Part 1: Being Gay Was a Crime

Every year on the last Friday of August, schools and workplaces across the country wear purple to celebrate rainbow (LGBTQI+) young people, whether they are out, closeted or anything in between.

Wear It Purple Day celebrates diversity, community and acts as an important platform to advocate and raise awareness for the issues that rainbow young people face. However, it is important to remember that not very long ago a day dedicated to celebrating would not have been possible. This article is in two sections: Part 1: Being Gay Was a Crime and Part 2: Pride and Protest.

Execution outside Newgate Prison, early 19th century

Our history of harmful and oppressive anti-LGBTQIA+ laws begins long before the 1978 Mardi Gras. It begins before Australia’s invasion, in the Parliament of England in 1533. The Buggery Act 1533 was Britain’s first civil sodomy law. Previously, all matters of sodomy had been heard in the ecclesiastical court. The law outlawed both sodomy and bestiality effectively equating male homosexuality to as bad a crime as bestiality; both were punishable by death until 1861.

When Britain invaded Australia in 1788 they enforced their legal system, including The Buggery Act 1533. Federation in 1901 has little impact on these laws with each state adopting some variation of anti-homosexuality laws. What followed was decades of harmful, and often fatal, discrimination and oppression against LGBTQIA+ people.

Gradually, states moved away from the death penalty often replacing it with life imprisonment. Victoria was the last to remove the death penalty, instead punishing male homosexuals with 20 years’ imprisonment.

In the late 1960s organisations and community groups began to spark debate calling for the decriminalisation of homosexuality. Some of Australia’s first LGBTQIA+ lobby groups include the Homosexual Law Reform Society in Canberra (1968), Campaign Against Moral Persecution (1968), and the Daughters of Bilitis (1969). In October 1973, Liberal PM John Gorton put forward a motion calling that “in the opinion of this House homosexual acts between consenting adults in private should not be subject to the criminal law.” The motion, a conscience vote, passed 64 to 40. Whilst this was a major step forward for the state of LGBTQIA+ rights and freedoms in Australia, it did not have any practical effect as homosexuality was under state jurisdiction.

South Australia decriminalised male homosexuality in 1975. Decriminalisation in ACT came into effect from 1976, Victoria in 1980 and the Northern Territory in 1983, Western Australia in 1983, NSW in 1984 and Queensland in 1991. It is important to note that most jurisdictions still required a higher age of consent for homosexual sexual activity.

A The Examiner newspaper clipping from May 3, 1997 featuring Rodney Croome an his push for new protection laws.

However, the Tasmanian Government firmly held its stance against homosexuality. This led to Toonen v Australia, a case before the United Nations Human Rights Committee which ultimately ruled that their sodomy laws were in violation of the International Covenant on Civil and Political Rights. Despite this, Tasmania refused to repeal sodomy laws. In response, the Keating Government passed the Human Rights (Sexual Conduct) Act 1994 which stated that: “Sexual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy within the meaning of Article 17 of the International Covenant on Civil and Political Rights.” In 1997, Rodney Croome applied to the High Court challenging Tasmania’s continued criminalisation of homosexuality despite federal law. As a result, Tasmania finally decriminalised homosexuality in 1997.

Historically, Australia recognised the ‘gay panic defence’ as a viable application of the provocation doctrine which allowed for the violent crimes to be excused as the perpetrator had been ‘provoked’ by the victim. In this case, someone who had committed a violent crime such as murder could claim they had been provoked by a homosexual sexual advance. The ‘gay panic defence,’ was upheld by the High Court in 1997 in the case of R v Green. Green claimed that his friend Don had made a sexual advance on him, “the alleged touching was described as amorous, not forceful” elucidates SBS. Green reacted by punching Don 35 times then stabbing him with scissors 20 times. Upon an appeal to the High Court, the High Court ultimately upheld the ‘gay panic defence’ in the case of R v Green. Justice Michael Kirby, the was the only judge to dissent. He wrote that “This Court should not send the message that, in Australia today, such conduct is objectively capable of being found by a jury to be sufficient to provoke the intent to kill.” Justice Kirby was the only gay judge on the High Court.

The defence remained as a legitimate defence until the early 2000s when pushes for law reform resulted in it being overruled by parliaments. It was only in 2014 with the passing of the Crimes Amendment (Provocation) Bill that signalled the end of the so-called “gay panic” defence laws in New South Wales. The NSW Gay and Rights convenor, Justin Koonin stated “It sends a strong message that violence against people because of their sexual orientation is unacceptable and will certainly not be accepted as an excuse for murder. South Australia is the only state where it remains as a viable defence.

Part 2: Pride and Protest

At around 10pm on a cold night in, a small group of protestors gathered in Darlinghurst Sydney. This marked the first Sydney Mardi Gras and was part of a much larger movement for LGBTQIA+ liberation across the world. Sydney Gay and Lesbian Mardi Gras writes: “They intended to raise local issues such as decriminalisation of homosexuality, mark the anniversary of the Stonewall uprising in New York, protest the Australian visit of homophobic Festival of Light campaigner Mary Whitehouse, and promote the forthcoming 4th National Homosexual Conference.”

The scene outside the Central Court of Petty Sessions in Sydney where gay and lesbians demonstrated in 1978.CREDIT-FAIRFAX MEDIA

The March ended in violence by the police who harassed protestors. “You could hear them in Darlinghurst police station being beaten up and crying out from pain. The night had gone from nerve-wracking to exhilarating to traumatic all in the space of a few hours.” Later that week, the Sydney Morning Herald published the names, occupations and addresses of those known to have attended the protest. This public ‘outing’ resulted in many members of the community finding themselves out of work and disowned by their family and friends.  In 2016 The Sydney Morning Herald apologises for the damage caused  

40 years later The Sydney Morning Herald apologises for the damage they caused by publishing the details of these who attended the protest.

Despite the hostility and violence protestors were met with “the police attack made us more determined to run Mardi Gras the next year,” writes Sydney Gay and Lesbian Mardi Gras, “our people were out of the closets and into the streets.” Protests and subsequent arrests continued throughout 1978, however, the repeal of the NSW Summary Offences Act allowed for the 1979 Mardi Gras to be to be incident free. This was a major civil rights milestone for Australia’s LGBTQIA+ community. In the years since, Mardi Gras has continued both as a celebration of our community and as a protest against the many challenges we continue to face. This years’ theme was ‘WHAT MATTERS.’

In 2017, the year that we finally gained marriage equality, the Mardi Gras theme was ‘Creating Equality.’ Marriage equality was only achieved through decades of protest and demonstrations by the LGBTQIA+ community.

Looking back on the history of pride and the LGBTQIA+ community in Australia we can see how far we have come. These powerful changes in law reform and societal attitudes only came after community organising and protests. We still have so many strides to take towards complete equality for LGBTQIA+ people but in order to move forward, it’s important that we don’t forget our history and the pride and protest of generations before us.

Sydney has been selected as the host of WorldPride 2023.

* The views and opinions expressed in this article are those of the author(s) and do not necessarily reflect the official position of the Woke magazine.