Toonen v. Australia

[1] The case resulted in the repeal of Australia's last sodomy laws when the Committee held that sexual orientation was included in the antidiscrimination provisions as a protected status under the International Covenant on Civil and Political Rights (ICCPR).

[2][3] In 1991, Toonen complained to the Human Rights Committee that Tasmanian laws criminalising consensual sex between adult males in private were a violation of his right to privacy under Article 17 of ICCPR; distinguished between people on the basis of sexual activity, sexual orientation and identity in violation of Article 26; and meant that gay men in Tasmania were unequal before the law.

The Campaign Against Moral Persecution during the 1970s raised the profile and acceptance of Australia's gay and lesbian communities, and other states and territories repealed their laws between 1976 and 1990.

According to Toonen's submission to the committee, the laws: 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), (c) and 123 would be initiated if there was sufficient evidence of the commission of a crime.

"[10] Toonen further complained that Tasmanian "figures of authority" (such as members of the Lower House of Parliament; 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 Saddam Hussein"; "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".

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.

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 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.

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: 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.

"[10] 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.

[14] This case law Toonen v. Australia is also referred to by the Declaration of Montreal,[15] and a report of UN High Commissioner for Human Rights on sexual orientation and gender identity.