Editors --- "Gay Rights Victory at UN - II" [1994] HRightsDef 2; (1994) 3 Human Rights Defender

Gay Rights Victory at UN

For the first time the UN's Human Rights Committee has supported the rights of people suffering discrimination based on sexual preference.

Sarah Pritchard continues her article on the decision of the UN Human Rights Committee finding that Australia is in breach of its international obligations in Tasmania.

Readers will recall that the decision was made on the grounds of privacy not discrimination. In this section she deals with the dissenting opinion of committee member Wennergren (who thought it was discrimination and so primarily in violation of article 26), privacy versus equality rights and the prospects for gay law reform in Tasmania.

Individual Opinion of Committee Member Wennergren
In an individual opinion, Committee Member Bertil Wennergren indicated that he did not share the view that it was unnecessary to consider whether there was a violation of article 26. In his opinion, a finding of a violation of article 17 should be deduced from a violation of article 26.

Wennergren concurred with the view that the reference to "sex" in articles 2, paragraph 1, and 26 should be taken as including sexual orientation. This being so, the criminalisation of certain behaviour under the Tasmanian Criminal Code should be considered incompatible with article 26. Wennergren noted that the prohibition of sexual intercourse between men and between women involved a distinction between heterosexuals and homosexuals which set aside the principle of equality before the law. The principle of equality before the law was also set aside by the criminalisation of other sexual contacts between consenting men without at the same time criminalising such contacts between women.

Wennergren considered the discriminatory criminal legislation to be incompatible with the Covenant, as it limited the right to equality before the law. The criminalisation interfered with privacy to an unjustifiable extent and therefore also constituted a violation of article 17.

Privacy vs. Equality Rights
In the first views adopted by the Human Rights Committee on a communication submitted by an Australian citizen, all Committee Members were of the opinion that an effective remedy would be that sought by the author, the repeal of the disputed sections of the Tasmanian Criminal Code. The Committee adopted a flexible approach in considering the admissibility of the communication. It accepted the author's submission that there were no effective domestic remedies available for the alleged violations of the ICCPR. It was also satisfied that Nicholas Toonen could be considered a victim within the meaning of article 1 of the Optional Protocol. Although he had not been charged pursuant to the disputed provisions, Mr. Toonen was able to demonstrate that the threat of enforcement and the impact of their continued existence on administrative practices and public opinion affected him personally.

In considering the merits of Mr. Toonen's communication, the Committee was more cautious. In particular, a majority of Committee Members preferred to conceptualise the decriminalisation of homosexuality as an issue of privacy rather than of equality for gay men and lesbians. The Human Rights Committee was primarily concerned with the private location in which criminalised sexual activity takes place and not with the fundamental nature of the choice involved. The views adopted by the Committee contain no positive statements on equality before the law, the equal protection of the law or equal and effective protection against discrimination on the ground of sexual orientation. Instead, sexual orientation is relegated to the realm of private morality. The location of gay and lesbian sexual orientation in the private domain doesn't really challenge the notion that homosexuality is immoral.1 It simply affirms that the State has no role regulating what takes place there.

Ultimately, the decriminalisation of gay male sex does not contribute much to securing the public rights of gay men and lesbians. It may be that that the conceptual framework of privacy rights can be stretched to accommodate protection against some forms of sexual orientation discrimination, for example, the rights of gay men and lesbians to equal treatment in employment, accommodation and the provisions of goods and services. The utility of privacy rights in offering protection against non-recognition of partnerships, discrimination against existing and prospective parents and attempts to control and repress expressions of gay and lesbian identity in public2 is likely to be more limited.

The message which emanates from the Committee's decision in the case of Nicholas Toonen is thus one of "limited tolerance"3, rather than recognition of equality. This result may disappoint some activists for gay and lesbian rights. Given the different cultural and legal backgrounds of individual Committee members, it is perhaps not surprising. Despite the limitations of the approach it adopted on the facts of Nicholas Toonen's case, the Human Rights Committee also stated clearly that the proscription of discrimination in articles 2, paragraph 1, and 26 of the ICCPR includes sexual orientation discrimination. As a small step in the struggle for the recognition and protection of gay and lesbian rights in all spheres of life, the recognition by the Human Rights Committee of privacy rights in respect of male homosexual sexual activity is to be welcomed.

Prospects for gay law reform in Tasmania
Contrary to what some commentators have recently suggested, the Optional Protocol imposes no new human rights obligations on Australia. Neither do the views adopted by the Human Rights Committee pursuant to the Optional Protocol amount to unacceptable interference in Australia's domestic affairs. The international community has accepted that human rights standards, and particularly those binding on States by virtue of their treaty obligations, are a legitimate issue for consideration at the international level.

The implications of the decision of the Human Rights Committee in Toonen's case for gay law reform in Tasmania may depend ultimately upon the tenacity of the federal government's adherence to a system of cooperative federalism. Although the federal government is internationally responsible for violations of the Covenant under the Protocol, Toonen's case concerns the actions of the State of Tasmania. In the context of the Optional Protocol, the principle of cooperative federalism has meant cooperative arrangements with the States and Territories to implement the processes of the Optional Protocol and to ensure compliance with the Committee's views. Clearly, the principle of cooperative federalism can only secure conformity with international obligations where States and Territories are inclined to engage in a cooperative exercise with the federal government. In the case of Nicholas Toonen, the Tasmanian government has avowed to disregard the decision of the Human Rights Committee. Those active in the struggle for gay law reform will have to persuade the federal government to abandon its commitment to cooperate with States which do not respect fundamental human rights and to rely instead on its external affairs power4to legislate to ensure proper compliance with the ICCPR's obligations.

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1. See Charlesworth H., "Equality and Non-Discrimination under the Optional Protocol", unpublished paper delivered at a symposium on "Internationalising Human Rights Protection in Australia: Australia's Accession to the First International Protocol to the International Covenant on Civil and Political Rights", Law School, University of Melbourne, 10 December 1991, 6; see also Croome, R., Australian Gay Rights Case goes to the United Nations, (1992) 2 Australian Gay and Lesbian Law Journal 55, 59.

2. See generally Croome, R., "Out and About": The Public Rights of Lesbians and Gays in Tasmania, (1992) 2 Australian Gay and Lesbian Law Journal 63.

3. See Wintemute R., "Sexual Orientation Discrimination", in McCrudden C. and Chambers G. (eds), Individual Rights and the Law (1994), 491 at 522.

4. Australian Constitution, S.51 (29).