LGBT rights in Tasmania

Sodomy was originally outlawed throughout the island from the time of British settlement. The law was retained post federation as in all other Australian jurisdictions. Tasmania was the last British Empire outpost to carry out the death penalty for sodomy in 1867.[4] Over the subsequent hundred years, Tasmania had the highest rate of imprisonment for private consenting male sex anywhere in the world.[8]

In the late 1980s, Premier Robin Gray stated that homosexuals were unwelcome in Tasmania and police recorded the vehicle registration plates of people attending gay community meetings.[5] A gay rights stall set up in Salamanca Market in 1988 was repeatedly shut down by the Hobart City Council with over 120 people arrested by police.[3][4][9] By the early 1990s, the state had the harshest penalty for gay sex in the Western world at 21 years imprisonment.[4]

During the 1980s and early 1990s, six attempts at decriminalisation were emphatically rejected by the Tasmanian Legislative Council,[3] with politician Robert Archer calling for homosexuals to be "tracked down and wiped out" by police.[4] Social and political opinion remained sharply against LGBT rights until the late 1990s.[5] Many LGBTI Tasmanians responded to the hostile sentiment by either relocating to the mainland Australian cities of Sydney or Melbourne, living in the closet or committing suicide.[4] Recalling the personal impact of the 1990s decriminalisation debate, comedian Hannah Gadsby noted it led them to "rot quietly in self-hatred" and unable to develop an aptitude for relationships.[10][11]

The Tasmanian Parliament's repeated refusal to pass laws decriminalising private same-sex sexual acts resulted in local resident Nicholas Toonen bringing a human rights complaint to the United Nations Human Rights Committee,[12] which ruled in Toonen's favour on 31 March 1994. The Committee noted that "the criminalisation of homosexual practices cannot be considered a reasonable means or proportionate measure to achieve the aim of preventing the spread of AIDS/HIV," further noting that "The Australian Government observes that statutes criminalising homosexual activity tend to impede public health programmes by driving underground many of the people at the risk of infection."[13] Gay activists and Amnesty International also mounted a campaign in favour of reform including demonstrations in the state and elsewhere, holding meetings between LGBTI Tasmanians and community groups across the state and gay men self-reporting their then-illegal consensual activities to police to illustrate that the laws were unenforceable, given that police would not prosecute them on the basis that it was not in the public interest.[4][5]

Although the UNHRC decision of 31 March 1994 effectively called on the federal Keating government to overturn Tasmania's anti-homosexuality laws, Keating and his Attorney-General Michael Lavarch were initially slow to act, considering it a low-priority issue.[14] The continued criminalisation led to a petition signed by 12,000 people and a "Buy Right" boycott campaign targeting Tasmanian tourism and produce until the laws were repealed.[14][15]

Four months after the UNHRC decision and after failing to persuade the Tasmanian Government to repeal the offending laws, the Keating government passed the Human Rights (Sexual Conduct) Act 1994, with section 4 legalising sexual activity between consenting adults throughout Australia and prohibiting any laws that arbitrarily interfere with the sexual conduct of adults in private.[16] Lavarch stated the Tasmanian law was "an obnoxious criminal provision which doesn't exist anywhere else in Australia and is inconsistent with Australia's human-rights obligations".[15]

The Catholic Right members of the Australian Labor Party initially opposed the federal legislation but ultimately agreed to support its passage, while the issue split the opposition Coalition, with many members exercising their conscience vote against it and replacing their relatively progressive leader Alexander Downer with the more conservative John Howard.[14] This law did not directly invalidate the Tasmanian law, as the Keating government preferred to avoid a challenge from conservative states about states rights and instead rely on the High Court to indirectly overturn the Tasmanian law.[17] This approach was criticised by activists and academics for abdicating the political responsibility of legislators for an uncomfortable issue to the courts.[17]

Activist Rodney Croome was named the 2015 Tasmanian Australian of the Year for his LGBT rights work including the decriminalisation of homosexuality in Tasmania.

On 14 November 1995, Nick Toonen and his then-partner Rodney Croome applied to the High Court of Australia for a ruling that Tasmania's anti-gay laws were constitutionally overridden by the Human Rights (Sexual Conduct) Act 1994 and therefore invalid.[4][17] The case was taken by Alan Goldberg QC, who provided his services pro bono after Croome and Toonen were denied legal aid to mount the case despite fulfilling the criteria for funding as a public interest test case.[17]

In 1996, the state Liberal Government of Tony Rundle changed its position on gay law reform from opposition to allowing a conscience vote after failing in its attempts to have the High Court matter struck out and amid growing local support for reform.[18][19] The Tasmanian Greens under Christine Milne then began to push vigorously for law reform.[19]

As a result of these changes, on 1 May 1997, a law formally repealing its anti-homosexuality laws passed in the Tasmanian Legislative Council by one vote.[20][4][19] The age of consent in Tasmania is 17 years and is equal for all forms of sexual activity.[21]

In December 2015, the Tasmanian Liberal Government announced it would introduce legislation in the Tasmanian Parliament to expunge historic criminal records for consensual homosexual sexual activity.[22] This announcement followed a report released by the Tasmanian Anti-Discrimination Commissioner in April 2015 which recommended the establishment of such a scheme and how it should be modelled.[23] Individuals charged with offences pertaining to homosexual sexual conduct prior to its decriminalisation in 1997 will be able to submit an application with the state's Secretary of the Department of Justice to have such charges removed from their criminal records.[22] A draft bill was released by the Department of Justice in June 2016.[24]

On 6 April 2017, the Expungement of Historical Offences Bill 2017 was introduced to the Tasmanian House of Assembly by Attorney-General Vanessa Goodwin.[25] The bill would allow those who were convicted of homosexual sexual offences (prior to its decriminalisation in Tasmania in 1997) and cross-dressing (which was an offence under the Police Offences Act 1935, until being repealed in 2001) to apply to the Secretary for the Department of Justice, or have a person apply on their behalf if deceased, to have their conviction expunged.[26][27][28] The bill was debated in the Assembly on 13 April,[29] and was passed in the Assembly on 2 May 2017.[30][25] It then proceeded to the mostly independent Legislative Council for consideration, where a first reading was held on 19 May 2017.[25] The bill was debated in the council on 20 and 21 September 2017, passing the council on the latter date.[25][31] Several amendments designed to streamline procedures relating to applications, the treatment of sensitive data and the decision-making process were agreed to by the council.[31] The Assembly agreed to the council's amendments on 18 October 2017, and the bill became an Act of Parliament by royal assent on 21 November 2017.[32] The law went into effect on 9 April 2018.[33] Schemes of this nature exist in all other jurisdictions of Australia.

As of November 2020, a proposal to establish a compensation scheme for individuals convicted of same-sex sexual acitivty or cross dressing prior to 1997 and 2001 respectively is being drafted.[34][35][36]

On 13 April 2017, the Tasmanian Government, represented by Premier Will Hodgman, issued an official parliamentary apology to members of the LGBT community in Tasmania who had been historically affected by laws which criminalised homosexuality in the state until 1997. Hodgman stated that "it is [the government's] view that the broader Tasmanian community would believe that people should never have been charged or convicted in the first place, even if it was thought at the time it was the right thing to do, it was not".[37] Leader of the Opposition Rebecca White also issued an official apology, saying an apology was "long overdue" for the "terrible injustice done as a result of these laws". Cassy O'Connor, leader of the Greens, asked the LGBTI Tasmanian community "to forgive us for not holding you in our arms".[37][38]

Both same-sex and opposite-sex couples can register a significant relationship if both are unrelated, unmarried adults living in Tasmania. Tasmania introduced the scheme in 2003, becoming the first state in Australia to establish a relationship registration scheme that was open to all couples.[1]

Likewise, two adults residing in Tasmania, related or not, can register a caring relationship if one provides the other with domestic support and personal care. The parties cannot be married to each other, cannot be in an existing significant or caring relationship, and neither can be receiving payment for the care of the other either from employment or government departments.

Both types of relationships provide identical rights in the following areas:[43][44]

• Superannuation (pension/retirement benefits)
• Taxation
• Insurance
• Health care
• Hospital visitation
• Wills
• Property division
• Employment conditions (such as parenting and bereavement leave)

Couples entering into a significant or caring relationship must sign a Deed of Relationship document. This is registered with the Registrar of Births, Deaths and Marriages. The registry then issues a certificate of registration, which is evidence of a personal relationship (significant or caring). Consequently, the relationship will be legally recognised without having to satisfy any other criteria to prove its existence.[45] Upon entering into a Deed of Relationship, couples are allowed to have a state-sanctioned ceremony to celebrate their union.[46]

Since being elected in 2007, the then-Prime Minister, Kevin Rudd, had been encouraging all states to create relationship registers identical to Tasmania's model in order to create nationwide uniformity and consistent rights, while at the same time not supporting anything that appears too similar to marriage. The Australian Commonwealth Government also recognises a Tasmanian registered partnership as a "de facto relationship" under federal law. De facto couples, whether same-sex or opposite-sex, have been entitled to nearly all of the federal rights of marriage since 1 July 2009.

In September 2010, the Tasmanian Parliament passed legislation to recognise out-of-state same-sex unions as significant relationships.[39][40][41][42]

Same-sex marriage became legal in Tasmania, and in the rest of Australia, in December 2017, after the Federal Parliament passed a law legalising same-sex marriage.[47]

Prior to this, Tasmania did attempt to legalise same-sex marriage at a state-based level. In August 2012, Premier Lara Giddings announced that Tasmania would pass new laws allowing same-sex couples to marry.[48] However, although the same-sex marriage bill passed 13–11 in the lower house, the Legislative Council rejected the bill 6–8 on 27 September 2012.[49] In December 2013, the Australian Capital Territory's same-sex marriage legislation was declared unconstitutional by the High Court of Australia due to inconsistency with the federal Marriage Act 1961. This meant that the state parliaments did not have the legal capacity to legislate for same-sex marriage even if they wanted to.[50]

On 19 November 2015, the lower house of the Parliament of Tasmania passed a motion by a vote of 15–9, calling on the Federal Government to pass a same-sex marriage bill based on a conscience vote.[51][52][53][54] Both Western Australia and New South Wales also passed similar motions. On 9 August 2016, the Tasmanian upper house also passed a motion in favour of same-sex marriages.[55] The vote was 8–5.[56]

Motion wording:

1. Notes Members of the Tasmanian Legislative Assembly and community hold various views on the issue of marriage equality
2. Wishes our federal colleagues a respectful debate that is tolerant of all views
3. Notes the importance of MPs being free to express their own view and the views of their electorates on this issue

In July 2021, a lawsuit was filed in court to banning transgender individuals in biological female spaces within Tasmania - due to recent laws on birth certificates implemented in 2019.[69][70]