Greenleaf, Graham --- "Toonen v Australia" [1994] PrivLawPRpr 33; (1994) 1(3) Privacy Law & Policy Reporter 50

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TOONEN v AUSTRALIA

United Nations Human Rights Committee (Views on Communication, No 488/1992, adopted 31 March 1994)

International Covenant on Civil and Political Rights, art 17 - optional protocol, art 5 - privacy and sexual orientation - Tasmanian Criminal Code

Toonen (T), an Australian citizen and resident of Tasmania, is an activist for the rights of homosexuals. He claimed s122(a) and (c) and s123 of the Tasmanian Criminal Code, which criminalise all sexual contact between consenting male adults in private, breached various Articles of the International Covenant on Civil and Political Rights (ICCPR). He submitted a communication as author and victim against Australia (the State party) to the UN Human Rights Committee, under art 5 of the optional protocol to the ICCPR.

T claimed that the Tasmanian provisions breached the ICCPR because (a) their enforcement violates the right to privacy, as it brings private sexual activity into the public domain; (b) ''they distinguish between individuals in the exercise of their right to privacy' on the basis of sexual activity, orientation or identity; and (c) they discriminate between homosexual men and women.

The Committee unanimously held:

1. T was a ''victim' within the meaning of art 1 of the optional protocol, despite the fact that the Tasmanian provisions had not been enforced for a number of years, because the threat of enforcement and impact of the continuing existence of the provisions on administrative practices and public opinion affected him personally.

2. T had no effective domestic remedy, because Australian courts will not provide a remedy for breaches of the ICCPR as part of domestic law. No ''administrative' remedy was available, as support from the necessary parliamentary majority to have the Tasmanian Parliament repeal the legislation was lacking.

The Committee first considered art 17(1) which provides in part ''No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence'.

3. ''Adult consensual sexual activity in private is covered by the concept of "privacy", and ... [T] is actually and currently affected by the continuing existence of the Tasmanian law.' The Tasmanian provisions therefore ''interfere' with T's privacy.

4. The interference was ''arbitrary'. The Committee has previously noted that the ''introduction of the concept of arbitrariness is intended to guarantee that even interferences 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' (General Comment 15(32) on art 17, Doc CCPR/c/21/Rev1, 19 May 1989). The Committee here ''interprets the requirement of reasonableness to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case'.

The Tasmanian government's argument that the laws were ''reasonable' as justified on public health and moral grounds were rejected, both as to the claim that they were a means of preventing the spread of HIV/AIDS, and as to the claim that moral issues must be deemed a matter for domestic concern. Australia, as State party, accepted that the laws were arbitrary.

5. T was therefore a victim of an ''arbitrary interference with his privacy', contrary to art 17(1).

6. An effective remedy would be the repeal of the Tasmanian provisions.

The Committee (Mr Wennengren dissenting) did not consider it necessary to consider whether there has also been a violation of art 26 (equal protection before the law without discrimination).

The Committee expects to receive within 90 days information from Australia, as State party, on the measures taken to give effect to these views.

Comment

Toonen is an important decision in a number of respects. It confirms that sexual conduct in private is within the meaning of ''privacy' in the ICCPR, but that is not surprising, though important. More generally, as a complaint decided on the basis of the privacy protection provided by art 17, and the first complaint that an individual has made against Australia under the optional protocol, it gives important guidance as to how other privacy issues might be brought before the Committee. It appears that the requirements of a ''victim' and a lack of an effective domestic remedy will usually not prove to be impediments. Most importantly, interferences with privacy which are sanctioned by existing laws (for example, data-matching or other data surveillance laws) will not be immune from complaints of ''arbitrary' (though not unlawful) interference with privacy. The elastic concepts of ''unreasonable', ''proportional' and ''necessary' give potential scope for a wide range of complaints.

In the absence of an Australian Bill of Rights, the ICCPR provides the only avenue through which individual Australians can attack interferences of privacy which have legislative sanction. The ICCPR is also the only international agreement concerning privacy to which Australia is a party and which has enforcement provisions (the OECD Guidelines do not).

Australian Attorney-General Michael Lavarch has stated that, while the Committee's views do not have the force of law in Australia, ''the government takes seriously its obligations under the Covenant', and that ''all Australian governments ... have a corporate responsibility to ensure Australia's record on human rights is not tarnished internationally as a result of a particular law within a jurisdiction'. He has called on the Tasmanian government to amend the laws in question, and warned that, if necessary, the Commonwealth government would exercise the foreign affairs power to override the Tasmanian government. The Committee's view would form part of the government's argument (in the inevitable High Court challenge by Tasmania) that this was a proper exercise of the foreign affairs power

Graham Greenleaf