Toonen v. Australia

Toonen v Australia was a landmark human rights complaint brought before the United Nations Human Rights Committee (UNHRC) by Tasmanian resident Nicholas Toonen in 1994.

Toonen complained that Tasmanian laws criminalising consensual sex between adult males in private were a violation of his right to privacy; distinguished between people on the basis of sexual activity, sexual orientation and identity; and meant that gay men in Tasmania were unequal before the law.

On March 31, 1994, the UNHRC found that the Tasmanian laws interfered with Toonen’s right to privacy under article 17(1) of the International Covenant on Civil and Political Rights (ICCPR). The Committee recommended that the laws be repealed.

Sodomy laws in Australia

Australia inherited the United Kingdom's sodomy laws on colonisation in 1788. These were retained in the criminal codes passed by the various colonial parliaments during the 19th century, and by the state parliaments after Federation.

Following the Wolfenden report, the Dunstan Labor government introduced a "consenting adults in private" defence in South Australia in 1972. This defence was initiated as a bill by Murray Hill, father of former Defence Minister Robert Hill, and repealed the state's sodomy law in 1975. 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1970s raised the profile and acceptance of Australia's gay and lesbian communities, and other states and territories repealed their laws between 1976 and 1990. The exception was Tasmania.

Male homosexuality was decriminalised in South Australia in 1975, and in the Australian Capital Territory in 1976, followed by New South Wales and the Northern Territory in 1984. Western Australia legalised male homosexuality in 1989 under the Law Reform (Decriminalization of Sodomy) Act 1989. The states and territories that retained different ages of consent 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 was the last state to decriminalise sodomy, doing so in 1997 following the cases Toonen v Australia and Croome v Tasmania.

Background to the case

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.

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.

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), (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), (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.

In response to the Tasmanian Parliament’s refusal to repeal the offending laws, the Federal government passed the Human Rights (Sexual Conduct) Act, which prohibits the making of laws that arbitrarily interfere with the sexual conduct of adults in private. In 1997 in the case of Croome v Tasmania, the High Court of Australia struck down the Tasmanian laws on the grounds that they were inconsistent with the Federal Human Rights (Sexual Conduct) Act.