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Out Here: Gay and Lesbian Perspectives VI

Chapter 3

The Okayness of Gayness:
Don Dunstan’s Record in Homosexual Law Reform

Dino Hodge

The first attempt at homosexual law reform to be introduced into an Australian Parliament was tabled as a private member’s bill in South Australia. It was prompted by the murder of Dr George Duncan. In the historical record, however, a sense of confusion and a silencing of details has emerged around the work and efforts of South Australia’s decriminalisation of homosexuality.

Late in the evening of 10 May 1972, university law lecturer Dr Duncan and two others were attacked and thrown into Adelaide’s River Torrens. Duncan drowned.1 Don Dunstan, then South Australian Premier, reveals in his memoirs, ‘[t]‌he area, apparently, was known to be frequented by homosexuals, and also those who regarded “poofter bashing” as a sport’.2

Although the Police Commissioner denied police involvement, reports implicating the force soon emerged. Two constables refused to answer questions at the inquest on 29 June on the grounds that they could be incriminated. The following day the two constables and a senior constable were suspended from the force. One officer resigned immediately, and the other two resigned soon after.3

This brutal murder, reports journalist Stewart Cockburn, shocked the South Australian community ‘into an ashamed realisation of the extent to which homosexuals were being threatened and persecuted’.4 Unexpectedly an Upper House member of the conservative Liberal and Country League party, Murray Hill, announced his intention to introduce a private member’s bill. The intention was limited in scope ‘to protect the privacy only of those people who lived together’ and would not legalise homosexuality outside of the home or provide protection against discrimination or vilification.5

Following intense debate both in Parliament and the media, the Hill Bill was enacted on 25 October 1972 with drastic amendments.6 The new law retained the illegality of homosexual acts, but allowed a defence if a person could show that the act was committed in private with only one other person and that both people were over 21 years of age.7 Don Dunstan opposed these limitations, and recalls that a ‘majority in both houses voted for that Bill though attempts by me and others to put in amendments to improve it were lost’.8 Dunstan considered the eventuating legislation as only a beginning of necessary reform.9

The state election in March 1973 saw the inclusion to the Australian Labor Party (ALP) backbench of Peter Duncan. He had studied law in Adelaide during the late 1960s when academic legal circles discussed homosexual law reform as a civil rights issue.10 Duncan announced his intention to draft a private member’s bill and introduced his bill for the full decriminalisation of homosexuality into the House of Assembly in September that year.11

Lobby groups quickly established contact with Duncan, including representatives of the Gay Activists’ Alliance (GAA) and the Campaign Against Moral Persecution (CAMP).12 The Council for Civil Liberties (CCL) was lobbying Duncan and providing him with legal opinion.13 Duncan’s bill established a more equitable code of sexual behaviour regardless of sexual orientation and a standard age of consent of 17 years, but it was rejected following the public debate over untimely suggestions by the more radical GAA who proposed talks on homosexuality to senior school students.14

Further to another state election in 1975, Duncan re-introduced the bill, which was passed on 17 September 1975, making South Australia the first jurisdiction to decriminalise male homosexual acts.15 Both bills in 1973 and 1975 received only lukewarm support in the Caucus, explains political scientist Allan Patience. He concludes that the ‘Dunstan Cabinet’s support for these measures prevailed and their incorporation into the criminal law statutes was a triumph for progressive social reform’.16

Difficulties Recalling Dunstan’s Achievements

Justice of the High Court, the Hon. Michael Kirby, delivering the lecture Consensus and Dissent in Australia in 2007, declared that, ‘Don Dunstan began our national process to remove the criminal laws against homosexual men’, but gives no further details.17

Dunstan died in 1999. His record in homosexual law reform was not cited either in the official memorial service commemorating and celebrating his life and work, or in a tribute special edition of the Labor Herald published for the occasion.18 There is an antecedent to this circumstance, as homosexual law reform was not discussed in the 1981 survey of the Dunstan governments’ record in law reform.19

Dunstan is regarded as one of Australia’s great innovative and reformist premiers, and the memorial service was designed to acknowledge his achievements. Copies of the Labor Herald tribute were issued to mourners at the Festival Theatre, and contained testimonies by two former prime ministers and two former premiers, as well as by leading political, community and cultural figures.

During the service Dunstan’s achievements were recounted. He reformed not only his own party – he played a central role in removing the federal ALP’s White Australia policy and was a long-standing member of the federal executive – but the state’s electoral system, too, ending decades of a severe gerrymander.

Dunstan was an early advocate of multiculturalism, introduced the country’s first Aboriginal lands rights reforms, abolished capital punishment, established anti-discrimination and equal opportunity measures designed to eliminate racism and sexism, nurtured industrial democracy, initiated consumer rights protection in Australia, and reinvigorated the arts and hospitality industries. Much of his work was ground-breaking, providing models for other Australian jurisdictions, politicians and political parties, and garnering international recognition. The Labor Herald testimonies widely reflect upon Dunstan’s deep concerns about civil liberties. However, the one achievement not recognised is that of homosexual law reform.

Following the service, journalist Samela Harris lamented this oversight, as well as the failure to welcome to the memorial service Dunstan’s male partner of more than a decade.20 Academic Barbara Baird has also observed that a welcome was extended to the many groups present but not to the gay, lesbian and HIV/AIDS communities. She notes that:

Dunstan’s commitment to the gay and lesbian and HIV/AIDS community politics among the ‘causes’ to which he was dedicated was another erasure. But most cruelly, and finally in the order of proceedings, was the omission of the name of Dunstan’s partner Steven Cheng, in the list of names of those who had cared for him in his last days read out by [Dunstan’s elder son] Andrew Dunstan.21

And while a journalist at the Australian included ‘homosexual reforms’ amongst Dunstan’s achievements while in office,22 historian Tim Reeves refuted this assertion in a letter to the editor:

This is misleading.

Three Private Members Bills were introduced in 1972, 1973 and 1975 to decriminalise homosexual male acts… the second and third from an enterprising new Labor member, Peter Duncan.

While Attorney-General in the mid-1960s, Dunstan had advocated decriminalisation but was blocked by Caucus. In the Lower House Labor demonstrated its solidarity as a party in defiance of a conscience vote for each Bill. But Dunstan never took the lead on decriminalisation in parliamentary or community debate. And although in the House he accused police of engaging in entrapment to ensnare homosexuals, he also referred to homosexuals’ ‘vulgarity and unpleasantness of… behaviour’.

It was Duncan who introduced pioneering legislation that created a code of sexual behaviour regardless of gender or sexual orientation, and a common age of consent, demonstrating the political courage and acumen on this issue.23

Here, Reeves was continuing a theme that he wrote about in 1994,24 which he subsequently pursued with historian Malcolm Cowan in 1998 when they wrote on the gay rights movement and law reform between 1973 and 1975. In this later piece, Reeves and Cowan conclude that,

[w]‌hile the Dunstan Governments have been hailed for their commitment to broad social reform, the introduction of Private Member’s bills in 1973 and 1975 seeking decriminalisation was the work of a young and enterprising Labor member… Peter Duncan’s pioneering legislation sought to create a code of sexual behaviour which established statutory equality regardless of gender or sexuality.25

Writing about the murder of Dr George Duncan four years later, Reeves restated his opinion on the eventual enactment of law reform: ‘[t]‌he ignorance and prejudices of even those politicians in support was evident during debate; Premier Don Dunstan referred to homosexuals’ “vulgarity and unpleasantness” of behaviour’.26

Thus by 2002, three years after Dunstan’s death and thirty years since the first legislative reform of 1972, Dunstan’s role and contributions had been overlooked and even denied.

Homosexual Law Reform Efforts of the 1960s

Innovative law reform was a strong feature of Dunstan’s career.27 A journalist interviewing Premier Dustan in 1968 learnt that ‘[t]‌he duties of State Labor Governments must be clear… to pioneer in the area of social reform’.28 Dunstan, writing in 1970 for The Australian Humanist, delineates two principles underpinning his civil rights position:

The first is that the laws a community enforces should be designed solely to allow the members of that community to live together amicably, and the second is that no-one in the community has the right to lay down that a certain code of behaviour should be observed by everyone in the community, regardless of the effect such a code has on individuals in the community.

Following from this, I believe that the criminal and civil Laws [sic] of the community are to protect citizens from having themselves or their property damaged by other citizens, and for no other reason.29

So it is not surprising that one of Dunstan’s first initiatives upon his appointment in 1965 as Attorney-General was to secure Cabinet agreement to decriminalise homosexuality. Dunstan recalls obtaining the permission of Caucus to introduce the draft legislation into the Parliament. Before the Bill had been presented, however, several Caucus members expressed concern that the public was not ready. Dunstan understood their position and acknowledged that little had been heard in South Australia about the 1957 Wolfenden Committee report in England which had recommended a similar change in law there.30

This early initiative is discussed subsequently during the 1972 parliamentary debate on Hill’s proposed law reform. Dunstan reflects on his motivations:

I had a Bill drawn on this matter when I was Attorney-General but I did not proceed with it then because the climate of public opinion was not such that I believed we could obtain a sufficient consensus of opinion to support an amendment to the law – not that I did not believe it was right to make the change then as I believe it is right to make a change now, for my experience in the criminal law had been such that I had seen the misery, the harm, the hurt and the injustice that have occurred in this area of the law.31

Support indeed was scarce. A 1967 nation-wide survey of 1045 adults by legal academics Chappell and Wilson revealed that less than one quarter of respondents favoured liberalisation of the laws relating to homosexuality. The researchers concluded:

T‌hose brave (or foolish) enough to advocate reform must combat the fierce traditional antipathy of Australians towards homosexuals, antipathy based almost certainly on a widespread misunderstanding and lack of sympathy…

However, there seems little doubt that few Australians are aware of the nature of the [Wolfenden report] reform effected in England, due largely to the lack of debate on the subject of homosexuality in or outside of the various parliaments of this country.32

Dunstan was not deterred and pursued his agenda. Premier Frank Walsh, under the then ALP age rules, was not eligible to contest the coming elections and instead chose to retire while in office.33 Dunstan was sworn in as Premier on 1 June 1967. In July, Dunstan announced a three-member committee headed by Justice Hogarth to review the criminal law; homosexuality was noted within the committee’s terms of reference.34 But with scarcely nine months in office, this initiative faltered.

Despite losing the 1968 elections,35 Dunstan persisted. As Leader of the Opposition, he secured the agreement of Caucus to pursue decriminalisation. However, this time Caucus did not want Dunstan to lead the initiative. Instead, it was arranged for Lindsay Riches, another ALP MP and a Methodist lay preacher, to present the matter to Parliament.36 Dunstan explains that,

[i]‌n 1969, while in opposition, I arranged for a motion to be introduced by a senior Labor member to raise the matter publicly for debate, but the then Premier called an election before it was due to be moved.37

Working for Reform in the 1970s

Following a campaign during which he declared his support for criminal law reform, Dunstan’s second term as Premier commenced in May 1970. ‘People should be able to live the way they wish’ he announced. He went on to explain that,

[t]he Labor Party will establish a commission for the revision of the criminal law and its administration, whose specific duty will be to consider the removal of attempts to invade areas of private morality and social welfare.38

By now Dunstan had accrued an extensive body of experience as Attorney-General, Premier, and Leader of the Opposition to guide him on how best to inform, educate and persuade others that the intended reform deserved support. In power again, his approach for achieving law reform was more strategically addressed to the political niceties of process: he decided to set up a broad inquiry into South Australian criminal law. A couple of days after the election, Dunstan declared that homosexuality would be dealt with by the anticipated review.39

In December 1971 Justice Roma Mitchell was commissioned to chair the enquiry.40 Specifically, the decriminalisation of homosexuality would be dealt with as one of a number of issues.41 The process allowed for community submissions, a range of professional input, informed debate and – perhaps most importantly – a set of independent recommendations to the government for its attention and legitimate action. The use of committees of enquiry and Royal Commissions to minimise public reaction to reforms, and to allow the government to argue that its policies were based on sound information, came to be recognised as a hallmark of the Dunstan government.42

At this same time the gay liberation movement was becoming established in Australia. The first meeting in South Australia of CAMP had been held in August 1971, and a decision was taken to work on a submission to the Mitchell enquiry.43 CAMP SA reported in the national newsletter, Camp Ink, that ‘many observers believe, this committee will recommend the abolition of existing laws against male homosexual behaviour as part of its wider proposals for law reform’.44 However, following Dr Duncan’s murder in May 1972 and Hill’s consequent private member’s bill, Peter Ward, a senior member of Dunstan’s staff, requested a meeting with CAMP. Ward explained that the government would work for the passage of the private member’s bill even though the Mitchell enquiry had not completed or reported on its findings; Ward urged CAMP to lobby.45

The government by its previous efforts, and with the Mitchell review underway, had nailed its colours to the mast and could not be seen to be influencing community debate. Ward’s behind-the-scenes meeting, though, suggests that the government was clearly determined to ensure that at least this time there would be a community debate. The meeting itself is an extraordinary step for a senior member of the Premier’s staff to take: it is most unlikely that any staffer from the Premier’s office, no matter how senior, would give an undertaking about the government’s intentions and provide encouragement to a lobby group without the prior knowledge and permission of the Premier himself. Here, the circumstance of Dr Duncan’s death had created a different climate which presented an opportunity, and the government intended to secure a successful outcome. But the conservative elements forced changes to Hill’s intended legislation and the result was less than desirable. Consequently, this meant a return to the process of the Mitchell enquiry, and the media reported Dunstan’s view that, ‘any further alteration to the law on homosexuality would depend on the report of the Criminal Law Revision Committee’.46

Dunstan’s Support

In the meantime, Dunstan worked to open up discussion within the Labor Party. At the annual state ALP convention in June 1972, the Young Labor Association listed a resolution for the decriminalisation of homosexuality. Social issues had not been discussed at previous conventions on the ground that members should be free to cast a conscience vote on such matters. Dunstan’s input facilitated a break with tradition, allowing open discussion at future conventions with the proviso that any decisions were not binding on party members. This step was regarded as one of the most significant moves for many years, and according to one delegate, ‘Don’s support has given the ALP a new dimension. It will give people searching for guidance something to look to’.47

Dunstan’s support extended to Peter Duncan, when the latter took his seat on the backbenches following the ALP’s win in the state election of March 1973. Peter Duncan recalls his initiative to reform the law:

Len King [the Attorney-General] wouldn’t have touched this with a barge pole. He was a good Catholic boy, and wasn’t at all interested in anything that ran across the morality of the Church. Well, that is why I raised it in Caucus before anything happened. And Len King was happy to have it happen as long as he didn’t have to be part of it… Len could have early on probably squashed my right to put a Bill up. And I suspect that Don made sure he didn’t.48

Len King’s personal opinion expressed during the parliamentary debates over Hill’s 1972 private member’s bill was blunt:

I do not accept a view that has been propounded outside the Parliament that we should repeal the existing law because homosexual practices are themselves no more morally reprehensible than are heterosexual practices… I take the view that the traditional attitude of Christendom, the traditional Judaeo-Christian ethic on this matter, is right and that homosexual practices are intrinsically evil.49

Duncan’s first Bill unexpectedly was not passed.50 The difficulties were such that Duncan, ‘found it necessary, however, to confirm that the bill was in no way to be seen as condoning homosexual practices or behaviours in public, and made no mention of any homosexual reform groups’. Peter Ward, Dunstan’s senior adviser, had telephoned the GAA and advised that ‘the Government supported the legislation and GAA should tread carefully to ensure its safe passage’. But, following the furore over suggestions by GAA about educating senior school students on homosexuality, supportive politicians reversed their position and thus Duncan’s initiative failed.51

The Mitchell Committee’s first of three reports was tabled in July 1973, just prior to the introduction of Duncan’s first Bill. In this report the difficult issues surrounding sexual offences, especially with minors, and recidivism received attention.52 The second report, tabled in November 1974, dealt with, ‘those street offences which may have political implications and which in our view warrant amendment’. The Committee considered the crime of loitering – the charge most frequently brought against homosexual men – and recommended the abolition of this offence, sounding, suggest Mitchell’s biographers Magarey and Round, ‘just like… Don Dunstan in the 1960s’.53

A looming election, eventually held in July 1975, slowed government response to this second report. Once the election was over, however, Duncan moved quickly to re-introduce his Bill.54 There was a change this time in the role and method of homosexual activists. As Roger Knight, president of CAMP, recalls:

it was decided really to avoid any direct gay lobbying of politicians by people who were gay activists, but to move the thing onto a kind of faintly ghostly level known as the Social Concern Committee. Now the Social Concern Committee was born… I think, in Peter Ward’s living room… one day in 1975 when a number of people sat around and said, ‘Well, okay, let’s… get together a group of people who would look to be or are concerned citizens in let us say the caring professions in which we’ll include religion’; and… finally I think it was probably Peter Ward who came up with the idea of a ‘Social Concern Committee’. He thought it sounded nice and that the Methodists would probably like it, and he was dead right. So this was then floated and we got together a committee, which never met of course, which then produced a document which was circulated around parliamentarians… Peter Ward did a wonderful editing job on [the document]… What it skirted around really carefully was this issue… the okayness of gayness. It really never got around to saying that at all. Whenever that issue emerged, the Social Concern Committee galloped away in the opposite direction.55

This time Duncan succeeded in homosexual law reform. It must be noted, however, that Duncan’s efforts follow on from the initiatives commenced by Dunstan in 1965, and were supported directly through the behind-the-scenes liaison and collaboration with gay liberation groups by one of Dunstan’s trusted senior staff.

Leadership and Guidance

As well as this work with lobby groups, there is a suggestion that there was a collaborative effort at play within the ALP’s parliamentary wing led by Dunstan. Roger Knight recounts sitting next to Peter Duncan in the Parliament to observe the final vote, at which Tom Casey, the Minister of Agriculture and a staunch country Catholic who had previously voted against the Bill, was again voting.

And Duncan said ‘Just watch this’. What he’d arranged for was [for Deputy Premier] Des Corcoran, who was also a decent old Catholic guy from the country, to go and have a little word with Casey… A messenger came into the House and indicated to Casey that someone was wanting to talk to him and the person who wanted to talk to him was in fact Des Corcoran out in the corridor, who must have had a few words to say about sticking with Peter’s bill and voting with the Party and so on, and Casey came back looking absolutely like thunder. And he just sat there, on the benches, and 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 instructive as to how parties work…

Knight concludes with an observation on these political machinations:

the lesson I got in the discipline of 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.56

Knight mistakenly attributes the party discipline to Duncan; it is more likely due to Dunstan’s role as parliamentary leader. As noted above, Duncan suspected that Dunstan made certain that Attorney-General Len King did not stymie the incursion into his portfolio by a young backbencher. Duncan further declared:

Don put a lot of political heavyweight lobbying into this. I mean, I don’t know the details of individual conversations, but Tom Casey – to put his hand up in the Upper House – he probably had to have his ministerial arm twisted…

There were two people I knew of in the Parliament, or subsequently knew in the Parliament apart from Dunstan, who were gay or bi. And neither of them went anywhere near this issue, except for putting their hand up in a public sense, because they were obviously terrified of being blackmailed or outed or whatever… And you know, in the context of putting their right hand up at the right time was all I asked of them.57

Interestingly, Dunstan confirms his role, but also explains that the Bill, ‘passed with strong support from the then Attorney-General, Len King, (now Chief Justice), and myself, and we used our influence to see that although it was a free vote, all members but one of the ALP in both Houses voted for it’.58

The success of the 1975 vote on homosexual law reform was assured by the support of Dunstan, not just with his vote in the House, but also with his strategic lobbying and guidance within the ALP parliamentary wing.

Vulgar and Unpleasant?

The historical record surrounding the inference – raised at the time of Dunstan’s death and published again in 2002 – that Dunstan’s reference to homosexuals’ ‘vulgarity and unpleasantness’ of behaviour demonstrates his ‘ignorance and prejudice’,59 also deserves attention. The full context of these 1972 comments in the parliamentary record reveal that Dunstan was describing the attitudes of his own upbringing; he concludes, ‘I think most of us have been brought up with a kind of traditional prejudice about this matter’. Dunstan then explains how he came to confront his prejudices advising that, ‘I think everyone of us, in life and in politics, needs constantly to question his own assumptions’.60

In an interview, also in 1972, Dunstan explained both his and the ALP’s position on homosexual law reform. ‘[T]‌hat’s a matter of individual conscience’, he said. ‘I should think that the majority of the members of the party would be in favour of it. I’ve always been in favour of it and I’ve always made that clear – it’s a personal opinion and I’m not expressing my Party’s opinion’.61

Dunstan was not ignorant of homosexuals or homosexuality, given that he circulated in a sophisticated world of fine arts. His own artistic streak was evident in his teens, writing poetry and short stories as well as drama criticism. In 1945, aged 18, Dustan acted in Colin Ballantyne’s production of Shakespeare’s Twelfth Night. By 1946 Dunstan was on the board of the Adelaide University Theatre Guild, and when Ballantyne established the Company of Players in 1955, Dunstan was co-opted as legal adviser, and he ‘sat on the new Company’s board formally representing the authors and taking an active part in the enterprise’.62

The Company’s first production was a set of three verse plays by Brian Medlin, John Bray and Charles Jury.63 Jury’s work, The Administrator, first presented by the Company of Players in its inaugural season, is a play about the love between two young men; it has a happy ending. In the same year, Jury published the outcome of more than a decade’s work, the play Icarius, another love story between two young men. Jury had asked fellow playwright and lawyer, John Bray, for advice on the Latin in the dedication for Icarius.64 Jury and Bray were steadfast friends from their university days.65

John Bray was integral to an erudite network of friends, including Colin and Gwenneth Ballantyne and their neighbours, Dimitri Theodoratos and Peter Ward.66 Ward recalls that living with his male partner in the inner city suburb of North Adelaide was, ‘in those days, a defiant statement’.67 Ward’s talents led him to a diverse career in advertising, public relations, and radio and print journalism. When Ward was elected to the position of South Australian Branch President of the Fellowship of Australian Writers in 1960, it was Bray who was his Vice-President.68 The circles of friendships were cemented with literary ‘school’ gatherings each week at a hotel, and monthly poetry meetings.69

These friendships complemented other working relationships: in the late 1960s both Ward and Dunstan were involved in the CCL.70 As an executive member of the Council, Ward had raised concerns about police records on homosexuals.71 Ward also had worked on Dunstan’s campaigns prior to joining Dunstan’s staff in 1969.72 It was at Ward’s kitchen table that John Bray sat as they worked together drafting the Bill to establish the South Australian Theatre Company.73 And for the 1973 opening of the new drama theatre at the Adelaide Festival Centre, records Dunstan, ‘John Bray the Chief Justice, composed a poem for me to recite from the stage, and Peter Ward added (having announced he was also the premieral bard) some excellent blank verse of his own as an introduction’.74 Dunstan recalls in his memoirs that, ‘Ward steadily became a friend and confidant’.75 By the time Dunstan had resumed the premiership in 1970, he and Ward frequently would dine at one another’s home.76

While Dunstan could count homosexual people amongst his friends and colleagues, he also had direct exposure to difficulties that could arise from prejudice. During the 1972 parliamentary debate on Hill’s Bill, Dunstan – previously a member of the Actors Equity Guild – explicates:

As Secretary of my union, since there is a larger proportion of people who are homosexually inclined in the acting profession than almost anywhere else, naturally enough I came in contact with cases… [T]‌here were people in the community who were apparently, from all observations and any other conceivable criterion, completely normal in their activities, attitudes, modes of living, and the like, but who nevertheless were homosexuals… [T]he problem for them was that, although they were socially useful (they related satisfactorily to other people in the community; they were able to carry out their jobs, and they were often charming, pleasant, intelligent and sensitive people), they lived subject to the constant threat that, since their motives were different from the norm and from the outlooks and tastes of the majority of the community, they were liable to prosecution, persecution and blackmail.77

Prejudice was apparent, too, within Dunstan’s personal experience. As Attorney-General, Dunstan was inspired in 1967 to appoint Bray to the position of Chief Justice of South Australia, partly because of Bray’s worldly knowledge outside of the law and his historical perspective of humanity.78 Dunstan regarded positively Bray’s, ‘somewhat Bohemian existence’ and associations with ‘authors, artists and actors rather than the blue-rinse set’.79

Bray’s nomination had been cleared by Dunstan with Premier Frank Walsh prior to being tabled in Cabinet. Police Commissioner McKinna, however, was determined to prevent the nomination proceeding and informed Walsh of allegations that Bray was homosexual. Walsh announced in Cabinet that the nomination could not proceed. Dunstan recalls consequently meeting Walsh with McKinna, ‘I flew into a temper and demanded to know how he dared to traduce a citizen and endeavour to interfere with Cabinet appointments on such a basis’.80

When Bray learnt of the attempt to block his nomination, he misunderstood the detail of McKinna’s report. The charge of homosexuality was against Bray, but he mistakenly believed the concern was that he had been linked with a homosexual. Bray supposed this was Peter Ward, and discussed the issue with Ward – who thought that the homosexual could have been any of a number of others. Eventually, Dunstan threatened to resign if the appointment was blocked. Bray became Chief Justice, and his successful term in office came to be highly regarded internationally.81

Dunstan’s commitment is further evident at the time of the dismissal by the board of the fledgling South Australian Theatre Company of its inaugural director, John Tasker, not quite three years into his appointment. Tasker had been living openly in a homosexual relationship and was convinced that this had been used against him. Ward records that Dunstan considered ‘Tasker to have been grievously treated, [and] he found employment for him in the Labor Party’s advertising agency writing radio and television scripts in the run-up to the State election, set for March 1968’.82

The inference that Dunstan’s comments on homosexuals’ ‘vulgarity and unpleasantness’ reflected his ignorance and prejudice is contradicted not only by their context and by his other statements, but also by the personal familiarity and professional respect characteristic of Dunstan’s engagement with homosexuals.

Achieving Radical Policies

There is further inconsistency to be found in the statements not by Dunstan but by Duncan. When introducing his private member’s bill for the second time in 1975, Duncan declared,

The first thing to which I want to refer is the question of homosexuals who are living together adopting children. I find that quite abhorrent, and I oppose it strongly… Further, suggestions have been made that homosexuals should go into schools to discuss their attitudes, and I do not support that in any way… This Bill in no way seeks to assist or approve of homosexual practices.83

Duncan’s comments, too, seem ignorant and prejudiced. But this contradiction can be teased out. According to political scientist, Dennis Altman, Dunstan’s electoral success lay in his, ‘appreciation of the symbolic in politics, and the way in which even very radical policies can be achieved as long as the veneer of respectability is preserved’.84 This is remarked upon by one of the homosexual community members most closely involved in the lobbying process, David Hilliard, who recalls of Duncan’s negative introduction to the final debates in Parliament that, ‘[i]‌n his second reading speech, [Duncan] tried to mollify conservative critics’.85

Duncan remembers that he had to negotiate his way around a number of pressure groups. For example, the General Conference of the Methodist Church in Australasia had previously had passed a resolution stating that,
‘[i]‌n the light of the fact that Parliament, society and the church do not consider fornication, adultery and Lesbianism as criminal offences, we consider that homosexual acts between consenting male adults should not be proscribed by the criminal law’.
86 Yet, Duncan recalls, he still had to clarify that decriminalisation would not entail recognition of same-sex relationships as marriages. ‘The Methodists… were particularly concerned that gay law reform applied to the Criminal Law and not to the laws of marriage. That may have been why I was so strident in saying that I didn’t accept – that I didn’t want to see change in that regard’.87

Duncan confirms the explanation of these seemingly prejudiced comments in terms of the need to be circumspect, to acknowledge the views of others in the broader community even if they are not one’s own, and to minimise the risk of alienating voters in parliamentary debate.88 And, as discussed above, the conservatives to be mollified were found not only in the wider community and on the opposition benches in Parliament, but also within the government’s own members. So it seems that such adverse comments are more appropriately interpreted as statements reflecting in Altman’s words, ‘the way in which even very radical policies can be achieved as long as the veneer of respectability is preserved’.

But Dunstan’s direct position on his role as a legislator in 1970, as stated in the Australian Humanist, is consistent with his view given in the Parliament during the 1972 debate:

one must face the fact that the majority of people who are homosexual do not regard homosexuality as a disease at all, nor do they regard it as a condition to be cured. They regard it as normal and natural… I do not believe that society has any right whatever to trespass in this area. The purpose of the criminal law is to protect persons from physical harm and from active affront, and their property from harm, also. Outside of that area, I believe the criminal law has no place at all… The law is not a means of enforcing morality.89

The full context of Dunstan’s reference to homosexuals’ ‘vulgarity and unpleasantness’ of behaviour refutes rather than reflects ignorance and prejudice. In the Parliament, Dunstan speaks clearly about his knowledge of homosexuality and about his personal opinions. By his actions, Dunstan demonstrates his regard for those homosexuals known to him as colleagues and friends. And in leading his government, there is a political appreciation of conservative opinion and voters – both in the electorate and within the ALP – while securing the progressive and ground-breaking outcome desired.

Acknowledging Dunstan

Michael Kirby’s belief that, ‘Don Dunstan began our national process to remove the criminal laws against homosexual men’ has validity.90 Dunstan was the first Australian politician in government who actively championed the civil liberties of homosexual citizens.

While the assertion that ‘Dunstan never took the lead on decriminalisation in parliamentary or community debate’ may appear superficially to have substance, the detail of Dunstan’s record establishes that he took the lead in other ways before informed parliamentary and community debate became readily possible. Similarly, the assertion that Dunstan merely ‘advocated decriminalisation’ is inaccurate by its incompleteness. Even though Dunstan’s draft bill in 1965 did not make it to as far as the Parliament, his preparation of draft legislation enabled a more complete amendment seven years later: although Duncan introduced pioneering legislation into the Parliament for debate and vote, Dunstan had initiated it a decade earlier, and its eventual passage was achieved with his guidance and leadership.

Looking back, it is apparent that the professional life and work of Don Dunstan was infused with, and enriched by, the skills, contributions and commitment of homosexual men who understood his vision for South Australia, and who shared his political ideals. Later in life, Dunstan would embrace these ideals personally living as a homosexual man. At the time of Don Dunstan’s death in 1999, neither Dunstan’s solid record in homosexual law reform nor Duncan’s ground-breaking Bill were included in the formal recognition given to the many law reform achievements of Dunstan and his government.

Amongst the ALP’s tribute to Dunstan’s reformist pioneering spirit was the testimony by senior political figure Clyde Cameron: ‘[w]‌hen Labor won government in 1965 and again in 1970, Premier Dunstan did more to civilise South Australians than any other Premier in the history of this state’.91 But erasing homosexual from law reform not only denies recognition due for Dunstan, it also diminishes our standing as a civil society.

Endnotes - Chapter 3

1 Homosexual Law Reform in Australia, Parkville, Vic.: Australian Lesbian and Gay Archives (ALGA), 1993.

2 Don Dunstan, Felicia: The Political Memoirs of Don Dunstan, South Melbourne: Macmillan, 1981, p. 201.

3 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. 158–162.

4 Stewart Cockburn, The Salisbury Affair, Melbourne: Sun Books, 1979, pp. 75–77.

5 Reeves, ‘The 1972 Debate’, p. 160.

6 ‘Homosexuals and the Law’, editorial, Advertiser, 13 October 1972, p. 5; Malcolm Cowan, The Decriminalisation of Homosexuality in South Australia, 1972–1975, BA (Hons) Thesis, University of Adelaide, 1990, pp. 67–80.

7 Dean Jaensch, ‘Chronicle: South Australia’, Australian Journal of Politics and History, vol. 19, no. 1 (1973), p. 94.

8 Don Dunstan, ‘Dunstan Sets it Straight’, letter to the editor, Sydney Star Observer, 5 April 1991, p. 11.

9 Dunstan, Felicia, p. 202.

10 Susan Magarey and Kerrie Round, Roma the First: A Biography of Dame Roma Mitchell, Kent Town, SA: Wakefield Press, 2007, pp. 234–235; Peter Duncan, interview with Dino Hodge, 21 September 2009.

11 Malcolm Cowan and Tim Reeves, ‘The “Gay Rights” Movement and the Decriminalisation Debate in South Australia, 1973–1975’, 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, p. 177.

12 Letters to Peter Duncan, Flinders University, Dunstan Collection, Allan Patience Files, 17.

13 J. G. Cummins and Council for Civil Liberties, to Peter Duncan, letter, 21 August 1973, Dunstan Collection, Allan Patience Files, Flinders University, 17.

14 Cowan and Reeves, ‘The “Gay Rights” Movement’, pp. 177–185.

15 ibid., pp. 164–193; Andrew Parkin, ‘The Dunstan Governments: A Political Synopsis’, in Andrew Parkin and Allan Patience, eds, The Dunstan Decade: Social Democracy at the State Level, Melbourne: Longman Cheshire, 1981, pp. 11, 13.

16 Allan Patience, ‘Social Democracy in South Australia in the 1970s’, in Parkin and Patience, eds, The Dunstan Decade, pp. 294–295.

17 Michael Kirby, Consensus and Dissent in Australia: Tenth Annual Hawke Lecture, Adelaide: The Bob Hawke Prime Ministerial Centre, University of South Australia, 2007, p. 8.

18 Gary Orr, ed., Don Dunstan, 1926–1999: A Labor Herald Tribute. Barton, ACT: Labor Herald, 1999.

19 Charles Bright, ‘Law Reform’, in Parkin and Patience, eds, The Dunstan Decade, pp. 147–162.

20 Samela Harris, ‘Don Dunstan – A Celebration. One Big, Sad Omission’, Advertiser, 13 February 1999, p. 13.

21 Barbara Baird, ‘The Death of a Great Australian’, Journal of Australian Studies, vol. 71 (2001), p. 75.

22 Roy Eccleston, ‘A Decade of Dash and Doing’, Australian, 8 February 1999, p. 11.

23 Tim Reeves, ‘Duncan Led Gay Law Reform’, letter to the editor, Australian, 16 February 1999, p. 12.

24 Reeves, ‘The 1972 Debate’, pp. 172–173.

25 Cowan and Reeves, ‘The “Gay Rights” Movement’, p. 192.

26 Tim Reeves, ‘Duncan, George’, in Robert Aldrich and Garry Wotherspoon, eds, Who’s Who in Contemporary Gay and Lesbian History: From World War II to the Present Day, London: Routledge, 2002, pp. 116–117.

27 Peter Ward, ‘Donald Allan (Don) Dunstan’, in Wilfrid Prest et al., The Wakefield Companion to South Australian History, Kent Town, SA: Wakefield Press, 2001, p. 154.

28 Brian Buckley, ‘Dunstan’, Bulletin, 3 February 1968, p. 25.

29 Don Dunstan, ‘Civil Liberties in the Seventies’, The Australian Humanist, no. 14 (June 1970), p. 23.

30 Dunstan, Felicia, pp. 126–127; Dunstan, letter to the editor, Sydney Star Observer, 5 April 1991, p. 11.

31 South Australian Parliamentary Debates (SAPD), 18 October 1972, pp. 2204–2205.

32 Duncan Chappell and Paul Wilson, ‘Public Attitudes to the Reform of the Law Relating to Abortion and Homosexuality, Part II’, Australian Law Journal, vol. 42 (September 1968), pp. 175–180.

33 Campbell Sharman, ‘Political Chronicle: South Australia’, Australian Journal of Politics and History, vol. 13, no. 2 (1967), p. 270.

34 Jeffrey Scott, ‘Political Chronicle: South Australia’, Australian Journal of Politics and History, vol. 13, no. 3 (1967), p. 428.

35 Neal Blewett and Dean Jaensch, Playford to Dunstan: The Politics of Transition, Melbourne: Cheshire, 1971, pp. 156, 168–169.

36 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, pp. 213–214, 234.

37 Dunstan, letter to the editor, Sydney Star Observer, 5 April 1991, p. 11.

38 Don Dunstan, ‘Televised Policy Speech’, Adelaide Town Hall, 30 May 1970, GRG 75/7/2 Unit 1, Department of Premier and Cabinet, miscellaneous documents 1970–1985, State Records of South Australia.

39 Tony Baker, ‘Govt to Study Reforms: Male Sex Law’, News, 3 June 1970, p. 5.

40 ibid.; Magarey and Round, Roma the First, p. 227.

41 ‘Criminal Law Reform’, editorial, Advertiser, 15 December 1971, p. 2.

42 Richard Cox, Social Democracy: A Study of the Dunstan Labor Government, PhD Thesis, Flinders University, South Australia, 1979, p. 343.

43 ‘Homosexuals Seek Law Reform’, Advertiser, 16 February 1972, p. 22. Greg Walker, ‘Homosexuality’, Sunday Mail, 24 June 1972, p. 93.

44 ‘Adelaide Scene’, CAMP INK, vol. 2, no. 2/3 (December 1971/January 1972), p. 19.

45 Reeves, ‘The 1972 Debate’, pp. 151–164.

46 ‘MP Abused Over Homosexual Bill: “Reputation Damaged”’, Herald, 28 October 1972, p. 9.

47 Dean Jaensch, ‘Chronicle: South Australia’, Australian Journal of Politics and History, vol. 18, no. 3 (1972), p. 432.

48 Peter Duncan, interview with Dino Hodge, September 2009.

49 SAPD, 18 October 1972, p. 2213.

50 ‘Schools and Homosexuals’, editorial, News, 1 November 1973; ‘Homosexual Defeat’, editorial, Advertiser, 22 November 1973, p. 5.

51 Cowan and Reeves, ‘The “Gay Rights” Movement’, pp. 164–185; David Hilliard and Roger Knight, ‘20 Years On, 1975–1995: The Campaign that Led to the Passing of Homosexual Law Reform Legislation in South Australia in 1975’, Darling House Community Library, 1995, GR 147, 2–3.

52 Roma Mitchell et al., ‘Criminal Law and Penal Methods Reform Committee of South Australia, First Report: Sentencing and Corrections’, Parliamentary Paper 91, Adelaide: Government Printer, 1973, pp. 68–69, 89–94.

53 Roma Mitchell et al., ‘Criminal Law and Penal Methods Reform Committee of South Australia, Second Report: Criminal Investigation’, Parliamentary Paper 128, Adelaide: Government Printer, 1974, pp. 11–16; Magarey and Round, Roma the First, p. 233.

54 ‘A Necessary Reform’, Editorial, Advertiser, 11 August 1975, p. 5.

55 Hilliard and Knight, ‘20 Years On’, pp. 6–9.

56 ibid., p. 14.

57 Peter Duncan, interview with Dino Hodge, September 2009.

58 Dunstan, letter to the editor, Sydney Star Observer, 5 April 1991, p. 11.

59 Reeves, ‘Duncan, George’, p. 117; and, Reeves, ‘Duncan Led Gay Law Reform’, letter to the editor, Australian, 16 February 1999, p. 12.

60 SAPD, 18 October 1972, p. 2205.

61 Julius Roe, ‘A State View: Don Dunstan’, Woroni, vol. 24, no. 12 (1972): Election Special Blueprint, pp. 6–7.

62 Peter Ward, A Singular Act: Twenty Five Years of the State Theatre Company of South Australia, Adelaide: State Theatre Company, Wakefield Press, 1992, pp. 11–15.

63 ibid.; Barbara Wall, ‘Jury, Charles Rischbieth (1893–1958)’, in Australian Dictionary of Biography, vol. 14, Melbourne: Melbourne University Press, 1996, pp. 594–595; Michael Hurley, A Guide to Gay and Lesbian Writing in Australia, St Leonards, NSW: Allen and Unwin, 1996, p. 152; John Emerson, First Among Equals: Chief Justices of South Australia Since Federation, Adelaide: University of Adelaide Barr Smith Press, 2006, pp. 162, 183.

64 Professor Graham Nerlich, (who also acted in one the lead roles in the 1955 production of Jury’s The Administrator), telephone conversation with Dino Hodge, 11 November 2009.

65 Emerson, First Among Equals, pp. 175, 180–181.

66 ibid., p. 184; Magarey and Round, Roma the First, pp. 179, 185; Ward, A Singular Act, p. 6.

67 Magarey and Round, Roma the First, pp. 178–179.

68 Emerson, First Among Equals, pp. 170, 182–183, 187.

69 ibid., pp. 184–187; Ward, A Singular Act, p. 15.

70 Magarey and Round, Roma the First, p. 208.

71 Anne Summers, ‘New Questions in the Dossier Affair’, National Times, 30 January – 4 February 1978, pp. 5, 7.

72 Cockburn, The Salisbury Affair, p. 4.

73 Ward, A Singular Act, p. 16.

74 Dunstan, Felicia, p. 245.

75 ibid., p. 168.

76 GRG 108/1 Unit 1, Transcript of Proceedings – Royal Commission into the Dismissal of Harold Hubert Salisbury, 805–806, State Records of South Australia.

77 SAPD, 18 October 1972, pp. 2204–2205.

78 Emerson, First Among Equals, p. 162.

79 Dunstan, Felicia, p. 116.

80 ibid., p. 133.

81 ibid.; Emerson, First Among Equals, pp. 160–163; Magarey and Round, Roma the First, pp. 211–213; Ian Purcell, ‘Justice Served’, Adelaide Review, November 2008, pp. 24–25; Bright, ‘Law Reform’, p. 148; Wilfrid Prest, A Portrait of John Bray: Law, Letters, Life, Kent Town, SA: Wakefield Press, 1997, p. 95.

82 Ward, A Singular Act, pp. 25–32.

83 SAPD, 27 August 1975, pp. 503–504.

84 Dennis Altman, Coming Out in the Seventies, Sydney: Wild and Woolley, 1979, p. 225.

85 Hilliard and Knight, ‘20 Years On’, p. 3.

86 SAPD, 18 October 1972, p. 2198.

87 Peter Duncan, interview with Dino Hodge, September 2009.

88 ibid.

89 SAPD, 18 October 1972, pp. 2206–2207.

90 Kirby, Consensus and Dissent, p. 8.

91 Clyde Cameron, ‘Young Don’, in Orr, ed., Dunstan: A Labor Herald Tribute, p. 24.

Cite this chapter as: Hodge, Dino. 2011. ‘The Okayness of Gayness: Don Dunstan’s Record in Homosexual Law Reform’, in Out Here: Gay and Lesbian Perspectives VI, edited by Smaal, Yorick; Willett, Graham. Melbourne: Monash University Publishing. pp. 36–55.

Out Here: Gay and Lesbian Perspectives VI

   by Yorick Smaal, Graham Willett