Thomas McCosker v The State

Who is Thomas McCosker v The State?

Thomas McCoskar, an Australian, visited Fiji, was arrested, tried and sentenced to two years jail for sodomy. An appeal was raised on the basis of Fiji's constitution outlawing discrimination on the basis of sexual orientation. On Friday 26 August 2005, his conviction, and that of Dhirendra Nadan, the other man involved, was overturned on constitutional grounds.

Anti-sodomy laws were found to be incompatible with the country’s 1997 Constitutional Bill of Rights. The debate over what is and isn’t culturally acceptable was at the heart of the constitutional arguments which were presented during the McCoskar High Court case and raised questions about the values enshrined in the country’s Bill of Rights. The Constitution of Fiji was adopted in 1997 with a mandate to break the racially divisive legacy of the Fiji coups of 1987. Section 43, concerned the respect of traditional Fijian cultural values, in particular traditional titles, obligations, customs and ceremonies. It was designed to protect the specific interests of the indigenous Fijian communities. While the Methodist church in particular has always argued that homosexuality offends it on a cultural level, and it is not culturally appropriate for Fiji, the High Court disagreed with those arguments. The case is being seen as a victory for gay rights, in a country whose colonial legacy is dominated by strict Methodist values.