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Human Rights Defender |
For the first time the UN's Human Rights Committee has supported the rights of people suffering discrimination based on sexual preference. However, as Sarah Pritchard reports, the decision is a weak one, finding the violation of rights occurs in relation to privacy not discrimination.
It is clear that the Human Rights Committee could not, in this case, bring itself to allow gay men into the human family in full possession of human rights.
The subsequent reaction in Australia by conservative politicians underlines, the tenuous understanding and support human rights have in this country.
Decision of the UN Human Rights committtee in Tasmanian Gay Law Reform
Case
On 25 December 1991, the First Optional Protocol to the International Covenant
on Civil and Political Rights (ICCPR) entered into force for Australia.
In becoming a party to the Optional Protocol, Australia recognised the
competence of the Human Rights Committee to receive and consider communications
from individuals claiming to be victims of violations of any of the rights
set forth in the ICCPR.
In a communication submitted to the Human Rights Committee on 26 December 1991, Nicholas Toonen, an activist for gay law reform in Tasmania, claimed to be a victim of violations by Australia of certain articles of the ICCPR. The Committee was required for the first time to consider questions relating to sexual orientation discrimination. On 31 March 1994, the Human Rights Committee adopted views on the communication submitted by Toonen.
The complaint
Nicholas Toonen challenged sections 122 (a), (c) and 123 of the Tasmanian
Criminal Code. These criminalise various forms of sexual contacts between
men, including all forms of sexual contacts between consenting adult homosexual
men in private. Toonen submitted that these provisions of the Tasmanian
Criminal Code violate articles 2, paragraph 1, 17 and 26 of the ICCPR.
In article 2 paragraph 1, State parties undertake to respect and to ensure to all individuals the rights recognised in the Covenant without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 17 paragraph 1 provides, amongst other things, that no one shall be subjected to arbitrary or unlawful interference with his privacy. Pursuant to paragraph 2, everyone has the right to the protection of the law against such interference. Article 26 provides that all persons are equal before the law and entitled without discrimination to the equal protection of the law. States undertake to prohibit discrimination and to guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
The challenged provisions of the Tasmanian legislation were said to violate these articles of the ICCPR in three respects: First, they made no distinction between sexual activity in public and in private and thus brought private activity into the public domain. Second, they distinguished between individuals in the exercise of their right to privacy on the basis of sexual activity, sexual orientation and sexual identity. Third, they didn't outlaw homosexual activity between consenting homosexual women in private and outlawed only some forms of consenting heterosexual activity between adult men and women in private.
Admissibility decision
On 5 November 1992 the Human Rights Committee declared Nicholas Toonen's
communication admissible in as much as it appeared to raise issues under
articles 17 and 26 of the Covenant. The Committee considered that Mr. Toonen
could be deemed a victim within the meaning of the Optional Protocol. Although
the impugned legislative provisions had not been enforced for several years,
the author had made reasonable efforts to demonstrate that the threat of
enforcement and the pervasive impact of the continued existence of the
provisions on administrative practices and public opinion had affected
him and continued to effect him personally.
The State party's observations
The Committee was thus required to decide whether Mr. Toonen had been the
victim of an unlawful or arbitrary interference with his privacy, contrary
to article 17, and whether he had been discriminated against in his right
to equal protection of the law, contrary to article 26.
In its submission as State party to the Covenant, the federal government conceded that Toonen had been a victim of arbitrary interference with his privacy and that the Tasmanian legislative provisions could not be justified on public health or moral grounds. The federal government subscribed to a definition of private referring to "matters which are individual, personal, or confidential, or which are kept or removed from public observation." On this definition, consensual sexual activity in private was encompassed by the concept of "privacy" in article 17.
The federal government cautioned that where reasonable grounds exist, the formulation of article 17 may allow for some infringement of the right to privacy and noted that domestic social mores might be relevant to the reasonableness of an interference with privacy. Referring to "a general Australian acceptance that no individual should be disadvantaged on the basis of his or her sexual orientation", the State party did not seek , on balance, to claim that the challenged legislative provisions were based on reasonable and objective criteria.
The government of Australia incorporated into its submission the observations of the government of Tasmania. The Tasmanian government denied that Nicholas Toonen had been the victim of a violation of the Covenant. It argued that article 17 creates not a right to privacy, but only a right to freedom from arbitrary or unlawful interference with privacy. As the challenged provisions were enacted by democratic process, the Tasmanian government did not consider that they could constitute an unlawful interference with privacy. Moreover, they could be justified on public health and moral grounds, as they were intended to prevent the spread of HIV/AIDS and because moral issues must be deemed a matter of domestic concern.
With respect to the alleged violation of article 26, the federal government sought the guidance of the Committee as to whether sexual orientation can be subsumed under the term "... or other status" in article 26.
Whilst the author welcomed the concession that the Tasmanian legislation violated article
17, he regretted the failure of the federal government to provide its own interpretation of the guarantee of freedom from discrimination and equal protection of the law in article 26. Mr. Toonen urged the Committee to take into account the fact that Australia has consistently found sexual orientation to be a protected status in international human rights law and to constitute an "other status" for the purposes of articles 2, paragraph 1, and 26. Mr .Toonen referred also to relevant precedents in decisions of the European Court of Human Rights.
Examination of the merits
The Human Rights Committee first considered whether Mr. Toonen had been
the victim of an unlawful or arbitrary interference with his privacy. The
Committee noted that it was not disputed either that adult consensual sexual
activity is covered by the concept of privacy or that Mr. Toonen was affected
by the existence of the Tasmanian laws. The Committee considered that the
continued existence of the challenged provisions of the Tasmanian Criminal
Code continuously and directly "interfere" with the author's
privacy. The Tasmanian Department of Public Prosecutions' policy of not
initiating proceedings in private homosexual conduct did not amount to
a guarantee that no actions would be brought against homosexuals in the
future.
The Committee noted that the prohibition against private homosexual behaviour was provided for by the law. As to whether it could be deemed arbitrary, the Committee recalled that pursuant to its General Comment on article 17, the concept of arbitrariness was 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."
The Committee interpreted the requirement of reasonableness to require that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case.
It rejected the public health argument of the Tasmanian authorities, noting that the criminalisation of homosexual practices could not be considered a reasonable means or proportionate measure to achieve the aim of preventing the spread of AIDS/HIV. The Committee also rejected the argument that for the purposes of article 17, moral issues are a matter of domestic concern. This would have opened the door to withdrawing from its scrutiny a potentially large number of statutes interfering with privacy.
On the facts before it, the Human Rights Committee found a violation of articles 17, paragraph 1, and article 2, paragraph 1, of the Covenant. Referring to the fact that that the State party had sought guidance on whether sexual orientation is to be considered an "other status" for the purposes of article 26, the Committee confined itself to noting that the reference to "sex" in articles 2, paragraph 1, and 26 should be taken as including sexual orientation. Since it had found a violation of Mr. Toonen's rights under articles 17 and 2, the Committee didn't consider it necessary to consider whether there had also been a violation of article 26.
The Committee considered that an effective remedy would be the repeal of the disputed sections of the Tasmanian Criminal Code and indicated that it would wish to receive information from the State Party within 90 days on measures taken to give effect to its views.
Sarah Pritchard is studying the jurisprudence of human rights at UNSW. She continues her examination of the Human Rights committee's decision in the next issue of the Human Rights Defender, including the dissenting opinion of Committee Member Wennergren, Privacy vs Equality rights and the prospects for gay law reform in Tasmania.