In a landmark case on the rights of LGBTQI people, Nicholas Toonen, an Australian citizen, challenged Sections 122 (a) and (c) and 123 of the Tasmanian Criminal Code, which criminalised various forms of sexual contact between men. Toonen affirmed that these provisions contravened Articles 2(1) (non-discrimination), 17(1) (right to privacy) and 26 (equality before the law) of the International Covenant on Civil and Political Rights.
Toonen’s complaint was brought against Australia to the UN’s Human Rights Committee in 1991 and was considered in 1994. He argued that the provisions empowered Tasmanian police officers to investigate intimate aspects of his private life. Whilst the police had not charged anyone with these offences in many years, Toonen arguments included that, due to his circumstances, particularly as a gay rights activist, his private life and liberty were threatened by the existence of the provisions.
Toonen further alleged that the criminalisation of homosexuality in private created conditions for discrimination in employment, constant stigmatization, vilification, threats of physical violence and the violation of basic democratic rights.
In the complaint, Toonen affirmed that Sections 122 and 123 of the Tasmanian Criminal Code violated the Covenant because:
- 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.
- They distinguish between individuals in the exercise of their right to privacy on the basis of sexual activity, sexual orientation and sexual identity.
- 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.
Considering the merits, the Committee considered that Sections 122 (a) and (c) and 123 of the Tasmanian Criminal Code interfered with the Toonen’s privacy under Article 17 of the Covenant, despite the fact they were not implemented. The Committee rejected the Tasmanian authorities’ argument that criminalisation was justified on public health. The Committee concluded that the provisions do not meet the ‘reasonableness’ test in the circumstances of the case, and that they arbitrarily interfered with Toonen’s right under Article 17.
Turning to Articles 2 and 26, the Committee stated that the reference to ‘sex’ is taken to be taken as including sexual orientation.
Since the Committee found a violation of Toonen’s rights under Article 17, it did not consider it necessary to decide whether there was also a violation of Article 26 of the Covenant.
The Committee held an effective remedy would be the repeal of Sections 122(a) and (c) and 123 of the Tasmanian Criminal Code.
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