party, inaccurately reflects the domestic perception
of the purpose or the effect of the challenged
provisions. While they specifically target acts, their
impact is to distinguish an identifiable class of
individuals and to prohibit certain of their acts. Such
laws thus are clearly understood by the community
as being directed at male homosexuals as a group.
Accordingly, if the Committee were to find the
Tasmanian laws discriminatory which interfere with
privacy, the State party concedes that they constitute
a discriminatory interference with privacy.
restrictively". The formulation of the provisions
"without distinction of any kind, such as" and "on
any ground such as" support an inclusive rather than
exhaustive interpretation. While the travaux
préparatoires do not provide specific guidance on
this question, they also appear to support this
interpretation.
6.10 The State party continues that if the
Committee considers sexual orientation as "other
status" for purposes of the Covenant, the following
issues must be examined:
6.14 Finally, the State party examines a number of
issues of potential relevance in the context of
article 26. As to the concept of "equality before the
law" within the meaning of article 26, the State party
argues that the complaint does not raise an issue of
procedural inequality. As regards the issue of whether
sections 122 and 123 discriminate in "equal protection
of the law", the State party acknowledges that if the
Committee were to find the laws to be discriminatory,
they would discriminate in the right to equal
protection of the law. Concerning whether the author
is a victim of prohibited discrimination, the State
party concedes that sections 122 and 123 do have an
actual effect on the author and his complaint does not,
as affirmed by the Tasmanian authorities, constitute a
challenge in abstracto to domestic laws.
(a)
Whether Tasmanian laws draw a
distinction on the basis of sex or sexual orientation;
(b)
Whether Mr. Toonen is a victim of
discrimination;
(c)
Whether there are reasonable and
objective criteria for the distinction;
(d)
Whether Tasmanian laws are a
proportional means to achieve a legitimate aim under
the Covenant.
6.11 The State party concedes that section 123 of
the Tasmanian Criminal Code clearly draws a
distinction on the basis of sex, as it prohibits sexual
acts only between males. If the Committee were to
find that sexual orientation is an "other status" within
the meaning of article 26, the State party would
concede that this section draws a distinction on the
basis of sexual orientation. As to the author's
argument that it is necessary to consider the impact
of sections 122 and 123 together, the State party
seeks the Committee's guidance on "whether it is
appropriate to consider section 122 in isolation or
whether it is necessary to consider the combined
impact of sections 122 and 123 on Mr. Toonen".
7.1 In his comments, the author welcomes the
State party's concession that sections 122 and 123
violate article 17 of the Covenant but expresses
concern that the argumentation of the Government of
Australia is entirely based on the fact that he is
threatened
with
prosecution
under
the
aforementioned provisions and does not take into
account the general adverse effect of the laws on
himself. He further expresses concern, in the context
of the "arbitrariness" of the interference with his
privacy, that the State party has found it difficult to
ascertain with certainty whether the prohibition on
private homosexual activity represents the moral
position of a significant portion of the Tasmanian
populace. He contends that, in fact, there is
significant popular and institutional support for the
repeal of Tasmania's anti-gay criminal laws, and
provides a detailed list of associations and groups
from a broad spectrum of Australian and Tasmanian
society, as well as a detailed survey of national and
international concern about gay and lesbian rights in
general and Tasmania's anti-gay statutes in
particular.
6.12 As to whether the author is a victim of
discrimination, the State party concedes, as referred
to in paragraph 6.3 above, that the author is actually
and personally affected by the challenged provisions,
and accepts the general proposition that legislation
does affect public opinion. However, the State party
contends that it has been unable to ascertain whether
all instances of anti-homosexual prejudice and
discrimination referred to by the author are traceable
to the effect of sections 122 and 123.
6.13 Concerning the issue of whether the
differentiation in treatment in sections 122 and 123
is based on reasonable and objective criteria, the
State party refers, mutatis mutandis, to its
observations made in respect of article 17
(paragraphs 6.4 to 6.8 above). In a similar context,
the State party takes issue with the argument of the
Tasmanian authority that the challenged laws do not
discriminate between classes of citizens but merely
identify acts which are unacceptable to the
Tasmanian community. This, according to the State
7.2 In response to the Tasmanian authorities'
argument that moral considerations must be taken
into account when dealing with the right to privacy,
the author notes that Australia is a pluralistic and
multi-cultural society whose citizens have different
and at times conflicting moral codes. In these
circumstances it must be the proper role of criminal
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