339:"; "the act of homosexuality is unacceptable in any society, let alone a civilized society"; and "you are 15 times more likely to be murdered by a homosexual than a heterosexual". Some had further suggested that all Tasmanian homosexuals should be exiled to an uninhabited island or be subjected to compulsory sterilization. This, claimed Toonen, constituted a "campaign of official and unofficial hatred" against gays and lesbians, and made it difficult for the Tasmanian Gay Law Reform Group to disseminate information about its activities and advocate the decriminalization of homosexuality.
369:(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.
38:
359:, 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.
193:, because the Tasmanian Government threatened to withdraw the council's funding unless Toonen was fired. On 31 March 1994, the Committee agreed that, because of Tasmania's law, Australia was in breach of the obligations under the treaty. In response, the Commonwealth Government passed a law overriding Tasmania's criminalization of gay sex, Australia's last sodomy laws. The
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Wennergren argued that the criminalization of certain behaviours under
Sections 122(a), (c) and 123 of the Tasmanian Criminal Code must be considered incompatible with article 26 of the Covenant (a) made a distinction between heterosexuals and homosexuals, and (b) criminalized sexual contacts between
438:
The
Committee noted 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", further noting that "The Australian Government observes that statutes criminalizing homosexual activity tend
407:
The government of
Tasmania argued that the retention of the Sections in question was justified and partly motivated by an effort to stem the spread of HIV/AIDS in the state, and that the laws were further justified on moral grounds; the federal government did not accept either claim, noting that laws
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The Human Rights
Committee therefore found that the facts before it revealed a violation of articles 17, paragraph 1, juncto 2, paragraph 1, of the Covenant. The author was entitled to a remedy under article 2(3)(a) of the Covenant, and the opinion of the committee was that an effective remedy would
328:" and publicizing his views on law reform as this would have been "prejudicial to his employment", contending that the Sections "created the conditions for discrimination in employment, constant stigmatization, vilification, threats of physical violence and the violation of basic democratic rights."
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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), (c) and 123 would be initiated if there was sufficient evidence
289:
In 1991, Nicholas Toonen, a gay activist, challenged two provisions of the
Tasmanian Criminal Code: Sections 122(a) and (c), and 123, which criminalized all forms of sexual contact between consenting adult men in private, arguing that their continued existence in the Criminal Code of Tasmania had a
467:
The discriminatory criminal legislation at issue here is not strictly speaking "unlawful" but it is incompatible with the
Covenant, as it limits the right to equality before the law. In my view, the criminalization operating under Sections 122 and 123 of the Tasmanian Criminal Code interferes with
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Although in practice the
Tasmanian police had not charged anyone under Section 122 with "unnatural sexual intercourse" or "intercourse against nature", or under Section 123 with "indecent practice between male persons" for several years, Toonen argued that because of his high-profile activism, his
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Committee member Bertil
Wennergren submitted an appendix to the decision, in which he disagreed with the committee's view that it was unnecessary to consider whether there had also been a violation of article 26 of the Covenant. In his opinion, a finding of a violation of article 17, paragraph 1,
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in
Tasmanian schools. Soon a programme was instituted to remove sexuality discrimination entirely from Tasmanian law and official practice. Tourism Tasmania even dedicated resources to promoting the State as a place friendly to gay visitors. For those who knew the whole history, this was truly a
490:, Croome applied to the High Court of Australia for a ruling as to whether the Tasmanian laws were inconsistent with the Federal Human Rights (Sexual Conduct) Act. The Tasmanian Government repealed the relevant Criminal Code provisions after failing in its attempts to have the matter struck out.
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story of amazing Tasmania. Whereas in 1988, support for decriminalisation of homosexuality in this State had been 15% below the national average, by the time decriminalisation occurred in 1997, it was 15% above the average. Indeed, it was reportedly higher in Hobart than in Melbourne or Sydney.
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The Committee found that adult consensual sexual activity in private is covered by the concept of "privacy", and that Toonen was affected by the continued existence of the Tasmanian laws, which continuously and directly interfered with his privacy, despite their lack of recent enforcement.
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denied that he had been the victim of a violation of the Covenant. The federal government noted that, while the state pointed out that no prosecutions or investigations had been made under the relevant Sections since 1984, the risk of prosecution or investigation remained.
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As regards the guidance sought by the Australian government as to whether sexual orientation may be considered an "other status" for the purposes of article 26, the Committee found the reference to "sex" in article 26 is to be taken as including sexual orientation.
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There is no doubt ... that the UNHRC's views in Toonen v Australia, that Tasmania's anti-homosexual laws were in breach of Article 17 of the ICCPR ... led directly to the enactment by the Australian Parliament of legislation rendering those laws ineffective.
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conceded that Toonen had been a victim of arbitrary interference with his privacy, that he was personally and actually affected by the laws challenged by him, and that the laws could not be justified on public health or moral grounds, but noted that the
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privacy to an unjustifiable extent and, therefore, also constitutes a violation of article 17, paragraph 1 ... I share the Committee's opinion that an effective remedy would be the repeal of Sections 122(a), (c) and 123, of the Tasmanian Criminal Code.
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against homosexuality in all other parts of Australia had been repealed, and that discrimination on the basis of sexuality was unlawful in three of six Australian states and the two self-governing internal Australian territories.
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or other vestiges of sodomy laws later began to repeal them: Western Australia did so in 2002, and New South Wales and the Northern Territory did so in 2003. Tasmania decriminalised sodomy in 1997 following the High Court case
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Early leadership was given by the Tasmania Police. It was followed by the Health Department, concerned to respond strongly to HIV/AIDS. An education reference group was established to turn around earlier policy and to combat
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In considering the admissibility of the complaint, the Committee determined that the author (Toonen) could be deemed a victim within the meaning of article 1 of the Optional Protocol, and that his claims were admissible
335:; municipal councillors; clergy and the general public) were known to openly make derogatory remarks about gays and lesbians, including statements such as "representatives of the gay community are no better than
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The federal government requested the committee's guidance in interpreting whether sexual orientation could be subsumed under the term "... or other status" in article 26, requiring examination of the issues of:
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Once standing was given the Tasmanian PLP Government did not wait for a High Court challenge and passed the Criminal Code Amendment Act 1997 which repealed the anti-gay provisions within the Tasmanian Criminal
483:, legalising sexual activity between consenting adults throughout Australia and prohibiting the making of laws that arbitrarily interfere with the sexual conduct of adults in private. In 1997 in the case of
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worker, and his long-term relationship with another man, his private life and liberty were threatened by the continued existence of these laws. He additionally argued that the laws restricted him from
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The Committee found that the Sections did not meet the "reasonableness" test in the circumstances of the case, and that they arbitrarily interfered with Toonen's right under article 17, paragraph 1.
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According to Justice Michael Kirby, in a speech given on the 2004 bicentenary of Tasmania, the changes in law resulted in Tasmania becoming "one of the most enlightened" Australian states:
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Toonen alleged that Sections 122 (a) and (c) and 123 of the Tasmanian Criminal Code violated articles 2(1), 17 and 26 of the International Covenant on Civil and Political Rights because:
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consenting men without at the same time criminalizing such contacts between consenting women, thereby setting aside the principle of equality before the law, in violation of article 26:
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be the repeal of Sections 122(a), (c) and 123 of the Tasmanian Criminal Code, and requested a response from the Federal government in 90 days.
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communities, and other states and territories repealed their laws between 1976 and 1990. The exceptions were Tasmania and Queensland.
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to impede public health programmes by driving underground many of the people at the risk of infection."
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introduced a "consenting adults in private" defence in 1972. This defence was initiated as a bill by
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empower Tasmanian police officers to investigate intimate aspects of his private life and to
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under Article 17 of ICCPR; distinguished between people on the basis of sexual activity,
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Toonen further complained that Tasmanian "figures of authority" (such as members of the
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whether Tasmanian laws drew a distinction on the basis of sex or sexual orientation;
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whether there were reasonable and objective criteria for the distinction; and
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As a result of his complaint, Toonen lost his job as General Manager of the
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should rather have been deduced from a finding of violation of article 26.
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similarly decriminalised private sexual acts between males by passing the
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679:"Towards Homosexual Equality in Australian Criminal Law: A Brief History"
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resident Nicholas Toonen in 1994. The case resulted in the repeal of
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The remedy requested by Toonen was the repeal of these provisions.
351:(a) they do not distinguish between sexual activity in private and
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profound and harmful impact on many Tasmanian people by fueling
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According to Toonen's submission to the committee, the laws:
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According to Nick Poynder in a public lecture presented at
684:(2nd ed.). Australian Lesbian and Gay Archives Inc.
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and identity in violation of Article 26; and meant that
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Androgen Insensitivity Syndrome Support Group Australia
611:. Castan Centre for Human Rights Law, Monash University
584:"Australia:Policies to 'Defend Marriage' Harm Families"
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and the Northern Territory in 1984. In December 1989,
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Map of Australia highlighting the location of Tasmania
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International Covenant on Civil and Political Rights
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Gay Law Reform in Australian States and territories
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768:"Human Rights (Sexual Conduct) Act 1994 - Sect 4"
695:Law Reform (Decriminalization of Sodomy) Act 1989
377:Decision regarding admissibility of the complaint
270:Law Reform (Decriminalisation of Sodomy) Act 1989
1340:United Nations Human Rights Committee case law
1269:Kaleidoscope Australia Human Rights Foundation
1126:Re Kevin – validity of marriage of transsexual
748:. University of Minnesota Human Rights Library
419:whether Toonen was a victim of discrimination;
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186:men in Tasmania were unequal before the law.
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848:. High Court of Australia. Archived from
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1254:Coalition of Activist Lesbians Australia
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819:Commons Librarian (22 December 2023).
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241:, father of former Defence Minister
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795:Australian Journal of Human Rights
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1155:Sydney Gay and Lesbian Mardi Gras
903:University of Minnesota Libraries
825:The Commons Social Change Library
821:"Campaigns that Changed Tasmania"
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1218:Joy 94.9 Melbourne radio station
1057:Marriage Equality Act 2013 (ACT)
770:. Commonwealth Consolidated Acts
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951:LGBT rights and laws
586:. Human Rights Watch
56:improve this article
1133:Toonen v. Australia
852:on 21 November 2008
530:Toonen v. Australia
144:Toonen v. Australia
1148:Culture and events
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850:the original
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54:Please help
49:verification
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856:20 December
774:3 September
752:20 December
662:20 December
637:20 December
615:20 December
590:20 December
243:Robert Hill
239:Murray Hill
165:sodomy laws
155:(UNHRC) by
1314:Categories
1264:Equal Love
1052:in the ACT
981:Queensland
544:References
521:homophobia
488:v Tasmania
205:See also:
82:newspapers
27:Court case
503:Melbourne
343:Complaint
216:Australia
171:(ICCPR).
161:Australia
157:Tasmanian
1032:Marriage
1010:By topic
996:Victoria
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959:By state
905:website)
901:(at the
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296:violence
258:Victoria
163:'s last
1198:SX News
1119:Re Alex
1085:History
1037:History
830:6 April
800:25 June
721:AustLII
247:lesbian
176:privacy
96:scholar
1047:Survey
486:Croome
473:Result
307:detain
195:Toonen
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807:Code.
682:(PDF)
656:(PDF)
103:JSTOR
89:books
858:2008
832:2024
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754:2008
664:2008
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617:2008
592:2008
570:2019
321:AIDS
209:and
75:news
501:in
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317:HIV
184:gay
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