CASE
LAW: Sexuality Rights – Toonen v Australia
Human
Rights Committee
Toonen v. Australia (488/1992), ICCPR, A/49/40 vol. II (31 March
1994) 226 (CCPR/C/50/D/488/1992) at paras. 8.1-8.7, 9-11 and
Individual Opinion by Mr. Bertil Wennergren, 236
...
8.1 The Committee
is called upon to determine whether Mr. Toonen has been the
victim of an unlawful or arbitrary interference with his privacy,
contrary to article 17, paragraph 1...
8.2 Inasmuch as article 17 is concerned, it is undisputed that
adult consensual sexual activity in private is covered by the
concept of “privacy”, and that Mr. Toonen is actually
and currently affected by the continued existence of the Tasmanian
laws. The Committee considers that Sections 122(a), (c) and
123 of the Tasmanian Criminal Code “interfere” with
the author’s privacy, even if these provisions have not
been enforced for a decade. In this context, it notes that the
policy of the Department of Public Prosecutions not to initiate
criminal proceedings in respect of private homosexual conduct
does not amount to a guarantee that no actions will be brought
against homosexuals in the future, particularly in the light
of undisputed statements of the Director of Public Prosecutions
of Tasmania in 1988 and those of members of the Tasmanian Parliament.
The continued existence of the challenged provisions therefore
continuously and directly “interferes” with the
author’s privacy.
8.3 The prohibition
against private homosexual behaviour is provided for by law,
namely, Sections 122 and 123 of the Tasmanian Criminal Code.
As to whether it may be deemed arbitrary, the Committee recalls
that pursuant to its General Comment 16[32] on article 17, the
“introduction of the concept of arbitrariness is intended
to guarantee that even interference provided for by the law
should be in accordance with the provisions, aims and objectives
of the Covenant and should be, in any event, reasonable in the
circumstances”. a/ The Committee interprets the requirement
of reasonableness to imply that any interference with privacy
must be proportional to the end sought and be necessary in the
circumstances of any given case.
8.4 While the State
party acknowledges that the impugned provisions constitute an
arbitrary interference with Mr. Toonen’s privacy, the
Tasmanian authorities submit that the challenged laws are justified
on public health and moral grounds, as they are intended in
part to prevent the spread of HIV/AIDS in Tasmania, and because,
in the absence of specific limitation clauses in article 17,
moral issues must be deemed a matter for domestic decision.
8.5 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.
8.6 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.
8.7 The State party
has sought the Committee’s guidance as to whether sexual
orientation may be considered an “other status”
for the purpose 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.
9. The Human Rights
Committee...is of the view that the facts before it reveal a
violation of articles 17, paragraph 1, juncto 2, paragraph 1,
of the Covenant.
10. Under article
2(3)(a) of the Covenant, the author, victim of a violation of
articles 17, paragraph 1, juncto 2, paragraph 1, of the Covenant,
is entitled to a remedy. In the opinion of the Committee, an
effective remedy would be the repeal of Sections 122(a), (c)
and 123 of the Tasmanian Criminal Code.
11. Since the Committee
has found a violation of Mr. Toonen’s rights under articles
17, paragraph 1, and 2, paragraph 1, of the Covenant requiring
the repeal of the offending law, the Committee does not consider
it necessary to consider whether there has also been a violation
of article 26 of the Covenant.
