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Out Here: Gay and Lesbian Perspectives VI

Chapter 2

It’s Time:
The Duncan Case and the Decriminalisation of Homosexual Acts in South Australia, 1972

Clare Parker and Paul Sendziuk

On 10 May 1972, the body of Dr George Duncan was pulled from Adelaide’s River Torrens. Over the following months, the extensive media interest in the case, which appeared to revolve around the harassment of homosexual men by members of the police Vice Squad, prompted an open discussion of homosexuality never before seen in South Australia. Later that year, the State Government reformed the law regarding male homosexual acts between consenting adults in private, the first reform of its kind in Australia. In this chapter, we examine the circumstances surrounding the South Australian government’s reform in 1972. Although the legislation ultimately fell short of full decriminalisation, which would be achieved in 1975, this first reform marks an important turning-point. As well as tracing the key arguments in the debate about homosexuality that ensued following the media’s exposé of Duncan’s death, we consider the legacy of law reform in 1972 and contemplate why it happened first in South Australia.

There have been a small number of studies of homosexual law reform in South Australia. John Lee has written about male homosexual identity and subculture in pre-World War II Adelaide, and his analysis has been drawn upon and expanded by Chiah Mayne in a recent Honours thesis at the University of Adelaide.1 Tim Reeves’s research into the 1972 decriminalisation debate, including the impact of the Duncan case and the role of the Campaign Against Moral Persecution (CAMP), forms the basis of his Honours thesis at the University of Adelaide, and an essay in the second volume of the Gay and Lesbian Perspectives series.2 Reeves argues that the 1972 decriminalisation Bill was a ‘knee-jerk, libertarian reaction’ to the controversy surrounding Dr Duncan’s death, and as such was unlikely to pass without amendments that would render it impotent.3 In Reeves’ mind, the whirlwind of discussion about the Duncan case and the brief time that elapsed between Duncan’s death and the introduction of the Bill did not leave enough time for gay activists to ensure that parliamentarians and the community were sufficiently informed about homosexuality to intelligently debate and pass the Bill in its initial form. He suggests that ‘there was no real attempt to examine… the danger of discrimination at work’ and that ‘the whole social and cultural construction of homosexuality was never considered’,4 but the second of these assertions is contrary to our findings presented here. In a later edition of the Gay and Lesbian Perspectives series, Reeves and Malcolm Cowan discuss the law reform debates that occurred between 1972 and 1975, and the events of 1975, which resulted in the complete decriminalisation of homosexual acts between consenting adults. Their analysis draws upon Cowan’s Honours thesis on a similar topic.5 In this and the authors’ other publications, it is asserted that Dr Duncan’s death and the 1972 law reform ‘achieved little’,6 which, we suggest, is an overly pessimistic reading of the evidence. These articles and theses are the only specific discussions of the topic that we have encountered, but the South Australian experience is mentioned in a number of other works with a broader focus, such as Graham Willett’s Living Out Loud.7

Precursors to Reform

Male homosexual acts had always been illegal in South Australia. The law can be traced to the British Buggery Act of 1533,8 and underwent various changes in Britain and the British colonies over the following centuries. In South Australia, the death penalty for buggery was removed in 1859 (it had never been used), but the range of offences was increased. By 1876, the penalty for buggery in South Australia was anything from 10 years to life imprisonment with hard labour, and allowed for flogging. In 1925, the Criminal Law Consolidation Act was amended to state explicitly that homosexual acts ‘in public or private’ amounted to gross indecency. A further amendment in 1935 reduced the penalty to a maximum of 10 years’ imprisonment, with hard labour no longer compulsory.9 So, while penalties became less severe, the range and exact details of offences became greater. Chiah Mayne argues that this indicates a growing awareness of homosexuality as an identity, and more than just isolated incidences of men having sex with men.10

Life for homosexual men in Adelaide before World War II was generally similar to life in other Australian states. Beats were an important part of homosexual interactions, and included the Adelaide parklands, public toilets and, more discreetly, certain eating establishments around town. Police were aware of the major beats, and using them came with an ever-present threat of arrest. It also made homosexual men a target of violence from gangs of youths or vigilantes. The rate of prosecution was not high, and the most commonly reported crimes were sexual violence, indecent assault and rape, often – but not always – against children.11 Realistically, policing truly private and consensual homosexual acts was virtually impossible.

Apart from certain individual cases before the courts, homosexuality received very little public attention, and remained this way until the mid-1960s. Graham Willett notes that before that time, there was little coverage of homosexual issues in the media, in Parliament, or in medical, legal and religious journals. When it was discussed, ‘it was reviled and vilified’12 as something ‘dangerous and repulsive’.13 Censorship was rife in the era, and any material concerning depictions or discussions of homosexuality was silenced before it could reach an audience.14 However, later in the 1960s, public discussions of homosexuality began to emerge and became more positive.15

In 1954, the British Government commissioned a report into prostitution and male homosexual offences. Published in 1957 and generally known as the Wolfenden Report, it investigated thoroughly the current thinking on the nature, causes and effects of homosexuality, and recommended that the law be changed to decriminalise ‘homosexual behaviour between consenting adults in private’;16 a phrase later used in South Australia and elsewhere.17 This recommendation was adopted by Britain in 1967,18 and was to have a significant influence on Australian debates.

A notable feature of the British discussions was the firm stance taken by the Archbishop of Canterbury, who spoke in favour of decriminalisation.19 From the late 1960s, Australian churches began considering their own attitudes towards homosexuality. In 1968, the South Australian Methodist Conference issued a Report on Homosexuality, which was hesitant about recommending law reform: ‘[t]he Commission does not recommend a change in the law, although some changes appeared to all members to be necessary’.20

By 1972, however, the Conference had reached the opinion that the law should be changed, although the emphasis was on encouraging counselling for those with what it called ‘homosexual tendencies’.21 In 1971, the Anglican Diocese of Melbourne issued a report on homosexuality which recommended that the law be changed to make legal male homosexual acts committed in private.22 The Bishop of Adelaide initially disagreed with the recommendation,23 but less than six months later the Adelaide daily newspaper, the Advertiser, reported that he had changed his mind. The Catholic Archbishop and Executive Minister of the Congregational Union of South Australia agreed. All three made it plain that they regarded homosexuality as immoral and a sin, but that the law was not the best instrument to bring redemption.24

Some of the earliest exposure of the experiences of homosexuals was in the student press. One article, ‘The Homosexual Villain’, by an anonymous homosexual man, appeared in Monash University’s student paper Lot’s Wife in August 1964 and was reprinted in the University of Adelaide’s On Dit the following month.25 Four articles about various aspects of homosexuality appeared in On Dit in August 1969, written anonymously by members of the University of Adelaide community.26 They hoped to dispel ‘false taboos and fears’ and lead to a ‘clearheaded debate on such social reforms’.27 The Advertiser also began to run stories in the early 1970s about homosexual men and women.28 Nationally, the initiation of groups such as CAMP saw the publication of magazines dedicated to information and activism, but their readership was probably confined largely to the homosexual community.29

The social shift towards a willingness for the discussion of homosexuality was part of a wider phenomenon of what Willett terms a ‘new liberal current in Australian political culture and Australian political life’.30 This liberalness was particularly evident in South Australia, where a Labor government was elected to power in 1965 after 32 consecutive years of conservative rule. The ascension of Don Dunstan to Premier in 1967 began a period of ‘social democracy’ in South Australia which saw reforms on issues such as abortion, capital punishment, gambling, consumer protection, and equal opportunity laws. Given the extent of these social reforms, it is in some ways unsurprising that South Australia led the way on the decriminalisation of homosexuality. While Attorney-General in 1965, Dunstan had pushed to decriminalise homosexual acts between consenting adult males, but although it was supported by Cabinet, a Bill never reached Parliament due to the concern of several members of caucus. Dunstan recalls in his 1981 memoir that the Wolfenden Report had not received much coverage in South Australia, and that ‘the public “weren’t ready for it”’.31

Slippery Slopes and Strange Bedfellows: The 1972 Debate

Ready or not, the South Australian public quickly found themselves immersed in a vigorous debate on homosexuality in the winter of 1972. Reporting on the case of an initially unidentified man who had drowned in the River Torrens on the evening of 10 May began slowly, with small articles buried in the centre pages of the Advertiser.32 As more details emerged over the following weeks, the murder of University of Adelaide law lecturer Dr George Ian Ogilvy Duncan became front page headlines.33 It was alleged that members of the police Vice Squad had pushed Duncan into the river while indulging in ‘poofter-bashing’ – the area of riverbank where he died was a known beat.34 Despite this, four weeks passed before the word ‘homosexuality’ was first mentioned in the media in connection with the case.35

Discussion of the matter increased gradually, aided significantly by the Advertiser, which dedicated its editorial of 13 June to the Duncan inquest, and asserted that the case had ‘touched upon the broader issue of homosexuality and attitudes towards it in our society’.36 It identified the ‘unfortunate’ reticence of witnesses in the case to come forward as a symptom of the illegality of homosexual behaviour. It is from this point that the discussion of the decriminalisation of homosexuality began in earnest.

On 26 July 1972, the Liberal and Country League Member of the Legislative Council, Murray Hill, introduced a private member’s bill proposing the decriminalisation of homosexual acts between consenting adult males in private (hereafter referred to as the Bill), apparently prompted by a letter urging the relaxation of the law received by all South Australian politicians in late June from a group calling themselves the Moral Freedom Committee (MFC).37 This group had formed in response to the actions of the evangelical Moral Action Committee (MAC), of which psychologist Dr John Court and Rev. Lance Shilton were outspoken members. MAC railed against society’s ‘permissiveness’ and called for the censorship of ‘immoral’ material such as the theatrical release of Oh! Calcutta!, a production featuring full-frontal nudity and songs about masturbation.38 MAC ceased to function when members formed new groups such as the Community Standards Organisation and the Festival of Light, by which time the MFC had been provoked into action. The MFC was primarily composed of young, heterosexual, university-trained men and women, many of whom were active in the Humanist Society of South Australia (HSSA).39 It does not appear to have included homosexual members and was not a front for gay activists. The group was compelled to act by the controversy surrounding Dr Duncan’s murder, and the correspondence it issued specially mentioned the case and the unlikelihood of witnesses coming forward while the existing laws against homosexual acts remained in place. Murray Hill, Premier Dunstan, and at least five other Members of Parliament (MPs) directly pointed to the influence of the Duncan case in bringing the issue to light.40 The ensuing debate about Duncan’s murder and, as a consequence, the legitimacy of homosexuality and laws against homosexual acts, divided the community, and took place not only in Parliament, but also in the media and in key interest groups around the state.

Both the pro- and anti-decriminalisation camps put forward a number of arguments, and included among their ranks concerned members of the public, as well as academics, medical professionals, religious leaders, lobby groups, and the parliamentarians who would have the ultimate say. In Parliament, the issue was not argued along party lines. The matter was to be decided by a ‘free vote’41 which allowed debate according to the individual member’s conscience, the wishes of their own constituents, or a combination of the two. In the 1970s, as is the case today, conscience votes were allowed on controversial or religious-based issues where party-political stances were not considered appropriate. The debate largely focused on the relevance of religious (moral) traditions on the criminal law,42 and the possible danger of allowing homosexuality to become regarded as acceptable.

As proponent of the Bill, Hill spoke at length on the need for reform. His speech on 2 August included extensive reference to the Wolfenden Report and the subsequent British parliamentary debates. While he appeared to consider homosexuality as something of a pitiful ‘social problem’43 requiring treatment,44 he argued that the law was not the appropriate way to deal with the ‘psychological nature of homosexuality’,45 and that homosexuals were ‘law-abiding citizens in all other respects’ and ‘surely not criminals’.46 He was concerned that homosexuals were open to blackmail because of their reluctance to report matters to the police due to threat of their own prosecution.47

Hill and other MPs also addressed a number of the concerns raised by opponents to the reforms. Hill observed that ‘the only real opposition comes from those who deal solely with the religious viewpoint, and it comes from the extreme literalist group who provide judgmental attitudes, based upon Biblical passages’.48

These laws, he said, were made in Biblical times and did not reflect the current scientific understanding.49 Don Hopgood also refuted the extremist religious argument, pointing out that those who argued that the Bible condemned homosexual acts should also ‘require adultery, fornication and Lesbianism to be illegal in order to be consistent’.50 As these calls were not being made and would be ridiculed if they were, such Biblical arguments were not sound. Attorney-General Len King argued forcefully on a religious basis that he believed homosexual behaviour to be a ‘perverted activity’ and ‘intrinsically evil’,51 but went on to state: ‘what we are here concerned with as a Legislature is not precisely the moral question involved in homosexual conduct but what the state of the criminal law should be’.52 King’s attitude mirrored that of the religious leaders who believed that Biblical immorality could not necessarily be directly equated with modern law.

MPs also refuted other non-religious arguments. Referring to the experiences of Belgium and France where homosexuality was legal, Hill assured those concerned about an increase in the incidence of the practice that ‘the prevalence of homosexuality seems to be remarkably independent of the state of the law’,53 but did not cite any figures to support his claim. Dr Tonkin asserted that those who feared an increase failed to understand the true nature of homosexuality.54

In outright favour of the Bill, a number of members emphasised the unacceptable (and indeed impractical) nature of laws which intruded into individuals’ private affairs,55 and several highlighted the contradiction whereby male homosexual acts were illegal but female acts were not.56 Finally, two members stated their belief that the law should not punish people who had no control over their sexuality, thereby acknowledging the then current advances in the psychological understanding of homosexuality as being a matter not of choice but of intrinsic nature.57

A number of politicians mentioned in their speeches the quantity of correspondence from the public on the issue; several stated that they had received more on this Bill than on any other.58 Some claimed overwhelming support for the Bill, while one had received a more negative response.59 F.‌J.‌Potter explicitly stated the difficulty of determining true public opinion on the matter, 60 whereas Don Hopgood, despite believing that it was more important to be true to one’s own conscience than to bow to public pressure, cited several Australian media polls that pointed to a majority support for homosexual law reform.61 Hopgood also made an interesting observation about the support of the local media for the reforms: ‘generally speaking, the popular press is a little on the conservative side of what people in the community are thinking and, therefore, when we get a progressive statement from the press, we can usually assume there is a fair consensus in the community for it’.62

Hopgood’s remark on the conservative nature of the local media echoes a commonly held view; both Adelaide daily newspapers, the Advertiser and the News, were owned by the Murdoch family’s News Corporation, a media organisation that is frequently considered to have a conservative outlook.63

Support for the Bill was demonstrated in the pages of the print media, most notably in the Advertiser. Although there were numerous letters to the editor that spoke vehemently against the Bill (see discussion below), there were a number in support. The correspondents’ arguments followed a similar line to those covered in Parliament. Members of the South Australian branch of the Australian Psychological Society wrote of their belief that the legal status of homosexual acts was irrelevant to the successful treatment of such tendencies, and that many people were not coming forward to be treated because of concerns they would be prosecuted. Not only concerned with ‘cures’, they also wrote that ‘[p]unishment is likely to intensify the guilt and anxiety which are frequently experienced’ and that this caused ‘irreparable psychological damage’ – and made behaviour modification more difficult.64

Dr G. R. Knight and Stan Harris both wrote to the Advertiser with their criticisms of the extremist religious views propounded by other correspondents. Like Don Hopgood, Knight argued that ‘[s]elective quotation from Leviticus is not… any justification for the continued legal persecution of homosexuals’,65 while Harris undermined the legitimacy of the text by noting that Leviticus forbade blind or handicapped clergy, and called for death to those who did not observe the Sabbath, in addition to admonishing homosexuality.66 Knight also iterated Attorney-General King’s argument that ‘Old Testament fundamentalists are certainly entitled to express their views’ but that there was ‘no reason for accepting their views as the basis for law-making in a secular society’.67 Several days later, Linda Brabham presaged the argument of MPs Potter and Evans by condemning punishment of people who could not help their ‘condition’.68 Correspondent P. S. Delin went further than many and argued that homosexuality was not a problem at all. Expressing a common joke of the time, Delin suggested that what those against reform wanted was for the homosexuals to admit that homosexuality should be made not just legal, but compulsory.69

The Vice-President of the South Australian branch of homosexual group CAMP, and the respective Presidents of the HSSA and the South Australian Council for Civil Liberties also wrote in support of reform.70 This highlights the unusual alliance formed in support of the legislation. On the one hand, psychologists believed that decriminalisation would assist their ultimate aim: to cure homosexuality. On the other hand, activists and human rights groups argued that decriminalisation would be the first step in achieving equality for homosexuals to live their lives in peace. Although their ultimate aims were vastly divergent, decriminalisation was favoured by both groups.

On a numerical basis, one cannot conclude that supporters of the Bill were in the majority; however, the quantity and sophistication of arguments in favour were considerably greater than those against, which tended to focus on limited religious beliefs and a fear of social degeneration. It is notable, however, that although these views were promoted by members of the public, they did not gain significant traction in Parliament. Had they done so in such numbers, the Bill would not have passed. It is also important to note that a meaningful quantitative analysis of newspaper correspondents is notoriously difficult, as editorial decisions are made over what is published, and we can only trust that the printed letters were representative of the quantity and arguments of those that were not.

Similar (if less religious) arguments were raised in Parliament by a number of members who spoke against the Hill Bill. Their key fear was that decriminalisation would lead to an increase in the prevalence of homosexuality, and would be seen as condoning behaviour that was morally wrong. This view was espoused by A. M. Whyte, who said he feared ‘an acceptance of something I am not prepared to have publicly flaunted or publicly accepted’.71 R. C. DeGaris voiced concern about where such relaxation of the law might lead; would incest, for instance, become acceptable? And what of homosexual marriage?72 M. B. Dawkins and L. R. Hart also feared widespread acceptance, and believed decriminalisation could lead to young people becoming homosexual.73 Both compared homosexuality to the state’s recent debate on abortion, claiming that the legalisation of this practice had led to its increase and normalisation.74

Opinion pieces published by the Advertiser aimed either to inform the public on the nature of homosexuality (such as a three-part feature by John Miles on various aspects of the ‘Homosexual Scene in Adelaide’),75 or explicitly campaigned in favour of law reform. The paper’s editorial on 1 July 1972 was headed ‘Legalise Homosexuality’ – an unequivocal stance, largely based on the argument that the law had no right to intervene in the bedrooms of private citizens.76 However, the paper did publish many letters to the editor that argued forcefully against potential reform. John Court, lecturer in psychology at Flinders University, and member of the Christian lobby group Festival of Light, wrote a response to the editorial, arguing that it would be ‘Impossible!’ to legalise homosexuality. He suspected that such reform was the ‘first step to seeking acceptance of totally unrestricted homosexual practices and recognition that they are essentially normal’.77 Court was one of a small number who wrote in opposition to reform without explicitly referring to religious reasoning. Others to do so included P. P. Kelly, who believed that, like alcoholism, homosexuality was able to be controlled, and therefore did not require relaxation of the law;78 and Mark J. Posa, who was concerned that legalisation would lead to a general degeneration of society which could result in the acceptance of euthanasia.79

The remaining letters all advanced Christian viewpoints. Several quoted Biblical passages from Leviticus in which homosexual acts were described as ‘abomination’,80 and passages from the New Testament.81 Many more argued that God’s moral law should prevail. A typical example of this attitude was put forward by Anne E. Joyce, a mother fearing for her children’s future who wrote, ‘God, in his Holy Word, has set down moral rules for mankind, and if man deliberately and defiantly disobeys, then he will destroy himself’.82 Andrew McComb similarly advised that the Old Testament was relevant to the framing of modern laws, and warned that ‘civilisations which became permissive… frequently degenerated and disappeared from the historical scene’.83 Dorothy Storr could not bring herself to mention homosexuality, but referred to the ‘degrading laws set in our midst’, and implored readers to vote for leaders who could set a ‘clean Christian standard’.84 Reverend David L. White of the Seaton Park Baptist Church wrote twice, each time vociferously arguing that ‘Homosexuality is NOT normal!’,85 but a ‘perversion’ that should ‘NEVER!’ be legalised.86 He was concerned about a ‘moral landslide’,87 and urged the community to show compassion and provide assistance for ‘those homosexuals who earnestly want to be normal’.88 The religious arguments all relied on dramatic vocabulary, fear, and limited sections of Scripture to make their points. These opinions were advanced primarily by laity, and ministers of churches such as the Baptist Church. As mentioned, more liberal clergy voiced support for decriminalisation, even if their reasoning was aimed more towards healing the homosexual man than concern for his rights.

As with the groups who supported the reforms, an unusual alliance also emerged between the groups who opposed the 1972 Bill. On one side, there were those who opposed homosexual law reform altogether, usually on religious grounds, and argued that homosexuality was immoral and unnatural. A number of people took a less overtly religious argument, seeing law reform as the first step on a ‘slippery slope’ to a ‘permissive society’. These groups who opposed any reform at all were joined in opposition to this particular Bill by some gay activists. Knowing that the Bill was highly unlikely to pass in its entirety, Dennis Altman and Lex Watson spoke strongly against certain aspects of the proposed reform at the inaugural South Australian meeting of Gay Liberation in August 1972. They argued that it did not achieve sufficient reform, and advocated full legal equality for homosexuals. Altman described the Bill as ‘totally inadequate and probably even dangerous’.89 Thus, opposition to the Bill came from both those worried it went too far, and those concerned it did not go far enough.

Ultimately, opposition member Renfrey DeGaris moved an amendment to the Bill that undermined its original intent. The Bill passed with this amendment, which meant that being ‘consenting adults in private’ became nothing more than a defence for the charge of committing a homosexual act, only able to be pleaded before a court.90 In this case, should conditions of the law be met – namely that the two men be 21 years of age or over, alone, and the sex consensual – no conviction would be recorded. As we have demonstrated, this limited degree of law reform was supported largely because criminal sanctions seemed inappropriate; it did not indicate approval of homosexuality as a legitimate way of life. This was made quite plain by the major Christian denominations and those who echoed their arguments, and all who advocated treatment or cures for homosexuals. Thus, decriminalisation was far from complete in 1972 and did not afford homosexual men any increased privacy. It would take another three years to achieve full decriminalisation, which occurred in 1975 with a Bill introduced by Labor Attorney-General Peter Duncan.91

Nonetheless, the 1972 reform was an important first step. In 1965, Don Dunstan, then Attorney-General in the Walsh Labor Government, drafted a homosexual law reform Bill that was blocked by his party’s caucus due to concerns that it was against the wishes of the public. Education of the community was required, and the 1972 debate surrounding the mysterious death of Dr Duncan, the reasons for witnesses failing to appear, and the need for law reform, provided homosexual activists and sections of the media with opportunities to enlighten the public and community leaders. These events put the legal status of homosexuality firmly on the public agenda in South Australia, and the rest of the country followed. Those who fought for full decriminalisation later, and for law reform in other states, would have found it much more difficult if they had to work without precedent and without a raised level of public and media understanding of the issues.

The Legacy of Dr Duncan

The murder of Dr Duncan was the catalyst for the decriminalisation debate in 1972. However, as with all catalysts, it alone was not enough to bring about change. There had been a much longer process at work. The gradual post-war liberalisation of societal attitudes formed a foundation for reform. But, in South Australia, it was the political climate of Don Dunstan’s progressive Labor Government that made such a reform palatable in many sectors of the community. A combined effort by Dunstan and his predecessor, conservative Premier Steele Hall, had seen the groundbreaking legalisation of abortion only three years earlier, and so the state had already been challenged to consider its views on contentious moral issues. This followed nearly four decades of conservative party governance, dominated by Tom Playford’s period as Premier between 1938 and 1965. Others have argued that it was Playford’s paternalistic style and inertia on social matters that led to pent up frustration and the rush towards social law reform in the Dunstan era.92 This situation was unique to South Australia. One might contend that the other states in Australia lagged behind their southern counterpart because conservative parties still held sway there; the Country Party remained in power in Queensland from 1957 until 1989 (the reign of Premier Joh Bjelke-Petersen extended from 1968 to 1987), the Liberal Party governed in New South Wales between 1965 and 1976, and in Victoria from 1955 until 1982.93 This is not to suggest that it was inevitable that Liberal or Coalition Governments would fail to champion or achieve homosexual law reform in the 1960s and 1970s; there were certainly members of those governments whose primary agenda was to relax government and legal controls on individual freedoms and uphold one’s right to privacy, rather than defend conservative values on social issues. (The decriminalisation of private homosexual acts occurred in Victoria under a Liberal Government in 1980, although nine Liberal MPs crossed the floor to vote against the proposal while Labor MPs voted as a block in favour.)94 But small ‘l’ liberals in Liberal and Coalition Governments were generally not willing to alienate the people who elected them or trade the potential gains they could make in other areas by furthering the rights of gays and lesbians. Instead, as Shane Ostenfeld has argued, the trade union movement (which provided the support base of the state-based Labor parties, as well as many of their candidates), proved most responsive to the needs of gays and lesbians, initially supporting their fight against discrimination in the workplace and then embracing other issues. White-collar and left-wing unions were most active in this respect, while opposition within the labour movement was mounted by Catholic unionists and ‘masculinist’ right-wing unions.95 In comparison to the situation in the other states, the South Australian Branch of the Labor Party was more disposed to championing the rights of homosexuals because white-collar and left-leaning public sector unions held sway and Catholic elements within the trade unions and the Labor Party were muted.96 Indeed, without convicts and lacking a mass migration of poor Irish Catholics in the nineteenth and early twentieth centuries, South Australia has always had a proportionally smaller working-class Catholic population than most of the other states, and this affected the number of Catholics and their influence in trade unions and the South Australian Branch of the Labor Party. Although the law reform vote in South Australia’s Parliament in 1972 and then in 1975 was supposed to be one based on ‘conscience’ rather than dictated by party policy, pressure was brought to bear on Labor MPs to make sure they voted for the decriminalisation bills. Gay activist Roger Knight recalls the final vote for Peter Duncan’s homosexual decriminalisation Bill in 1975 and watching Tom Casey, the Labor Minister for Agriculture and a staunch country Catholic who had previously voted against the proposal, be brought into line:

A message came into the House and indicated to Casey that someone was wanting to talk to him… [Deputy Premier] Des Corcoran, out in the corridor… must have had a few words to say about sticking with Peter’s Bill and voting with the Party… Casey came back looking absolutely like thunder… When it came to the division, instead of crossing [the floor to vote against the Bill], he just continued to sit there, looking like thunder, but staying with the Labor Party… It was supposed to be a free vote, it was a conscience vote, a private member’s Bill, not a Government Bill, but it was quite obvious that the Labor Party voted for it.97

In both 1972 and 1975, South Australian Labor MPs voted in favour of the decriminalisation of homosexual acts. It was members of Murray Hill’s party that insisted upon amendments and, having far superior numbers in the Legislative Council in 1972, were able to alter the Bill beyond recognition. Complete decriminalisation was achieved in 1975 once the effects of electoral reform were felt and the Labor Party secured greater numbers in the Upper House.

A further case for South Australian exceptionalism can be made in that the push for homosexual law reform did not emerge from a prior campaign for the introduction of sexuality-based anti-discrimination legislation. Former members of CAMP (SA) and other gay activists at the time are certain about this. Discrimination in the workplace became a primary issue for gay and lesbian activists in other states and this saw their involvement with the labour movement and open engagement with parliamentarians; in states such as New South Wales the campaign against discrimination offered a pathway to homosexual law reform.98 While this issue was certainly a concern for homosexuals in the southern state, law reform in South Australia predated the push for the introduction of sexuality-based anti-discrimination legislation. It was the controversy surrounding the murder of Dr Duncan that really galvanised the alliance between activists, civil libertarians, select politicians and the labour movement, and which was the principal precursor to law reform. Over the next 25 years, the case would be evoked by gay activists throughout the country and Dr Duncan’s name would appear at the head of petitions, on protest banners and badges (‘HOW MANY MORE DUNCANS?’), and as graffiti on walls (‘DUNCAN IS DEAD – WHY?’),99 all testament to the importance and ramifications of a terrible event that took place by the banks of the River Torrens in Adelaide in 1972.

Endnotes - Chapter 2

1 John Lee, ‘Male Homosexual Identity and Subculture in Adelaide Before World War II’, in Robert Aldrich and Garry Wotherspoon, eds, Gay Perspectives: Essays in Australian Gay Culture, Sydney: Department of Economic History, University of Sydney, 1992, pp. 95–112; Chiah Mayne, The Nature of Male Homosexual Interactions in Adelaide before 1945, BA (Hons) Thesis, University of Adelaide, 2007.

2 Tim Reeves, Poofters, Pansies and Perverts: 1972 Debate on Homosexuality in South Australia, BA (Hons) Thesis, University of Adelaide, 1992; Tim Reeves, ‘The 1972 Debate on Male Homosexuality in South Australia’, in Robert Aldrich, ed., Gay Perspectives II: More Essays in Australian Gay Culture, Sydney: Department of Economic History with the Australian Centre for Gay and Lesbian Research, University of Sydney, 1994, pp. 149–192.

3 Reeves, Poofters, Pansies and Perverts, p. 12.

4 ibid.

5 Malcolm Cowan and Tim Reeves, ‘The “Gay Rights” Movement and the Decriminalisation Debate in South Australia, 1973–75’, in Robert Aldrich and Garry Wotherspoon, eds, Gay and Lesbian Perspectives IV: Studies in Australian Culture, Sydney: Department of Economic History and Australian Centre for Lesbian and Gay Research, University of Sydney, 1998, pp. 164–193; Malcolm Cowan, The Decriminalisation of Homosexuality in South Australia, 1972–1975, BA (Hons) Thesis, University of Adelaide, 1991.

6 Cowan, The Decriminalisation of Homosexuality in South Australia, pp. 79, 127; Reeves, Poofters, Pansies and Perverts, p. 68; and, Reeves, ‘The 1972 Debate on Male Homosexuality in South Australia’, pp. 178–179.

7 Graham Willett, Living Out Loud: A History of Gay and Lesbian Activism in Australia, Sydney: Allen and Unwin, 2000.

8 25 Hen VIII c.6 (The Punishment of the Vice of Buggery, 1533).

9 An Act for consolidating the Statute Law in force in South Australia relating to Indictable Offences against the Person, 1859, s42; Criminal Law Consolidation Act, 1876, (SA), s71–72, 166; Criminal Law Amendment Act, 1925, (SA), ss5, 15; Criminal Law Consolidation Act, 1935, (SA), s69–71.

10 Mayne, The Nature of Male Homosexual Interactions in Adelaide before 1945, p. 56.

11 ibid., pp. 31–49; Lee, ‘Male Homosexual Identity and Subculture’, pp. 100–101.

12 Graham Willett, ‘The Origins of Homosexual Politics in Australia’, in David L. Phillips and Graham Willett, eds, Australia’s Homosexual Histories: Gay and Lesbian Perspectives V, Sydney: Australian Centre for Lesbian and Gay Research and the Australian Lesbian and Gay Archives, 2000, p. 68.

13 ibid., p. 70.

14 See, for instance, John Tasker, ‘Censorship in the Theatre’, in Geoffrey Dutton and Max Harris, eds, Australia’s Censorship Crisis, Melbourne: Sun Books, 1970, pp. 44, 50–51. See also, Willett, Living Out Loud, p. 13.

15 Willett, ‘The Origins of Homosexual Politics in Australia’, pp. 68–70.

16 Wolfenden et al., Report of the Committee on Homosexual Offences and Prostitution, London: Her Majesty’s Stationery Office, 1957, p. 25.

17 Willett, ‘The Origins of Homosexual Politics in Australia’, p. 73.

18 ibid., p. 28.

19 See, speech given by Murray Hill, South Australian Parliamentary Debates (SAPD), Legislative Council, 2 August 1972, pp. 469–470.

20 The Methodist Church of Australasia, Minutes of the 67th South Australian Conference, Adelaide, October 1968, p. 134, cited in Malcolm Cowan, ‘“Knowing” Sodom? Australian Churches and Homosexuality’, in Garry Wotherspoon, ed., Gay and Lesbian Perspectives III: Essays in Australian Culture, Sydney: University of Sydney, 1996, p. 213.

21 Arnold D. Hunt, This Side of Heaven: A History of Methodism in South Australia, Adelaide: Lutheran Publishing House, 1986, p. 399.

22 Diocese of Melbourne Social Questions Committee, Report on Homosexuality 1971, Melbourne: Exacto Press, 1971, pp. 14–15.

23 ‘Bishop Disagrees with Vic. Synod’, Advertiser, 13 October 1971, p. 10.

24 ‘Prison No Solution, say Clerics’, Advertiser, 17 February 1972, p. 20.

25 Anonymous, ‘The Homosexual Villain’, Lot’s Wife, 27 August 1964, reproduced in On Dit, 25 September 1964, p. 8. See also, Willett, ‘The Origins of Homosexual Politics in Australia’, p. 72.

26 ‘Four Essays Upon Aspects of Homosexuality’, On Dit, 5 August 1969, pp. 5–6, 11–12.

27 ibid., p. 5. Graham Willett suggests that the student press was at least somewhat representative of its readership, citing a sizeable 1968 Melbourne University survey which revealed 66% support for the legalisation of homosexuality. See Willett, ‘The Origins of Homosexual Politics in Australia’, pp. 72–73.

28 For instance, Shirley Despoja, ‘What’s it Like… Being a Homosexual?’, Advertiser, 12 May 1971, p. 30.

29 See, editions of Camp Ink, CAMP’s official magazine. An early feature article, Australian Attiudes [sic] Towards Abortion, Prostitution and Homosexuality by P. R. Wilson and D. Chappell was contained in vol. 1, no. 4 (February 1971), pp. 4–8.

30 Willett, ‘The Origins of Homosexual Politics in Australia’, p. 71.

31 Don Dunstan, Felicia: The Political Memoirs of Don Dunstan, Melbourne: Macmillan, 1981, pp. 126–127. See also, speech by Dunstan, SAPD, House of Assembly, 18 October 1972, p. 2205.

32 ‘Car Keys Clue to Body in River’, Advertiser, 12 May 1972, p. 9; ‘Lecturer’s Body in River’, Advertiser, 13 May 1972, p. 4.

33 Bob Whitington, ‘Police Questioned on River Death’, Advertiser, 20 May 1972, p. 1.

34 ‘Government Calls for Facts on Duncan Case’, Advertiser, 2 June 1972, p. 1.

35 Bob Whitington, ‘Shock Evidence in Report to Inquest’, Advertiser, 5 June 1972, p. 1.

36 ‘The Duncan Inquest’, Advertiser, 13 June 1972, p. 5.

37 SAPD, Legislative Council, 2 August 1972, p. 464. See also, ‘Legal Homosexuality Wanted’, Advertiser, 23 June 1972, p. 6. There has been speculation that Hill was motivated by more personal reasons – a gay family member or friend – for introducing the Bill, however, this cannot been confirmed. Hill certainly was not a typical Liberal and Country League politician. He had belonged to the reformist wing of Steel Hall’s LCL government (1968–1970) and throughout his tenure in Parliament sought to protect individual privacy and freedoms in the tradition of classic liberalism.

38 Lance Shilton edited a book titled No, No Calcuttta [Adelaide: Brolga Books, c.1971] which encapsulates the group’s fears and what it sought to overcome. See also, John H. Court’s books, Changing Community Standards, Adelaide: Lutheran Publishing House, 1972; The Permissive Society, Adelaide: Trinity Publishing Society, c.1972; and, Law, Light and Liberty, Adelaide: Lutheran Publishing House, 1975. For further information about the Moral Action Committee and its later incantation, see, David Hilliard and John Warhurst, ‘Festival of Light’, Current Affairs Bulletin, vol. 50, no. 9 (February 1974), pp. 13–19.

39 David Hilliard, personal correspondence, 26 July 2010.

40 SAPD, Legislative Council and House of Assembly, August and October 1972. Hill (p. 464), Dunstan (p. 2205), Springett (p. 788), Hart (p. 1800), Tonkin (p. 2193), Hopgood (p. 2200) and Millhouse (p. 2204).

41 Alan Wheat, ‘Homosexuals: “Free vote”’, Advertiser, 8 July 1972, p. 3.

42 See, Reeves, ‘The 1972 Debate on Male Homosexuality in South Australia’, pp. 150–151.

43 M. Hill, SAPD, Legislative Council, 2 August 1972, p. 472.

44 ibid., pp. 464, 473.

45 ibid., p. 464.

46 ibid., p. 472.

47 ibid., p. 466.

48 ibid., p. 471.

49 ibid.

50 D. J. Hopgood, SAPD, House of Assembly, 18 October 1972, pp. 2201–2202.

51 L. King, SAPD, House of Assembly, 18 October 1972, p. 2213.

52 ibid.

53 M. Hill, SAPD, Legislative Council, 11 October 1972, p. 1951.

54 Dr Tonkin, SAPD, House of Assembly, 18 October 1972, p. 2193.

55 F. J. Potter, SAPD, Legislative Council, 16 August 1972, p. 790; S. G. Evans, SAPD, House of Assembly, 18 October 1972, p. 2212; L. King, SAPD, House of Assembly, 18 October 1972, pp. 2214–2215.

56 V. G. Springett, SAPD, Legislative Council, 16 August 1972, p. 787; D. J. Hopgood, SAPD, House of Assembly, 18 October 1972, p. 2201; S. G. Evans, SAPD, House of Assembly, 18 October 1972, p. 2211. Dunstan went further and noted that even if it were passed, the law would still be inconsistent, as anal intercourse would be legal between consenting men, but not for a heterosexual couple. He introduced an amendment to rectify this inconsistency. D. A. Dunstan, SAPD, House of Assembly, 18 October 1972, p. 2207.

57 F. J. Potter, SAPD, Legislative Council, 16 August 1972, p. 90; S. G. Evans, SAPD, House of Assembly, 18 October 1972, p. 2212.

58 D. H. L. Banfield, SAPD, Legislative Council, 13 September 1972, p. 1256; L. R. Hart, SAPD, Legislative Council, 4 October 1972, p. 1799; M. Hill, SAPD, Legislative Council, 11 October 1972, p. 1954.

59 SAPD, Legislative Council. F. J. Potter (p. 791), R. C. DeGaris (p. 1078), and D. H. L. Banfield (p. 1256) received more in favour; A. M. Whyte (p. 939) reported an overwhelmingly negative response from his constituents.

60 F. J. Potter, SAPD, Legislative Council, 16 August 1972, p. 791.

61 D. J. Hopgood, SAPD, House of Assembly, 18 October 1972, p. 2200. Both a Melbourne and Sydney poll by Wilson and Chappel, and an ACT poll, indicated that about 62% of people supported homosexual law reform. A 1971 poll in the Age indicated that a majority of people felt that homosexuals were not a threat.

62 D. J. Hopgood, SAPD, House of Assembly, 18 October 1972, p. 2200. Editorials such as that in the Advertiser on 1 July, p. 5, point to this media support (see below).

63 Richard Belfield et al., Murdoch: The Decline of an Empire, London: Macdonald, 1991; Denis Cryle, Murdoch’s Flagship: The First Twenty-Five Years of the Australian Newspaper, Melbourne: Melbourne University Publishing, 2008.

64 A. E. Whitford (Chairman) et al. of SA branch of the Australian Psychological Society, on behalf of all the committee. ‘Homosexuality “Not Concern of Law”’, letter to the editor, Advertiser, 18 July 1972, p. 5. Like Murray Hill, the psychologists believed in the importance of successful treatment as one of the key reasons for decriminalisation. Most of those cited who made these arguments also acknowledged that such treatments should be voluntary and were not always appropriate.

65 Dr G. R. Knight, ‘Bible and the Law’, letter to the editor, Advertiser, 18 July 1972, p. 5.

66 Stan Harris, ‘Law from Scripture’, letter to the editor, Advertiser, 19 July 1972, p. 5.

67 Knight, ‘Bible and the Law’, letter to the editor.

68 Linda Brabham, ‘Own Road to Hell’, letter to the editor, Advertiser, 25 July 1972, p. 5.

69 P. S. Delin, ‘Attitude Queried’, letter to the editor, Advertiser, 5 July 1972, p. 5.

70 Duncan Hartshorne, Vice-President, CAMP, SA Branch, ‘Support Pledged’, letter to the editor, Advertiser, 5 July 1972, p. 5; John Chandler, President, Humanist Society of SA, ‘Law and Morals’, letter to the editor, Advertiser, 5 July 1972, p. 5; W. B. Fisse, President, SA Council for Civil Liberties, ‘Reformed Law’, letter to the editor, Advertiser, 6 July 1972, p. 5. The SA branch of CAMP took an active role in petitioning Members of Parliament and clergy. See their magazine, Canary, vol. 1, no. 2 (October 1972), pp. 8–11.

71 A. M. Whyte, SAPD, Legislative Council, 23 August 1972, p. 940.

72 R. C. DeGaris, SAPD, Legislative Council, 30 August 1972, pp. 1077–1078.

73 M. B. Dawkins, SAPD, Legislative Council, 3 September 1972, pp. 1253–1254; L. R. Hart, SAPD, Legislative Council, 4 October 1972, p. 1799.

74 ibid., pp. 1254–1255; A. M. Whyte, SAPD, Legislative Council, 23 August 1972, p.‌940.

75 John Miles, ‘Homosexual Scene in Adelaide: Lively Talkers, Stylish Dressers’, Advertiser, 22 June 1972, p. 5; ‘Homosexual Scene in Adelaide: When Police Will Act’, Advertiser, 23 June 1972, p. 4; ‘Homosexual Scene in Adelaide: Two Main Types’, Advertiser, 24 June 1972, p. 4.

76 ‘Legalise Homosexuality’, Advertiser, 1 July 1972, p. 5.

77 J. H. Court, ‘A First Step?’, letter to the editor, Advertiser, 3 July 1972, p. 5.

78 P. P. Kelly, ‘Reform of Law’, letter to the editor, Advertiser, 10 July 1972, p. 5.

79 Mark J. Posa, ‘No Change in Values’, letter to the editor, Advertiser, 6 July 1972, p. 5.

80 J. N. Collins, ‘Bible Verse’, letter to the editor, Advertiser, 6 July 1972, p. 5; Rev. David L. White, Seaton Park Baptist Church, ‘Moral Landslide’, letter to the editor, Advertiser, 15 July 1972, p. 5. The passages quoted from Leviticus are 18:22 (‘Thou shalt not lie with mankind, as with womankind: it is abomination’) and 20:13 (‘If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death; their blood shall be upon them’). The Holy Bible, King James Version, Oxford: Oxford University Press.

81 Grace Magarey, letter to the editor, Advertiser, 21 July 1972, p. 5; Rev. David L. White, Seaton Park Baptist Church, ‘The Bible and the Homosexual’, letter to the editor, Advertiser, 22 July 1972, p. 5; W. J. Meath, ‘Religious Views’, letter to the editor, Advertiser, 4 August 1972, p. 5.

82 Anne E. Joyce, ‘Mother’s Fears’, letter to the editor, Advertiser, 11 July 1972, p. 5.

83 Andrew McComb, ‘Law from the Bible’, letter to the editor, Advertiser, 21 July 1972, p.‌5.

84 Dorothy Storr, ‘Christian Values’, letter to the editor, Advertiser, 20 July 1972, p. 5.

85 White, ‘Moral Landslide’.

86 White, ‘The Bible and the Homosexual’.

87 White, ‘Moral Landslide’.

88 White, ‘The Bible and the Homosexual’.

89 ‘“Gay Lib.” Slates Bill’, Advertiser, 24 August 1972, p. 9.

90 SAPD, Legislative Council, 11 October 1972, pp. 1956, 1960.

91 See, introduction of the Criminal Law (Sexual Offences) Amendment Bill, SAPD, House of Assembly, 27 August 1975.

92 See, for example, various essays in, Andrew Parkin and Allan Patience, eds, The Dunstan Decade: Social Democracy at the State Level, Melbourne: Longman Cheshire, 1981.

93 The Liberal Party was in government in Western Australia between 1953 and 1983 bar three years in the 1970s. Tasmania was the exception to the rule, as Labor held power for the majority of the post-World War II period. Yet the Tasmanian Branch of the Labor Party followed a relatively conservative agenda, especially in terms of social policy. It became the last of the Australian states to decriminalise private homosexual acts in 1997.

94 See, Shane Ostenfeld, ‘Sexual Identity and the Australian Labor Movement in Historical Perspective’, in Gerald Hunt, ed., Laboring for Rights: Unions and Sexual Diversity Across Nations, Philadelphia: Temple University Press, 1999, pp. 179–180.

95 ibid., pp. 157–160.

96 ibid., p. 175.

97 Roger Knight and David Hilliard, ‘20 Years On, 1975–1995: The Campaign that Led to the Passing of Homosexual Law Reform Legislation in South Australia in 1975’, cited in Dino Hodge, ‘The Okayness of Gayness: Don Dunstan’s Record in Homosexual Law Reform’, in this volume.

98 See, Ostenfeld, ‘Sexual Identity and the Australian Labor Movement’, pp. 157–190.

99 For further discussion of the way in which Dr Duncan has been memorialised and the case used to propel activism, see Reeves, Poofters, Pansies and Perverts, pp. 9–11.

Cite this chapter as: Parker, Clare; Sendziuk, Paul. 2011. ‘“It's Time”: The Duncan Case and the Decriminalisation of Homosexual Acts in South Australia, 1972’, in Out Here: Gay and Lesbian Perspectives VI, edited by Smaal, Yorick; Willett, Graham. Melbourne: Monash University Publishing. pp. 17–35.

Out Here: Gay and Lesbian Perspectives VI

   by Yorick Smaal, Graham Willett