sex as his partner. This violated his right to equal treatment before the law. This particular case indicates that clearly there is not an adequate justice system that holds the values of equality and fairness. Arbitrary arrests and detentions12 where very common through out the 20th century where individuals who where suspected of being homosexual where apprehended. They did not have

Extract of Anti- Discrimination Act (1977) Section 142 http://www.austlii.edu.au/au/legis/nsw/consol_act/aa1977204/notes.html (retrieved 10/3/11) 9 Human Rights (Sexual Conduct) Act 1994, http://www.austlii.edu.au/au/legis/cth/consol_act/hrca1994297/ (retrieved 11/3/11) 10 Young v. Australia (2003), http://www.nswccl.org.au/issues/hr_violations.php (retrieved 11/3/11) 11 Extract from Young v. Australia (2003) http://www.nswccl.org.au/issues/hr_violations.php (retrieved 11/3/11)

the right to know the accusation made against them, neither the freedom to speak- out about their sexuality. Through the introduction of many activists during the late 20th century, gave rise to new concepts of justice and has continued through out the 21st century, even up to the present day. There were many social movements in Australia, being the most prominent organizations where AIDS, Queer nation and I am Gay13. The similarity between all the supporting organizations was the goal of social acceptance. These activist help lobby the UN into introducing fairness and equal rights to all. This is evident through the introduction of the International Gay and Lesbian Human Rights Commission14 which was under the jurisdiction of the UN in 2004, this called on to all states to end discrimination against homosexuals. Furthermore, in 2008 the UN introduced the United Nations Declaration on Sexual Orientation and Gender Identity15in which Australia had signed to. This mainly focused on the disapproval of violence, harassment, discrimination and the exclusion of homosexuals in society and the introduction of freedom of speech and equality. This is evident in the Universal Declaration of Human Rights (1948)16 Article 1, where today it has received a lot of awareness and is practiced. The federal government has also shown a change in new concepts of justice as the government had passed the bills of 17Limited partnership and same sex adoption in 2010. This implies the acceptance of this minority group in society. 18Additionally, the State Government in 2008 directed the governments funds towards the worlds biggest annual gay and lesbian festival and now has an inclusion in the NSW Master Events Calendar, which is a schedule of the states most significant events to be launched. This conveyed the changes in justice and the freedom of choice and recognition of these individuals in humanity.

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Arbitrary arrest and detentions, http://www.unhcr.org/refworld/topic/4565c22532/4565c25f3fb.html (retrieved 12/3/11) 13 List of gay activist, http://www.splcenter.org/get-informed/intelligence-report/browse-allissues/2010/winter/the-hard-liners (retrieved 12/3/11) 14 International Gay and Lesbian Human Rights Commission, http://www.iglhrc.org/cgibin/iowa/home/index.html (retrieved 13/3/11 ) 15 United Nations Declaration on Sexual Orientation and Gender Identity, http://www.hrw.org/en/news/2008/12/11/un-general-assembly-address-sexual-orientation-and-gender-identity (retrieved 15/3/11) 16 Universal Declaration of Rights 1948, http://www.cirp.org/library/ethics/UN-human/ (retrieved 15/3/11) 17 Parliament of Australia Bills, http://www.aph.gov.au/bills/index.htm (retrieved 15/3/11) 18 Government and the Mardi Gras, http://www.mardigras.org.au/mardi-gras-2011/index.cfm (retrieved 15/3/11) 19 Buggery law, http://gaylife.about.com/od/lovesex/g/buggery.htm (retrieved 15/3/11)
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New concepts of justice are a substantial factor that influences law reform. However on the other hand, health issues such as HIV/ AIDS relating to homosexuals, play a crucial role in law reform. Health issues are any factors that effect the body, hence HIV/AIDS. This particular disease has a strong relationship with homosexuals and the need for law reform. Due to the strict restriction of homosexuals and the alienation of this minority group, homosexuals usually face discrimination, of being affected by HIV/ AIDS. In the past The Buggery Law19 had been put in place to ban any sort of unnatural sexual conduct, but as time went on this law became obsolete and sexual conduct amongst homosexuals where being practised. This resulted in an increase in HIV/ AIDS as there was a lack of protection used by individuals. Homosexuals normally faced discrimination in society for being affected by HIV/AIDS; they didnt have proper 20medical requirements and had a lack in support by medical doctors as homosexuals were intimidated and embarrassed by others to seek medical assistance. In 2001 the court case Gerhardy v. Australia (1998) UNHRC21, Expressed the discrimination he was faced from various groups in society as he was suffering from HIV/AIDS. 22He quoted in case I have always hidden my homosexual tendencies from my family and friends. To now come out and say that I am gay and that I have AIDS, it's a double stigma. Unfortunately, the stigma is attached to you at the time you need support, you are afraid of dying, and you are hurting pretty badly. This case closely interrelates with the chosen line of argument as it gives an insight of the humiliation and isolation homosexuals felt in society especially when they where suffering from HIV/ AIDS. Throughout time HIV/AIDS began to become a critical issue in Australia, this illustrated the introduction of discrimination of homosexuality in the Disability Discrimination Act 199223. This was an improvement of previous existing laws as it helped those who where affected by Aids have more support by society , where it states in the Act 24Disability includes the presence of organisms, causing, or capable of causing disease or illness including HIV/AIDS. Furthermore, the Commonwealth government had made many law reforms, including Policies

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Life of the homosexuals, http://www.religioustolerance.org/homosexu.htm (retrieved 15/3/11) Gerhardy v. Australia (1998) UNHRC, http://www.austlii.edu.au/cgibin/sinodisp/au/journals/MurUEJL/1999/40.html?stem=0&synonyms=0&query=homosexuality%20HIV#n35 (retrieved 16/3/11) 22 Extract from Gerhardy v. Australia case, http://www.austlii.edu.au/cgibin/sinodisp/au/journals/MurUEJL/1999/40.html?stem=0&synonyms=0&query=homosexuality%20HIV#n35 (retrieved 16/3/11) 23 Disability Discrimination Act 1992, http://www.austlii.edu.au/au/legis/cth/consol_act/dda1992264/ (retrieved 16/3/11) 24 Extract from Disability Discrimination Act 1992, http://www.austlii.edu.au/au/legis/cth/consol_act/dda1992264/ (retrieved 16/3/11)

such as: The National HIV Testing Policy25 in 2006 and the Public Health Act26 in 2005. This introduction of change, made it compulsory for all to be tested on HIV/AIDS which allowed homosexuals to have access to better medical conditions and support from medical experts. There are many conditions that give rise to law reform in relation to contemporary issues in Australia; for instance homosexuality. These certain conditions include changing social values, new concepts of justice and health issues. The primary focus of these factors relating to law reform in terms of homosexuality is to achieve equality, social acceptance and seek social justice where all homosexuals are treated all the same and have the freedom of equal opportunity in society. It has been quoted from a gay activist Denis De Rougamont that
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happiness of society comes from the beauty of acceptance.

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The National HIV Testing Policy, http://www.health.sa.gov.au/PEHS/PDF-files/hiv-testing-policy-2006.pdf (retrieved 16/3/11) 26 Public Health Act, http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/P/PubHealA05.pdf (retrieved 16/3/11) 27 Acceptance quotes, http://thinkexist.com/quotations/acceptance/ (retrieved 17/3/11)
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Bibliography

http://www.alrc.gov.au/ Australian Government ALRC, (retrieved 8/3/11) http://www.metafilter.com/93018/Time-magazine-on-homosexuality-the-50s-throughthe-70s Metafile (Retrieved 8/3/11) http://www.austlii.edu.au/cgi-bin/sinodisp/au/journals/PLPR/1994/33.html? stem=0&synonyms=0&query=title(Toonen%20and%20.%20Australia%20) Toonen v. Australia (Retrieved 9/3/11) http://www.austlii.edu.au/cgibin/sinodisp/au/journals/PLPR/1994/33.html?stem/ About Sodomy law (Retrieved 9/3/11) http://www.politicalindex.com/sect10.htm Lists of Gay activists (Retrieved 10/3/11) http://www.austlii.edu.au/au/legis/nsw/consol_act/aa1977204/notes.html Anti Discrimination Act (1977) (Retrieved 10/3/11) http://www.austlii.edu.au/au/legis/cth/consol_act/hrca1994297/ Human Rights (Sexual Conduct) Act 1994, (retrieved 11/3/11) http://www.nswccl.org.au/issues/hr_violations.php Young v. Australia (2003), (retrieved 11/3/11) Arbitrary arrest and detentions, http://www.unhcr.org/refworld/topic/4565c22532/4565c25f3fb.html Arbitrary arrest and detentions, (retrieved 12/3/11) http://www.splcenter.org/get-informed/intelligence-report/browse-allissues/2010/winter/the-hard-liners List of gay activist, (retrieved 12/3/11) http://www.iglhrc.org/cgi-bin/iowa/home/index.html International Gay and Lesbian Human Rights Commission, (retrieved 13/3/11 ) http://www.hrw.org/en/news/2008/12/11/un-general-assembly-address-sexualorientation-and-gender-identity United Nations Declaration on Sexual Orientation and Gender Identity, (retrieved 15/3/11) http://www.cirp.org/library/ethics/UN-human/ Universal Declaration of Rights 1948, (retrieved 15/3/11) http://www.aph.gov.au/bills/index.htm Parliament of Australia Bills, (retrieved 15/3/11) http://www.mardigras.org.au/mardi-gras-2011/index.cfm Government and the Mardi Gras, (retrieved 15/3/11) http://gaylife.about.com/od/lovesex/g/buggery.htm Buggery law, (retrieved 15/3/11) http://www.religioustolerance.org/homosexu.htm Life of the homosexuals, (retrieved 15/3/11) http://www.austlii.edu.au/cgi-bin/sinodisp/au/journals/MurUEJL/1999/40.html? stem=0&synonyms=0&query=homosexuality%20HIV#n35 Gerhardy v. Australia (1998) UNHRC, (retrieved 16/3/11)

Bibliography

http://www.austlii.edu.au/au/legis/cth/consol_act/dda1992264/ Disability Discrimination Act 1992, (retrieved 16/3/11) http://www.austlii.edu.au/au/legis/cth/consol_act/dda1992264/ Extract from Disability Discrimination Act 1992, (retrieved 16/3/11) http://www.health.sa.gov.au/PEHS/PDF-files/hiv-testing-policy-2006.pdf The National HIV Testing Policy, (retrieved 16/3/11) http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/P/PubHealA05.pdf Public Health Act, (retrieved 16/3/11) http://thinkexist.com/quotations/acceptance/ Acceptance quotes, (retrieved 17/3/11)