That in the opinion of this House homosexual acts between consenting adults in private should not be subject to the criminal law.This is one of those rare occasions - those all too rare occasions - when the Parliament can act as it was originally theoretically intended to act; that is, to act as a collection of men, representing sections of the community, able to listen to a case and to make up their minds as to what is right without the constraints of party or of faction. The proposition which is before you, Mr Speaker, is that we should say that homosex- ual acts between consenting adults in private should not be punishable by the criminal law. The operative words which we all should have clearly in mind are 'consenting, 'adults' and 'in private'.
...We are concerned with one question and one question only. That question is, I repeat: Should homosexual individuals who are adults, who both wish a homosexual relationship with each other, who do not flaunt it but who act in private, withdrawn from the public gaze, be dubbed criminals and be subject to punishment by the criminal law? I suggest to the House that they should not be treated in that way.
If the House agrees with such a suggestion, it is in no way approving homosexual acts; it is in no way condoning homosexual acts. It is merely asserting that such acts under such conditions ought not to be subject to prosecution and long terms of imprisonment. I have noted a number of arguments which have been advanced against the proposition which I have put before the House. I think the House should have these propositions against my ideas put before it and should judge those propositions and the answers which I suggest can properly be made to them. In the first place I have been informed that in moving such a motion or in suggesting such a course of action I am acting contrary to God's law. I do not know that I am qualified to interpret Gods law. I have no hot line to the Almighty but I do know what those who are spokesmen for the relevant churches and the major churches in England and Australia - who presumably are interpreters of God's law have to say on this matter. The original Wolfenden Committee in the United Kingdom - The United Kingdom Parliament passed a resolution such as I want this House to pass - was advised from the Roman Catholic Church, by a body set up under Cardinal Griffin, in full agreement with the Wolfenden Committee's Report, that what I suggest this House should do should be done.
...I have heard it advanced as a suggestion why this should not be done that there will be an upsurge in homosexual activity if this resolution is accepted and translated into law. Country after country in Europe - country after country throughout the world - has changed its laws from those which used to apply 600 years ago, as these laws used to, and there is no evidence from any one of those countries that there was any upsurge in homosexual activity as a result. There being people who are strongly opposed to this suggestion, that evidence would have been forthcoming if that evidence had been in existence. We have been told that this has been a law for 600 years, and indeed it has. It used to be subject to death in early Britain. As late as 1861 in Britain the law made it not only a punishable offence - a gaolable offence - but laid down that the minimum term of imprisonment for it must be ten years. Because a law has been in existence 300, 400 or 500 years, is anybody to argue that therefore that is necessarily a good law? If it was we would still be hanging people for sheep stealing or transporting them for stealing a silk handkerchief.
...It has been suggested that personal abhorrence can persuade many people to object to passing such a resolution - that because a person himself shrinks almost in horror from the concept of a homosexual relationship applying to himself; that because he finds it disgusting, therefore it is reasonable to punish it by civil law. I call to my assistance on this argument words which were used in the House of Lords debate and which are much better and much more cogent than words I could use myself. The words are these:
But surely no one sincerely believes that everything which he personally feels to be unpleasant or disgusting should for that reason be a crime. The fundamental point at issue here is not whether we can or cannot stomach the thought of this or that type of sexual behaviour; it is whether or not we believe that true morality end the best way of cultivating personal responsibility is to be found through freedom or through compulsion, and whether or not we believe that the present law on this subject does more harm than good.According to those who have carefully gone into this matter, including representatives of the churches, it does do more harm than good. We have always been careful over the years to get rid of the confusion between the ecclesiastical idea of what is sin and the State's idea of what is a crime. Lord Goddard said:
We must draw distinction between conduct which. may be held by some to be sinful and conduct which ought to be held by the State to be criminal.That is the distinction which I seek to draw now. There is one other argument that has been advanced and that is: Why change the law? It is not usually applied. It is only infrequently applied. Therefore, leave it as it is. I would regard that argument as immoral and indeed as a completely wrong argument from the point of view of any member of Parliament. It is immoral because it seeks to shelve the question and to say: A man is subject to this sort of threat but the threat is rarely carried out so I can salve my conscience by just letting it go because rarely is the threat carried out. But it is wrong from the point of view of a Parliament or anybody with a vestige of interest in the legal position because it is clear that a bad law is a law which is not applied, which has fallen into desuetude. A bad law is a law which is not applied.
The third point to which I would draw Your Lordships notice - and it is an argument which seems to me to be quite irrational - is that based on the revulsion which people feel at the behaviour of the homosexual. Many who want the law changed share this revulsion.
...Having dealt with the reasons that have been advanced against this proposition I now want to deal with the reasons for it.
First, I believe that it is unjust and wrong to dub as criminals people who in some way are built differently from ourselves, who may not be able to help them- selves, who in many cases I believe live lives of desperation and pain because of the way in which they were constructed.
...And sometimes committing suicide because of it. It is wrong and unjust in my opinion to impose on top of that the threat of gaol, the threat of being dubbed a criminal.
...Basically, this is a matter for each individual. It is not a matter to be decided on emotion; it is a matter to be decided on justice. It is a matter which, in the ultimate, is what this Parliament is all about because every action we take, however important in the national field, has one ultimate justification - the welfare of the individual citizen of Australia. This is what we all want and this is an occasion on which we can make up our minds and cast our judgments as to whether, because something has continued for a long time, it should continue still; as to whether unfortunate people should have their lot made yet more unfortunate, as to who would be hurt or harmed by private actions. Let us put out of our minds what sometimes is in mine - the thought of people walking hand in hand down the street or with their arms around each other or in other ways acting in ways which we find objectionable. Let us think instead of the thousands of men who are not like that, who could not be discovered in an ordinary glance at the population, who hurt no one, harm no one and yet have this hanging over them.
Commonwealth Parliamentary Debate: House of Representatives 18 October 1973