Kom ut!

Nicholas Toonen celebrating with friends only minutes after the ruling that removed Australia's last remaining sodomy law, 1994.

Nicholas Toonen took the Tasmanian sodomy law – the last one remaining in Australia – to the UN Human Rights Committee in the beginning of the 1990s. The result was a landmark ruling that initiated a wave of decriminalisation across the world. Meet the person behind the milestone court case Toonen v. Australia.

Interview by Malin Nord

In practice the Tasmanian police had not charged anyone for several years. Why was it so important to take the case to court?
- The police were not interested in enforcing the law after the late 1960s, however the law had significant symbolic effect, holding back gay people from being accepted, integrated and celebrated in Tasmania.

By the way, in 1995 towards the end of the campaign a number of gay men turned themselves in to the police (with statutory declarations) for breaking the law by having gay sex. The police were forced to investigate, and as my then partner had turned himself in they interviewed us both. I spent about an hour with two detectives from the Criminal Investigation Department answering lots of questions about my sexual activity, all of which incriminated me.

It was deadly serious and strangely funny at the same time, as they treated it like investigating a burglary, asking questions like ”And how did you proceed to put the condom on, and whose condom was it”. In the end the Director of Public Prosecutions decided that while there was more than enough evidence to prosecute it wasn’t in the public interest.

What made you decide to take the case to court?
- I was one of the leaders of the intense nine-year campaign for decriminalization in the Australian state of Tasmania. After years of campaigning and several attempts in the Tasmanian parliament to change the law, we looked to the Australian national government for help, but they had no power to intervene in Tasmanian laws unless they had a demonstrated basis in international law.

As a result I took the case to the United Nations Human Rights Committee (UNHRC) who ruled that Australia was in breach of the International Covenant on Civil and Political Rights (ICCPR) because of Tasmania’s anti-gay laws. The ruling provided the political and legal platform the Australian government needed to act.

What risks did the process entail for you?
- Politically the main risk in taking the UNHRC case was losing, in which case a negative international precedent would have been set, rather than a positive one. Personally I sometimes also risked a lot in the 9 year campaign, as did many people, but the gains were definitely worth any risk involved.

- When the ruling came we had the biggest parties imaginable, with a strange mix of gay activists, High Court judges, politicians, our parents and many others, says Nick Toonen, who now resides in Sydney, Australia.

Did you at that time comprehend the scope of it, what huge impact it was going to have?
– In 1988 I had no idea how much time and effort it would take to achieve our goal – and throughout the campaign while I had overall faith that we would succeed sometimes changing the law seemed impossible.

When we set out to take the case to the UNHRC it was hard to comprehend what a major impact it was going to have on our local campaign, let alone internationally. While we later developed more understanding of the future impact it might have on other countries, it’s been wonderful to see the real impact it’s had in the debates and legal outcomes in countries as diverse as India and the United States.

This process had quite serious consequences for your job situation. What happened?
– I did lose a job because of the case –  I had been employed for three years as General Manager of the Tasmanian AIDS Council when I took the case, and two years later in 1993 (when the UNHRC process was quite advanced) my employment was terminated following an external review of the Council’s work which had been imposed by the Tasmanian government. When the Council expressed reluctance to dismiss me the government threatened to withdraw the Council’s funding unless I was given immediate notice. The government’s actions were motivated by its concerns over my high profile complaint to the UNHRC and my gay activism in general. My complaint to the UNHRC had become a source of embarrassment to the Tasmanian government and they were determined to hit back, and did so by ensuring I lost my job.

Despite all this, you continued. What gave you the courage?
– I was motivated by a deep sense of justice that I learnt from my father, and a deep sense of pride in being Tasmanian – a deep connection to the place of my birth. It wasn’t until the law had changed that I felt free to seriously consider living elsewhere

I always felt determined, sometimes felt scared, and often felt exhilarated. The fear was real – we sometimes got death threats (by mail and phone) and occasionally abuse on the street. At some large anti-gay rallies there were more direct threats of violence – ironically the presence of the media often stopped potential violence at those events.

Also, a strong motivating factor for me was the isolation and invisibility I’d felt growing up – and wanting to change things so all young people in Tasmania grew up being aware of gay and lesbian issues and saw gay and lesbian role models in the media and elsewhere. I think we achieved that!

Nick Toonen discussing the UN case in the media glare with Rodeney Croome (right) and legal advisor Wayne Morgan (left).

How do you feel about being the one who got the last sodomy laws in Australia abolished?
– It was stunning when the Tasmanian Parliament finally changed the law. We had the biggest parties imaginable, with a strange mix of gay activists, High Court judges, politicians, our parents and many others. It did take a bit of adjusting, as when you achieve such a challenging goal it takes a while to realise it is no longer there, and that you can spend your time on other things!

I am very proud of the role I played, but also very aware that there were others who played equally important roles over the whole nine years, and many thousands of committed and brave individuals who contributed, also often for years.

- Following decriminalisation, a huge amount of positive energy for progressing gay and lesbian rights was unleashed in Tasmania, says Nick Toonen.

Has the decriminalization have any impact on the attitudes towards LGBT rights in Tasmania?
- Following decriminalisation, a huge amount of positive energy for progressing gay and lesbian rights was unleashed in Tasmania. Anti discrimination legislation was passed in 1998, relationship recognition legislation in 2003, gay support organisations were funded, programs to combat homophobia introduced across the education system, liaison groups established with the police, health department and education department, and Tourism Tasmania started targeting gay and lesbian tourists.

Also, opinion changed a great deal throughout the campaign with support for decriminalisation growing from 31% in 1988 to 58% in 1993.

What is the most important question for LGBT movement in Australia today?
– The most important legal issue is relationship recognition, specifically getting relationships recognized through the right to marry. While Australia has recently removed just about all specific discrimination in the law against same sex couples, marriage has great symbolic importance and we are still excluded from it.

The longer term and more fundamental issue is supporting and protecting young people – supporting young gay and lesbian people to be able to live fully and openly, and also protecting all young people from developing homophobic values and attitudes.

You were awarded an Order of Australia medal for your human rights work. Was it a redress for you or did you have other feelings about it since you and your partner had to get married in New Zealand because the wedding had no legal standing in Australia?
– It was a great personal honour, and an amazing surprise, to get the OAM – along with fellow campaigners Rodney Croome and Richard Hale. But it was quite ironic to be awarded an honour by the nation I had taken to the UNHRC, but also indicated how far we had come.

I had no hesitation in accepting the award because what it really recognised are the tens of thousands of people in Tasmania, across Australia, and around the world who contributed to the success of the nine year campaign.

And now Tasmania become the first Australian state to recognise overseas same-sex marriages. In what way, and how much, do you think that your case paved the way for that?
- The UNHRC case did help pave the way for subsequent changes, but only as one aspect of the overall campaign for decriminalization, a campaign which helped create fundamental change in community attitudes towards gay and lesbian people. And of course the work carried out by many people in the 13 years since decriminalisation has been equally important.

Read about Toonen’s case on Wikipedia.

The ruling of the UNHCR can be found here.