The Adventures of QueerPenguin

Justice and Common Sense are Sometimes Synonymous

This week's SX column. Ta.


It’s a good news week, with Australian homosexual tourist Thomas McCosker returning home from Fiji after his two-year jail term for consensual sex with another man was overturned by the Pacific island’s High Court.

Justice Gerard Winter, sounding markedly different from the original trial judge who claimed McCosker’s “crime” was “something so disgusting that it would make any decent person vomit”, ruled that Fiji was obliged by its Constitution to “put sexual expression in private relationships into its proper perspective and allow citizens to define their own good moral sensibilities, leaving the law to its duties of keeping sexual expression in check by protecting the vulnerable and penalising the predator”.

McCosker’s case, after the initial appalling verdict, began to look more promising when it became clear that the laws under which McCosker was originally sentenced were unconstitutional. Interestingly, however, it was not the Australian Government that discovered this legal loophole in a frantic quest to save one of its citizens.

Reading the response of our government now, you would be forgiven for assuming it made every effort to assist McCosker and combat this infringement of human rights. The Parliamentary Secretary for Foreign Affairs was said to be “deeply interested” in this case, claiming “we had pointed to the inconsistencies, indicating that there were very clear indications in the Fijian constitution and in broader human rights terms as a right to privacy and non-discriminatory conduct within the country”.

Wow. What a difference a few months make, from the time when a spokesperson for DFAT responded to news of McCosker’s conviction thusly: “When Australians are overseas, they need to respect the laws of the country they are in”.

As I have argued previously in this column, DFAT should never have had such a knee-jerk reaction, especially when it is now painfully clear how wrong they were. If this government had utilised even a fraction of the time and resources it was then devoting to Schapelle Corby - who, incidentally, was found guilty – it could have done its job properly and quickly discovered the Fijian constitutional discrepancy. Instead, it prioritised assistance not according to relative injustice, but to who was the media-saturated, female and heterosexual of the two “victims”, leaving McCosker to lament: “I would have liked the Australian Government to have taken more interest in my case”.

Regardless, this verdict is a victory for common sense and a blow against the homophobic reasoning that informed the Australian Government’s original course of inaction. It is a vindication for those who argued all along that we as a nation should have paid more attention to McCosker, and hopefully a strong precedent in the battle against remaining nations that still imprison or even execute their queer citizens.

posted by Sam @ Wednesday, August 31, 2005