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1. The author of the
communication is Nicholas Toonen, an Australian citizen born in 1964,
currently residing in Hobart in the state of Tasmania, Australia. He is a
leading member of the Tasmanian Gay Law Reform Group and claims to be a
victim of violations by Australia of articles 2, paragraph 1; 17; and 26 of
the International Covenant on Civil and Political Rights.
The facts as submitted by the author
2.1 The author is an activist for the promotion of the rights of homosexuals
in Tasmania, one of Australia's six constitutive states. He challenges two
provisions of the Tasmanian Criminal Code, namely, sections 122 (a) and (c)
and 123, which criminalize various forms of sexual contact between men,
including all forms of sexual contact between consenting adult homosexual
men in private.
2.2 The author observes that the above sections of the Tasmanian Criminal
Code empower Tasmanian police officers to investigate intimate aspects of
his private life and to detain him, if they have reason to believe that he
is involved in sexual activities which contravene the above sections. He
adds that the Director of Public Prosecutions announced, in August 1988,
that proceedings pursuant to sections 122 (a) and (c) and 123 would be
initiated if there was sufficient evidence of the commission of a crime.
2.3 Although in practice the Tasmanian police has not charged anyone either
with "unnatural sexual intercourse" or "intercourse against nature" (section
122) nor with "indecent practice between male persons" (section 123) for
several years, the author argues that because of his long-term relationship
with another man, his active lobbying of Tasmanian politicians and the
reports about his activities in the local media, and because of his
activities as a gay rights activist and gay HIV/AIDS worker, his private
life and his liberty are threatened by the continued existence of sections
122 (a) and (c) and 123 of the Criminal Code.
2.4 Mr. Toonen further argues that the criminalization of homosexuality in
private has not permitted him to expose openly his sexuality and to
publicize his views on reform of the relevant laws on sexual matters, as he
felt that this would have been extremely prejudicial to his employment. In
this context, he contends that sections 122 (a) and (c) and 123 have created
the conditions for discrimination in employment, constant stigmatization,
vilification, threats of physical violence and the violation of basic
democratic rights.
2.5 The author observes that numerous "figures of authority" in Tasmania
have made either derogatory or downright insulting remarks about homosexual
men and women over the past few years. These include statements made by
members of the Lower House of Parliament, municipal councillors (such as
"representatives of the gay community are no better than Saddam Hussein" and
"the act of homosexuality is unacceptable in any society, let alone a
civilized society"), of the church and of members of the general public,
whose statements have been directed against the integrity and welfare of
homosexual men and women in Tasmania (such as "[g]ays want to lower society
to their level" and "You are 15 times more likely to be murdered by a
homosexual than a heterosexual ..."). In some public meetings, it has been
suggested that all Tasmanian homosexuals should be rounded up and "dumped"
on an uninhabited island, or be subjected to compulsory sterilization.
Remarks such as these, the author affirms, have had the effect of creating
constant stress and suspicion in what ought to be routine contacts with the
authorities in Tasmania.
2.6 The author further argues that Tasmania has witnessed, and continues to
witness, a "campaign of official and unofficial hatred" against homosexuals
and lesbians. This campaign has made it difficult for the Tasmanian Gay Law
Reform Group to disseminate information about its activities and advocate
the decriminalization of homosexuality. Thus, in September 1988, for
example, the Group was refused permission to put up a stand in a public
square in the city of Hobart, and the author claims that he, as a leading
protester against the ban, was subjected to police intimidation.
2.7 Finally, the author argues that the continued existence of sections 122
(a) and (c) and 123 of the Criminal Code of Tasmania continue to have
profound and harmful impacts on many people in Tasmania, including himself,
in that it fuels discrimination and violence against and harassment of the
homosexual community of Tasmania.
The complaint
3.1 The author affirms that sections 122 and 123 of the Tasmanian Criminal
Code violate articles 2, paragraph 1; 17; and 26 of the Covenant because:
(a) They do not distinguish between sexual activity in private and sexual
activity in public and bring private activity into the public domain. In
their enforcement, these provisions result in a violation of the right to
privacy, since they enable the police to enter a household on the mere
suspicion that two consenting adult homosexual men may be committing a
criminal offence. Given the stigma attached to homosexuality in Australian
society (and especially in Tasmania), the violation of the right to privacy
may lead to unlawful attacks on the honour and the reputation of the
individuals concerned;
(b) They distinguish between individuals in the exercise of their right to
privacy on the basis of sexual activity, sexual orientation and sexual
identity;
(c) The Tasmanian Criminal Code does not outlaw any form of homosexual
activity between consenting homosexual women in private and only some forms
of consenting heterosexual activity between adult men and women in private.
That the laws in question are not currently enforced by the judicial
authorities of Tasmania should not be taken to mean that homosexual men in
Tasmania enjoy effective equality under the law.
3.2 For the author, the only remedy for the rights infringed by sections 122
(a) and (c) and 123 of the Criminal Code through the criminalization of all
forms of sexual activity between consenting adult homosexual men in private
would be the repeal of these provisions.
3.3 The author submits that no effective remedies are available against
sections 122 (a) and (c) and 123. At the legislative level, state
jurisdictions have primary responsibility for the enactment and enforcement
of criminal law. As the Upper and Lower Houses of the Tasmanian Parliament
have been deeply divided over the decriminalization of homosexual activities
and reform of the Criminal Code, this potential avenue of redress is said to
be ineffective. The author further observes that effective administrative
remedies are not available, as they would depend on the support of a
majority of members of both Houses of Parliament, support which is lacking.
Finally, the author contends that no judicial remedies for a violation of
the Covenant are available, as the Covenant has not been incorporated into
Australian law, and Australian courts have been unwilling to apply treaties
not incorporated into domestic law.
The State party's information and observations
4.1 The State party did not challenge the admissibility of the communication
on any grounds, while reserving its position on the substance of the
author's claims.
4.2 The State party notes that the laws challenged by Mr. Toonen are those
of the state of Tasmania and only apply within the jurisdiction of that
state. Laws similar to those challenged by the author once applied in other
Australian jurisdictions but have since been repealed.
The Committee's decision on admissibility
5.1 During its forty-sixth session, the Committee considered the
admissibility of the communication. As to whether the author could be deemed
a "victim" within the meaning of article 1 of the Optional Protocol, it
noted that the legislative provisions challenged by the author had not been
enforced by the judicial authorities of Tasmania for a number of years. It
considered, however, that the author had made reasonable efforts to
demonstrate that the threat of enforcement and the pervasive impact of the
continued existence of these provisions on administrative practices and
public opinion had affected him and continued to affect him personally, and
that they could raise issues under articles 17 and 26 of the Covenant.
Accordingly, the Committee was satisfied that the author could be deemed a
victim within the meaning of article 1 of the Optional Protocol, and that
his claims were admissible ratione temporis.
5.2 On 5 November 1992, therefore, the Committee declared the communication
admissible inasmuch as it appeared to raise issues under articles 17 and 26
of the Covenant.
The State party's observations on the merits and author's comments thereon
6.1 In its submission under article 4, paragraph 2, of the Optional
Protocol, dated 15 September 1993, the State party concedes that the author
has been a victim of arbitrary interference with his privacy, and that the
legislative provisions challenged by him cannot be justified on public
health or moral grounds. It incorporates into its submission the
observations of the government of Tasmania, which denies that the author has
been the victim of a violation of the Covenant.
6.2 With regard to article 17, the Federal Government notes that the
Tasmanian government submits that article 17 does not create a "right to
privacy" but only a right to freedom from arbitrary or unlawful interference
with privacy, and that as the challenged laws were enacted by democratic
process, they cannot be an unlawful interference with privacy. The Federal
Government, after reviewing the travaux préparatoires of article 17,
subscribes to the following definition of "private": "matters which are
individual, personal, or confidential, or which are kept or removed from
public observation". The State party acknowledges that based on this
definition, consensual sexual activity in private is encompassed by the
concept of "privacy" in article 17.
6.3 As to whether sections 122 and 123 of the Tasmanian Criminal Code
"interfere" with the author's privacy, the State party notes that the
Tasmanian authorities advised that there is no policy to treat
investigations or the prosecution of offences under the disputed provisions
any differently from the investigation or prosecution of offences under the
Tasmanian Criminal Code in general, and that the most recent prosecution
under the challenged provisions dates back to 1984. The State party
acknowledges, however, that in the absence of any specific policy on the
part of the Tasmanian authorities not to enforce the laws, the risk of the
provisions being applied to Mr. Toonen remains, and that this risk is
relevant to the assessment of whether the provisions "interfere" with his
privacy. On balance, the State party concedes that Mr. Toonen is personally
and actually affected by the Tasmanian laws.
6.4 As to whether the interference with the author's privacy was arbitrary
or unlawful, the State party refers to the travaux préparatoires of article
17 and observes that the drafting history of the provision in the Commission
on Human Rights appears to indicate that the term "arbitrary" was meant to
cover interferences which, under Australian law, would be covered by the
concept of "unreasonableness". Furthermore, the Human Rights Committee, in
its general comment 16 (32) on article 17, states that the "concept of
arbitrariness is intended to guarantee that even interference provided for
by law should be in accordance with the provisions, aims and objectives of
the Covenant and should be ... reasonable in the particular circumstances".
[FN1] On the basis of this and the Committee's jurisprudence on the concept
of "reasonableness", the State party interprets "reasonable" interferences
with privacy as measures which are based on reasonable and objective
criteria and which are proportional to the purpose for which they are
adopted.
-------------------------------------------------------------------------------------------------------------------------------[FN1]
Official Records of the General Assembly, Forty-third Session, Supplement
No. 40 (A/43/40), annex VI, general comment 16 (32), para. 4.
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6.5 The State party does not accept the argument of the Tasmanian
authorities that the retention of the challenged provisions is partly
motivated by a concern to protect Tasmania from the spread of HIV/AIDS, and
that the laws are justified on public health and moral grounds. This
assessment in fact goes against the National HIV/AIDS Strategy of the
Government of Australia, which emphasizes that laws criminalizing homosexual
activity obstruct public health programmes promoting safer sex. The State
party further disagrees with the Tasmanian authorities' contention that the
laws are justified on moral grounds, noting that moral issues were not at
issue when article 17 of the Covenant was drafted.
6.6 None the less, the State party cautions that the formulation of article
17 allows for some infringement of the right to privacy if there are
reasonable grounds, and that domestic social mores may be relevant to the
reasonableness of an interference with privacy. The State party observes
that while laws penalizing homosexual activity existed in the past in other
Australian states, they have since been repealed with the exception of
Tasmania. Furthermore, discrimination on the basis of homosexuality or
sexuality is unlawful in three of six Australian states and the two
self-governing internal Australian territories. The Federal Government has
declared sexual preference to be a ground of discrimination that may be
invoked under ILO Convention No. 111 (Discrimination in Employment or
Occupation Convention), and has created a mechanism through which complaints
about discrimination in employment on the basis of sexual preference may be
considered by the Australian Human Rights and Equal Opportunity Commission.
6.7 On the basis of the above, the State party contends that there is now a
general Australian acceptance that no individual should be disadvantaged on
the basis of his or her sexual orientation. Given the legal and social
situation in all of Australia except Tasmania, the State party acknowledges
that a complete prohibition on sexual activity between men is unnecessary to
sustain the moral fabric of Australian society. On balance, the State party
"does not seek to claim that the challenged laws are based on reasonable and
objective criteria".
6.8 Finally, the State party examines, in the context of article 17, whether
the challenged laws are a proportional response to the aim sought. It does
not accept the argument of the Tasmanian authorities that the extent of
interference with personal privacy occasioned by sections 122 and 123 of the
Tasmanian Criminal Code is a proportional response to the perceived threat
to the moral standards of Tasmanian society. In this context, it notes that
the very fact that the laws are not enforced against individuals engaging in
private, consensual sexual activity indicates that the laws are not
essential to the protection of that society's moral standards. In the light
of all the above, the State party concludes that the challenged laws are not
reasonable in the circumstances, and that their interference with privacy is
arbitrary. It notes that the repeal of the laws has been proposed at various
times in the recent past by Tasmanian governments.
6.9 In respect of the alleged violation of article 26, the State party seeks
the Committee's guidance as to whether sexual orientation may be subsumed
under the term "... or other status" in article 26. In this context, the
Tasmanian authorities concede that sexual orientation is an "other status"
for the purposes of the Covenant. The State party itself, after review of
the travaux préparatoires, the Committee's general comment on articles 2 and
26 and its jurisprudence under these provisions, contends that there
"appears to be a strong argument that the words of the two articles should
not be read restrictively". The formulation of the provisions "without
distinction of any kind, such as" and "on any ground such as" support an
inclusive rather than exhaustive interpretation. While the travaux
préparatoires do not provide specific guidance on this question, they also
appear to support this interpretation.
6.10 The State party continues that if the Committee considers sexual
orientation as "other status" for purposes of the Covenant, the following
issues must be examined:
(a) Whether Tasmanian laws draw a distinction on the basis of sex or sexual
orientation;
(b) Whether Mr. Toonen is a victim of discrimination;
(c) Whether there are reasonable and objective criteria for the distinction;
(d) Whether Tasmanian laws are a proportional means to achieve a legitimate
aim under the Covenant.
6.11 The State party concedes that section 123 of the Tasmanian Criminal
Code clearly draws a distinction on the basis of sex, as it prohibits sexual
acts only between males. If the Committee were to find that sexual
orientation is an "other status" within the meaning of article 26, the State
party would concede that this section draws a distinction on the basis of
sexual orientation. As to the author's argument that it is necessary to
consider the impact of sections 122 and 123 together, the State party seeks
the Committee's guidance on "whether it is appropriate to consider section
122 in isolation or whether it is necessary to consider the combined impact
of sections 122 and 123 on Mr. Toonen".
6.12 As to whether the author is a victim of discrimination, the State party
concedes, as referred to in paragraph 6.3 above, that the author is actually
and personally affected by the challenged provisions, and accepts the
general proposition that legislation does affect public opinion. However,
the State party contends that it has been unable to ascertain whether all
instances of anti-homosexual prejudice and discrimination referred to by the
author are traceable to the effect of sections 122 and 123.
6.13 Concerning the issue of whether the differentiation in treatment in
sections 122 and 123 is based on reasonable and objective criteria, the
State party refers, mutatis mutandis, to its observations made in respect of
article 17 (paragraphs 6.4 to 6.8 above). In a similar context, the State
party takes issue with the argument of the Tasmanian authority that the
challenged laws do not discriminate between classes of citizens but merely
identify acts which are unacceptable to the Tasmanian community. This,
according to the State party, inaccurately reflects the domestic perception
of the purpose or the effect of the challenged provisions. While they
specifically target acts, their impact is to distinguish an identifiable
class of individuals and to prohibit certain of their acts. Such laws thus
are clearly understood by the community as being directed at male
homosexuals as a group. Accordingly, if the Committee were to find the
Tasmanian laws discriminatory which interfere with privacy, the State party
concedes that they constitute a discriminatory interference with privacy.
6.14 Finally, the State party examines a number of issues of potential
relevance in the context of article 26. As to the concept of "equality
before the law" within the meaning of article 26, the State party argues
that the complaint does not raise an issue of procedural inequality. As
regards the issue of whether sections 122 and 123 discriminate in "equal
protection of the law", the State party acknowledges that if the Committee
were to find the laws to be discriminatory, they would discriminate in the
right to equal protection of the law. Concerning whether the author is a
victim of prohibited discrimination, the State party concedes that sections
122 and 123 do have an actual effect on the author and his complaint does
not, as affirmed by the Tasmanian authorities, constitute a challenge in
abstracto to domestic laws.
7.1 In his comments, the author welcomes the State party's concession that
sections 122 and 123 violate article 17 of the Covenant but expresses
concern that the argumentation of the Government of Australia is entirely
based on the fact that he is threatened with prosecution under the
aforementioned provisions and does not take into account the general adverse
effect of the laws on himself. He further expresses concern, in the context
of the "arbitrariness" of the interference with his privacy, that the State
party has found it difficult to ascertain with certainty whether the
prohibition on private homosexual activity represents the moral position of
a significant portion of the Tasmanian populace. He contends that, in fact,
there is significant popular and institutional support for the repeal of
Tasmania's anti-gay criminal laws, and provides a detailed list of
associations and groups from a broad spectrum of Australian and Tasmanian
society, as well as a detailed survey of national and international concern
about gay and lesbian rights in general and Tasmania's anti-gay statutes in
particular.
7.2 In response to the Tasmanian authorities' argument that moral
considerations must be taken into account when dealing with the right to
privacy, the author notes that Australia is a pluralistic and multi-cultural
society whose citizens have different and at times conflicting moral codes.
In these circumstances it must be the proper role of criminal laws to
entrench these different codes as little as possible; in so far as some
values must be entrenched in criminal codes, these values should relate to
human dignity and diversity.
7.3 As to the alleged violations of articles 2, paragraph 1, and 26, the
author welcomes the State party's willingness to follow the Committee's
guidance on the interpretation of these provisions but regrets that the
State party has failed to give its own interpretation of these provisions.
This, he submits, is inconsistent with the domestic views of the Government
of Australia on these provisions, as it has made clear domestically that it
interprets them to guarantee freedom from discrimination and equal
protection of the law on grounds of sexual orientation. He proceeds to
review recent developments in Australia on the status of sexual orientation
in international human rights law and notes that before the Main Committee
of the World Conference on Human Rights, Australia made a statement which
"remains the strongest advocacy of ... gay rights by any Government in an
international forum". The author submits that Australia's call for the
proscription, at the international level, of discrimination on the grounds
of sexual preference is pertinent to his case.
7.4 Mr. Toonen further notes that in 1994, Australia will raise the issue of
sexual orientation discrimination in a variety of forums: "It is understood
that the National Action Plan on Human Rights which will be tabled by
Australia in the Commission on Human Rights early next year will include as
one of its objectives the elimination of discrimination on the grounds of
sexual orientation at an international level".
7.5 In the light of the above, the author urges the Committee to take
account of the fact that the State party has consistently found that sexual
orientation is a protected status in international human rights law and, in
particular, constitutes an "other status" for purposes of articles 2,
paragraph 1, and 26. The author notes that a precedent for such a finding
can be found in several judgements of the European Court of Human Rights.
[FN2]
-------------------------------------------------------------------------------------------------------------------------------[FN2]
Dudgeon v. the United Kingdom of Great Britain and Northern Ireland,
judgment of 22 October 1981, paras. 64-70; Norris v. Ireland, judgment of 26
October 1988, paras. 39-47; Modinos v. Cyprus, judgment of 22 April 1993,
paras. 20-25.
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7.6 As to the discriminatory effect of sections 122 and 123 of the Tasmanian
Criminal Code, the author reaffirms that the combined effect of the
provisions is discriminatory because together they outlaw all forms of
intimacy between men. Despite its apparent neutrality, section 122 is said
to be by itself discriminatory. In spite of the gender neutrality of
Tasmanian laws against "unnatural sexual intercourse", this provision, like
similar and now repealed laws in different Australian states, has been
enforced far more often against men engaged in homosexual activity than
against men or women who are heterosexually active. At the same time, the
provision criminalizes an activity practised more often by men sexually
active with other men than by men or women who are heterosexually active.
The author contends that in its general comment on article 26 and in some of
its views, the Human Rights Committee itself has accepted the notion of
"indirect discrimination". [FN3]
-------------------------------------------------------------------------------------------------------------------------------[FN3]
The author refers to the Committee's views in case No. 208/1986 (Bhinder v.
Canada), adopted on 9 November 1989, paras. 6.1 and 6.2 (see Official
Records of the General Assembly, Forty-fifth Session, Supplement No. 40
(A/45/40), annex IX.E).
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7.7 Concerning the absence of "reasonable and objective criteria" for the
differentiation operated by sections 122 and 123, Mr. Toonen welcomes the
State party's conclusion that the provisions are not reasonably justified on
public health or moral grounds. At the same time, he questions the State
party's ambivalence about the moral perceptions held among the inhabitants
of Tasmania.
7.8 Finally, the author develops his initial argument related to the link
between the existence of anti-gay criminal legislation and what he refers to
as "wider discrimination", i.e. harassment and violence against homosexuals
and anti-gay prejudice. He argues that the existence of the law has adverse
social and psychological impacts on himself and on others in his situation
and cites numerous recent examples of harassment of and discrimination
against homosexuals and lesbians in Tasmania. [FN4]
-------------------------------------------------------------------------------------------------------------------------------[FN4]
These examples are documented and kept in the case file.
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7.9 Mr. Toonen explains that since lodging his complaint with the Committee,
he has continued to be the subject of personal vilification and harassment.
This occurred in the context of the debate on gay law reform in Tasmania and
his role as a leading voluntary worker in the Tasmanian community welfare
sector. He adds that more importantly, since filing his complaint, he lost
his employment partly as a result of his communication before the Committee.
7.10 In this context, he explains that when he submitted the communication
to the Committee, he had been employed for three years as General Manager of
the Tasmanian AIDS Council (Inc.). His employment was terminated on 2 July
1993 following an external review of the Council's work which had been
imposed by the Tasmanian government, through the Department of Community and
Health Services. When the Council expressed reluctance to dismiss the
author, the Department threatened to withdraw the Council's funding unless
Mr. Toonen was given immediate notice. Mr. Toonen submits that the action of
the Department was motivated by its concerns over his high profile complaint
to the Committee and his gay activism in general. He notes that his
complaint has become a source of embarrassment to the Tasmanian government,
and emphasizes that at no time had there been any question of his work
performance being unsatisfactory.
7.11 The author concludes that sections 122 and 123 continue to have an
adverse impact on his private and his public life by creating the conditions
for discrimination, continuous harassment and personal disadvantage.
Examination of the merits
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, and whether he has been discriminated
against in his right to equal protection of the law, contrary to article 26.
8.2 In so far 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) and (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". [FN5] 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.
-------------------------------------------------------------------------------------------------------------------------------[FN5]
Official Records of the General Assembly, Forty-third Session, Supplement
No. 40 (A/43/40), annex VI, general comment 16 (32), para. 4.
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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 Government of
Australia 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 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.
9. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol to the International Covenant on Civil and Political
Rights, 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, paragraph 3 (a), of the Covenant, the author, as a
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) and (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.
12. The Committee would wish to receive, within 90 days of the date of the
transmittal of its views, information from the State party on the measures
taken to give effect to the views. |
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