Gay law reform: how South Australia led the nation and English-speaking

GAY LAW REFORM: HOW SOUTH AUSTRALIA LED THE NATION AND ENGLISHSPEAKING WORLD

TIM REEVES, INDEPENDENT HISTORIAN

On the morning of 11 May 1972 the body of a man was pulled from the River Torrens, on its southern bank close to the intersection of Victoria Drive and Kintore Avenue. The body had lain on the riverbed for about ten hours and its arms were gruesomely outstretched from the effects of rigor mortis. A television cameraman arrived late and SA Police obligingly returned the body to the river for the filming of its retrieval. Two days later the dead man was identified as Dr George Ian Ogilvie Duncan, a law lecturer at the University of Adelaide. His killing would trigger profound changes in South Australia’s criminal law.

Duncan was born in London and known as ‘Ian’ from an early age. He was educated in Melbourne before gaining a doctorate at Cambridge University, his thesis being published as The High Court of Delegates. He was 41 and had arrived only seven weeks before, having been appointed to teach legal history and Roman law. The head of the University of Adelaide’s law school at the time was Professor Horst Lücke, who met Duncan on arrival and conveyed him to Lincoln College where he had rented a flat.

The southern bank of the River Torrens was a beat: a meeting place for homosexual men. At around 11 pm on 10 May Dr Duncan and another man, Roger James, had been thrown into the river by a group of men. James suffered a broken ankle; Duncan drowned. The murder shocked the community with allegations that police, engaged in their regular activity of ‘poofter bashing’, were involved.

It was a cruel irony that Duncan had come from Britain – which had decriminalised male homosexual acts in 1967 – to a country where they were still criminal in every state and territory. Attorney-General, Don Dunstan in 1965 had convinced Cabinet to introduce a decriminalisation Bill into the South Australian Parliament, but he had been blocked by the Labor Caucus.

The colonists had brought English law with them to Australia. It had never been codified against male homosexuality as such; its focus had always been on specific sexual behaviour. Buggery – anal sex – was first criminalised by Henry VIII in 1533, and in the beginning it was punishable by death. This code operated initially in every colony of Australia. It was not until 1859 – three years after the colony gained self-government – that the death penalty was removed in South Australia, although it had never been used. Over time the penalty was reduced from ten years to life imprisonment, to a maximum of ten years, though early on this included hard labour and even allowed for flogging. Key changes to South Australian law meant that, by 1935, attempting to procure or committing a male homosexual act whether in public or private was outlawed. These were the restrictions in place when Dr Duncan arrived.

At the inquest into the death three vice squad officers refused to answer all questions put to them, were suspended and later resigned from the police force. The coroner’s finding was death due to violence on the part of persons unknown. Public concern was so great that Murray Hill, a progressive member of the conservative side of politics – the Liberal and Country League Party – revealed that he would prepare a private member’s bill to enact decriminalisation. It was introduced into the Legislative Council on 26 July 1972.

The Bill was based on the 1967 British legislation. It would allow consensual sexual acts in private between two men over the age of 21, even though females could consent to sexual activity in South Australia at the age of 17 and the legal age of adulthood in the state was 18. The Bill defined ‘in private’ as involving no more than two people and not ‘in a lavatory to which the public have or are permitted to have access’, a specific reference to beats.

Ren DeGaris, the leader of the Conservatives in the Legislative Council, introduced a devastating amendment to the Bill. He moved that a private, consensual act, committed between two men over 21, would exist only as a defence in court. It allowed for a measure of reform, inevitable and perhaps even necessary after the death of Dr Duncan, but meant that homosexual men would still be dragged before the courts with the attendant publicity. The amended Bill eventually passed both Houses of Parliament. Full decriminalisation thus had not been achieved.

In 1973 Labor’s recently elected member for Elizabeth, Peter Duncan (no relation to Dr Duncan), announced that

Dr George Ian Ogilvie Duncan

he would introduce a radically different Bill into the House of Assembly. The Bill provided for ‘a code of sexual behaviour’ applicable to all persons regardless of sex or sexual orientation. In creating statutory equality between homosexuals and heterosexuals, it established a common age of consent of 17, the same penalties for non-consenting acts and the same restrictions on public acts and penalties. It abolished the offences of buggery, gross indecency and soliciting for homosexual purposes, but now recognised male prostitution and homosexual rape. Harsh penalties were prescribed for sexual offences against children, with special reference to those committed by teachers, guardians or others in a duty of care. This indeed would be far-sighted legislation.

In November 1973 the Bill was put to the vote in the Legislative Council and defeated on the casting vote of the President, Sir Lyell McEwin. In an astonishing lapse a Labor member, Cec Creedon, who supported the Bill failed to vote. He claimed he had not heard the bells ringing for the division. The Bill was reintroduced under a rarely used Standing Order (supposedly last employed in 1884) which allowed a Bill defeated at the second reading to be restored to the notice paper. But McEwin’s deliberative vote ensured failure again.

After the 1975 election the Dunstan Government was returned to power and, while commanding only a one-seat majority in the House of Assembly, its representation in the previously conservative-dominated Legislative Council changed dramatically. The state of the parties was now: Labor – ten; Liberal – nine; and Liberal Movement – two. Although success was not assured this was enough for Peter Duncan to declare on 7 August that he would introduce a Bill which was almost identical in legal intent to that of 1973.

On 17 September 1975 South Australia became the first state or territory in Australia to achieve decriminalisation. This legislation was also the first in the Englishspeaking world to eliminate any distinction in the criminal law between heterosexual and homosexual acts, including the equal age of consent. South Australia’s lead was soon followed by the Australian Capital Territory (1976), then Victoria (1980), the Northern Territory (1983), New South Wales (1984), Western Australia (1989), Queensland (1990) and, finally, Tasmania – 22 years later in 1997.

The Duncan case, however, had remained unresolved. Following the coroner’s open finding, Premier Dunstan had approved a proposal from his new Police Commissioner, Harold Salisbury, to call in two detectives from New Scotland Yard. Their report – which was not released until 2002 – had recommended prosecutions, but the Crown Solicitor decided there was insufficient evidence to proceed. The detectives returned to Britain where they were both later jailed for unrelated offences.

The case was reopened in 1985 following claims by a former vice squad officer of a police cover-up. Subsequently, the three officers identified in the New Scotland Yard report were charged with Duncan’s manslaughter. Brian Edwin Hudson was not brought to trial, unlike Francis John Cawley and Michael Kenneth Clayton – who were acquitted in 1988. A police task force recommended to State Parliament two years later that no further action be taken unless new evidence was forthcoming. And there the case has essentially rested.

The death of Dr Duncan remains one of South Australia’s most notorious unsolved murders. But it was the trigger for momentous changes in the state’s law when male homosexuality for many people was a social taboo.

The Adelaide Festival production of Watershed: The Death of Dr Duncan has been commissioned to mark the 50th anniversary of Duncan’s killing. It runs over six days and nights at the

Dunstan Playhouse from 2 March. B

Lawyer to explore regulation of movement through dance at Fringe Festival

Lawyer-turned-choreographer Rhys Ryan is heading to Adelaide Fringe to stage his latest dance work, Bodylex, which explores the physical effect of legal systems on the body.

“I split my time between working as a lawyer and freelancing as a dance artist,” says the 31-year-old from Melbourne. “I’m a mergers and acquisitions lawyer by day but moonlight in dance studios. I think there’s incredible potential for combining these disciplines – you just have to be creative.”

After winning support from the Adelaide Fringe Artist Fund, Bodylex will embark on a tour to Adelaide in 2022.

Bodylex is set in a tightly controlled arena, where three performers – driven by the pulse of a slowly accelerating metronome – weave movement with metaphor to reveal the invisible laws that shape our actions. It’s a stark and provocative view of our existence under rule-based systems.

“Laws are designed to regulate our behaviour,” explains Rhys. “We are constantly negotiating these rules, either deliberately or unconsciously, in a delicate balance between external pressures and our innermost desires.”

“Physical distancing restrictions are a perfect example of laws regulating our movement. But the interesting part is the choice we face: do we resist, conform or adapt to those rules? What does this reveal about our relationship to power structures and how we exercise agency?”

Bodylex will run from 22-26 February at The Bakehouse Theatre. Tickets are available at www.adelaidefringe.com.au/ fringetix. B