Toonen v. Australia

Download Judgment: English

Nicholas Toonen was a gay man, HIV/AIDS activist, and LGBT rights activist living in Tasmania. Tasmania criminalized same-sex sexual conduct among men under ss 122 and 123 its criminal code; it was the last remaining state or territory of Australia to do so, the remainder having repealed such laws. Toonen brought a communication before the Human Rights Committee, claiming that the Tasmanian law violated articles 2, 17 and 26 of the International Covenant on Civil and Political Rights.

Australia did not contest this communication, but granted Tasmania the opportunity to provide a reply in its place. Tasmania conceded that the law was an arbitrary interference with privacy, but argued that the law was justified on public health grounds in order to prevent the spread of HIV, and on public morality grounds, which were for domestic authorities alone to decide.

At the time of the communication, there had been no prosecutions under the law for a decade, and the Tasmanian authorities had a policy in place not to enforce ss 122 and 123.

Article 2, paragraph 1 of the International Covenant on Civil and Political Rights requires States parties to ensure to all individuals subject to its jurisdiction the rights recognized in the Covenant, without distinction of any kind on grounds of “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

Article 17 provides that “no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, or to unlawful attacks on his honour and reputation; and everyone has the right to the protection of the law against such interference or attacks.”

Article 26 provides that all persons are equal before the law and declares that the law should prohibit discrimination and positively guarantee freedom from discrimination on grounds of “race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

The United Nations Human Rights Committee (the Committee) noted that it was undisputed that interference with consensual sexual activity was an interference with privacy under article 17. This was the case despite the Tasmanian authorities' policy not to enforce the law, as there was no guarantee that this policy would prevent future prosecutions. It also noted that while this interference was in accordance with law and viewed as justified by the Tasmanian authorities, Australia conceded that the interference by the Tasmanian law was arbitrary.

The Committee then rejected Tasmania's justification of the law on public health and morality grounds. It held that the law could not be justified on public health grounds, because criminalization of same-sex consensual conduct could not be shown to be a reasonable or proportional means of preventing HIV/AIDS. In fact, the Australian Federal Government in its submissions had noted that the criminalization of HIV merely drove the epidemic underground and was counterproductive to effective health education on HIV/AIDS. The Committee had not been given satisfactory evidence to establish that criminalization was an effective means of controlling the spread HIV/AIDS.

The Committee also considered that the law could not be justified on public morality grounds. It first held that public morality was not a purely domestic concern, because otherwise the reach of the Committee would be severely constrained in relation to privacy cases. Further, the Committee could not identify any principle of public morality that would justify the law, because Tasmania was the only state in Australia that had not repealed laws criminalizing consensual adult same-sex sexual conduct, and even within Tasmania, opinion was divided on whether or not the law should be retained.

As such, there was a violation of article 17. In light of this ruling, the Committee declined to rule on whether the right to equality under article 26 had been violated.

The Committee also declined to respond to a request by Australia to clarify whether sexual orientation could constitute an "other status" under articles 2 and 26 of the International Covenant on Civil and Political Rights, instead holding that prohibition of discrimination on the grounds of sexual orientation was part of the prohibition of discrimination on the grounds of “sex” under those provisions.

The Committee noted that an appropriate remedy would be repeal of the law, and gave Australia 90 days to report on the remedy granted to Toonen.

"As far as the public health argument of the Tasmanian authorities is concerned, the Committee notes that the criminalization of homosexual practices cannot be considered a reasonable means or proportionate measure to achieve the aim of preventing the spread of AIDS/HIV. The Australian Government observes that statutes criminalizing homosexual activity tend to impede public health programmes "by driving underground many of the people at the risk of infection". Criminalization of homosexual activity thus would appear to run counter to the implementation of effective education programmes in respect of the HIV/AIDS prevention. Secondly, the Committee notes that no link has been shown between the continued criminalization of homosexual activity and the effective control of the spread of the HIV/AIDS virus." Para. 8.5.

"The Committee cannot accept either that for the purposes of article 17 of the Covenant, moral issues are exclusively a matter of domestic concern, as this would open the door to withdrawing from the Committee's scrutiny a potentially large number of statutes interfering with privacy. It further notes that with the exception of Tasmania, all laws criminalizing homosexuality have been repealed throughout Australia and that, even in Tasmania, it is apparent that there is no consensus as to whether Sections 122 and 123 should not also be repealed. Considering further that these provisions are not currently enforced, which implies that they are not deemed essential to the protection of morals in Tasmania, the Committee concludes that the provisions do not meet the "reasonableness" test in the circumstances of the case, and that they arbitrarily interfere with Mr. Toonen's right under article 17, paragraph 1." Para 8.6

"The State party has sought the Committee's guidance as to whether sexual orientation may be considered an 'other status' for the purposes of article 26. The same issue could arise under article 2, paragraph 1, of the Covenant. The Committee confines itself to noting, however, that in its view the reference to "sex" in articles 2, paragraph 1, and 26 is to be taken as including sexual orientation." Para 8.7.

Australia responded by passing the Human Rights (Sexual Conduct) Act 1994, which used the foreign affairs power granted to the Federal Government under the Constitution as the basis for overriding Tasmanian state law.