Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Current HansardDownload Current Hansard   

Previous Fragment    Next Fragment
Wednesday, 11 May 1994
Page: 602

Senator ABETZ (12.43 p.m.) —The decision of the United Nations Human Rights Committee delivered on 31 March 1994, concerning Tasmania's criminal code, has attracted a lot of superficial attention. Its decision highlights the need for all Australians to call on their parliamentarians to get off the gee-whizzer of international treaty making. Whilst on the gee-whizzer the rider has fun and a sense of great exhilaration. However, immediately afterwards, the rider tries to walk in a straight line and wobbles all over the place. Similarly, our domestic politics and constitutional arrangements have been put into a spin by this unhealthy fantasy for international treaties.

  There are many flaws in relation to the determination of the human rights committee. Its definition of `privacy', for example, would allow incest to be decriminalised. Similarly, its definition of the word `sex' has been expanded to include sexual preference, as opposed to distinction on the basis of gender. Today's debate, however, is not about the tortured logic and the gross flaws in the decision. The purpose of my comments today relates to the distortions put forward by Mr Nicholas Toonen, the complainant. Indeed, it is quite apparent that the committee accepted his assertions on face value without taking into account the indisputable evidence that Tasmania sought to have placed before it indicating that Mr Toonen handles the truth carelessly.

  It is a sorry reflection on the committee that it did not abide by its own rules of fairness and justice. Article 14 of the United Nations convention requires that people ought to have the right to examine, or have examined, the witnesses brought against them. If this procedure had been followed and Mr Toonen had had to give his evidence under oath, I have no doubt whatsoever that the complaint would have been dismissed and Mr Toonen would now be facing a charge of perjury or a charge of seeking to pervert the course of justice. The fact that Tasmania was not given the full opportunity to cross-examine Mr Toonen and to argue its case reflects in this terribly flawed decision.

  However, the real purpose of my address today is to deal with the outrageous assertions made by Mr Toonen. He asserted:

. . . it may also be relevant to note that Tasmania has a history of enforcing its anti-gay criminal laws far in excess of its comparable jurisdictions. Tasmania was the last jurisdiction in the British Empire to hang men convicted of homosexual acts. In the 19th and 20th centuries it has recorded the highest prosecution rate and the highest rate of capital punishment for homosexual sexual activity of any Australian jurisdiction and it is the only Australian jurisdiction in which women have been prosecuted for homosexual acts.

The authority for this assertion was a book by Robert French entitled Camping by a billabong. It is a book about gay and lesbian stories from Australian history. Australians ought to be aware that the front cover of the book shows fully exposed men and young boys standing side by side next to a billabong. The book, in my view, is more propagandistic than it is historical, but that is beside the point. Mr Toonen seeks to rely on this book to make all the assertions I have just referred to. However, the book he quotes does not support any of the statements made. Whereas Mr French said in his book that he knew of only one case where two women were faced with a charge of indecency, Mr Toonen liberally translates that into being the only Australian case in which women have been prosecuted. Clearly, that is a distortion and a misquote.

  Further, in his book Mr French said that Tasmania was the last jurisdiction in the Australian colonies to execute somebody for the crime of buggery. Mr Toonen translates that into being the last colony in the British Empire. Once again, that is a distortion. Further research indicates that there has been no execution in the state of Tasmania this century for homosexual activities. So Mr Toonen has sought to mislead again. In fact, there have been only three executions in the state of Tasmania this century and they were in 1913, 1922 and 1946. All these executions were for the crime of murder. Tasmania's record in relation to hanging is better than that of other states such as Victoria.

  Research indicates that there have been no executions for any crimes other than murder in Tasmania since 1875. Research also indicates that the last executions which appear to have been for homosexual activities were those of Whitnalder and Collins in 1863. This case is mentioned by Mr French. Although Mr French states that Collins was executed for buggery, the official records say that his crime was sodomy. It should be noted that the term `sodomy' was being used at that time to refer to a wide range of activities. The record is not clear as to which variant of sodomy had been practised in Collins' case. Further, it should be noted that Whitnalder was already under a sentence of death in New South Wales for the crime of rape.

  Mr French also referred in his book to an 1828 case of a Samuel Cox. Research indicates that French should have been referring to the case of Cog, whose sentence was commuted on the ground that his offence had not been properly proven. As though this attempt at rewriting history were not enough, the complainant, Mr Toonen, then makes a most outrageous allegation. He says:

. . . since lodging communication 488/1992 I have lost my employment partly as a result of this communication.

He goes on to say:

I stopped working for the Tasmanian Aids Council on the 2 July, 1993 after 4 1/2 years employment as the result of the external review of the council which recommended the termination of my employment. This review was imposed on the Aids Council by the Tasmanian Government through its Department of Community and Health Services.

He says further:

. . . the actions by the Department . . . were motivated by its concerns over my high profile complaint to the U.N. Human Rights Committee and my gay activism . . . At no time was there any question of my work performance being unsatisfactory.

So much for Mr Toonen's assertions. Let us move to the facts. The review of which Mr Toonen speaks was not imposed on the Tasmanian AIDS Council by the Tasmanian government. It resulted from concerns about the council which were expressed to the Australian Federation of AIDS Organisations by various individuals and then passed on by the federation to the Commonwealth government. A review was then commissioned jointly by the Commonwealth Department of Health, Housing and Community Services and the state Department of Community and Health Services with, and I stress, the agreement of the Australian Federation of AIDS Organisations and the Tasmanian AIDS Council. Two reviewers were appointed, neither of whom were employed by the Tasmanian state government. They were Ruth Cotton, a Commonwealth employee, and Bill Whittaker from the Australian Federation of AIDS Organisations.

  The statement that the review recommended the termination of Mr Toonen's employment is false. The recommendation was that the position of general manager be retitled `executive officer' and a new duty statement and selection criteria be approved. The recommendation necessarily envisaged the termination of Mr Toonen's job but the review expressly stated that Mr Toonen was not precluded from applying for the new position. As it turned out, for his own reasons, Mr Toonen did not apply. The termination of his services as general manager was negotiated before the Tasmanian Industrial Commission and he received appropriate severance money as a result.

  The reasons behind the recommendations of these two independent reviewers with whom the state government had nothing to do whatsoever included the following: the council was in need of a greater sense of purpose and direction with more leadership being provided by the senior staff officer; consistent with this, the work of the senior staff position in the council needed to include activities such as the development of policy, strategic planning, the setting of priorities, negotiating with other organisations and government and media work; and, Mr Toonen's dealings with other staff had not been good, leading to a high turnover and generally low morale.

  The reviewers clearly expressed dissatisfaction with a number of aspects of Mr Toonen's work yet he boldly and falsely asserted to the United Nations that there was no dissatisfaction with his work performance. The AIDS council of Tasmania did not disagree with the recommendations of the two independent reviewers. The AIDS council, however, was slow to implement the recommendations, therefore it was told to pursue the implementation of the review or face the possible consequences of a financial penalty. The deadline imposed was the very deadline appointed by the two independent reviewers who, I stress again, were not appointed by the Tasmanian government. All of these factors clearly place a very different complexion upon the termination of Mr Toonen's employment. Until now, Mr Toonen has been able to be seen as a knight in shining armour and the Tasmanian government as the dragon.

  No matter what one's view on this debate, the sort of distortion that was peddled before the human rights committee is completely unacceptable and needs to be condemned by all fair-minded, thinking Australians. What is of great concern to me is that the decision of the human rights committee simply regurgitates Mr Toonen's distortions. I will quote from paragraph 7.1. Concerning Mr Toonen, the committee says:

. . . his employment was terminated . . . following an external review of the Councils work which had been imposed by the Tasmanian Government through the Department of Community and Health Services.

That, clearly, as has been shown, is incorrect. However, the committee did not deem it appropriate to say that such evidence was challenged and that it could not make determination as to who was telling the truth. Instead it simply repeated assertions as presented by Mr Toonen and accepted them at face value. It further regurgitated the distortion that at no time had there been any question of Mr Toonen's work performance being unsatisfactory. Clearly, that was also wrong.

  Mr Toonen, in his submission, did not tell the United Nations that the former impasse that had been reached in the Tasmanian parliament, when he first lodged his complaint concerning the changing of the criminal laws, had been resolved by the people of Tasmania by electing a lower house which was committed to the retention of the current law. Yet the United Nations stated in its decision that it noted the existence of an impasse between the two houses of the parliament. There is no such impasse.

  The whole decision is flawed, is biased, is not based on the normal principles of natural justice, the right to a fair hearing, the right to cross-examination, the right to a public hearing and all those other things that fair-minded Australians have come to expect from any impartial and appropriately constituted judicial body or board of inquiry.

  I trust that the media will also take into account what I have said today and reconsider their attitude and their handling of this matter so that it is dealt with on a fair and equitable basis. Whether the decision of the Tasmanian government not to change its criminal laws be right or wrong, the simple fact is that the Tasmanian government was elected on that policy.

  In conclusion, I am sure that I speak for the views of all Australians when I say that every party to a dispute, whether it be an individual, a state, a country or an international body, should be granted the fundamental right of having its case not only heard but also properly considered before a decision is made. There is no doubt that it is this fundamental right which forms the cornerstone of every system of judicial equality and it is those fundamentals that have been overlooked by the United Nations in this decision.

  I trust my brief contribution today will expose the partiality and inconsistencies that are contained in Mr Toonen's submission and reflected so pathetically and extensively in the United Nations findings on this issue, and will at least go some way to balancing the debate. For Australia's sake I trust that the Labor Party will not seek to abuse the external affairs power in this matter. The threshold question surely must be: do we believe in government for the people, by the people, or government by an external body? (Time expired)