Toonen V. Australia - Sodomy Laws in Australia

Sodomy Laws in Australia

Australia inherited the United Kingdom's sodomy laws on colonisation in 1788. These were retained in the criminal codes passed by the various colonial parliaments during the 19th century, and by the state parliaments after Federation.

Following the Wolfenden report, the Dunstan Labor government introduced a "consenting adults in private" defence in South Australia in 1972. This defence was initiated as a bill by Murray Hill, father of former Defence Minister Robert Hill, and repealed the state's sodomy law in 1975. The Campaign Against Moral Persecution during the 1970s raised the profile and acceptance of Australia's gay and lesbian communities, and other states and territories repealed their laws between 1976 and 1990. The exceptions were Tasmania and Queensland.

Male homosexuality was decriminalised in South Australia in 1975, and in the Australian Capital Territory in 1976, followed by New South Wales and the Northern Territory in 1984. Western Australia legalised male homosexuality in 1989 under the Law Reform (Decriminalization of Sodomy) Act 1989. The states and territories that retained different ages of consent or other vestiges of sodomy laws later began to repeal them: Western Australia did so in 2002, and New South Wales and the Northern Territory did so in 2003. Tasmania decriminalised sodomy in 1997 following the High Court case Croome v Tasmania.

Queensland remains the only state or territory in Australia to retain a defined sodomy law. Section 208 of the Criminal Code Act 1899, "Unlawful Sodomy", makes sodomy a crime for any person not yet 18 or if involving any person not yet 18. The maximum penalty is 14 years imprisonment for attempting or committing sodomy. "Consent" is not accepted as a defense. The age of consent for other sexual activity in Queensland is 16, but a higher minimum age for anal intercourse was introduced by the Goss Labor Government in the November 1990 Bill which otherwise decriminalised sex between men. A truly equal age of consent had been recommended by the 1990 Parliamentary Criminal Justice Committee which reported on reforms in laws related to homosexuality. "Recommendation 7" of that Committee's Report was the only majority recommendation which was not adopted. In 1996 the National/Liberal Government changed the terminology in Section 208 from "anal intercourse" to "sodomy" and doubled the applicable penalties. In October 2008 Labor's Attorney-General Kerry Shine raised the penalty for attempting sodomy to be the same as for committing the act.