and Health Services. When the Council expressed
reluctance to dismiss the author, the Department
threatened to withdraw the Council's funding unless
Mr. Toonen was given immediate notice. Mr. Toonen
submits that the action of the Department was
motivated by its concerns over his high profile
complaint to the Committee and his gay activism in
general. He notes that his complaint has become a
source of embarrassment to the Tasmanian government,
and emphasizes that at no time had there been any
question of his work performance being unsatisfactory.
Committee
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.
8.4 While the State party acknowledges that the
impugned provisions constitute an arbitrary
interference with Mr. Toonen's privacy, the
Tasmanian authorities submit that the challenged
laws are justified on public health and moral
grounds, as they are intended in part to prevent the
spread of HIV/AIDS in Tasmania, and because, in
the absence of specific limitation clauses in
article 17, moral issues must be deemed a matter for
domestic decision.
7.11 The author concludes that sections 122
and 123 continue to have an adverse impact on his
private and his public life by creating the conditions
for discrimination, continuous harassment and
personal disadvantage.
8.5 As far as the public health argument of the
Tasmanian authorities is concerned, the Committee
notes that the criminalization of homosexual
practices cannot be considered a reasonable means
or proportionate measure to achieve the aim of
preventing the spread of AIDS/HIV. The
Government of Australia observes that statutes
criminalizing homosexual activity tend to impede
public health programmes "by driving underground
many of the people at the risk of infection".
Criminalization of homosexual activity thus would
appear to run counter to the implementation of
effective education programmes in respect of the
HIV/AIDS prevention. Secondly, the Committee
notes that no link has been shown between the
continued criminalization of homosexual activity
and the effective control of the spread of the
HIV/AIDS virus.
Examination of the merits
8.1 The Committee is called upon to determine
whether Mr. Toonen has been the victim of an
unlawful or arbitrary interference with his privacy,
contrary to article 17, paragraph 1, and whether he
has been discriminated against in his right to equal
protection of the law, contrary to article 26.
8.2 In so far as article 17 is concerned, it is
undisputed that adult consensual sexual activity in
private is covered by the concept of "privacy", and
that Mr. Toonen is actually and currently affected by
the continued existence of the Tasmanian laws. The
Committee considers that sections 122 (a) and (c)
and 123 of the Tasmanian Criminal Code "interfere"
with the author's privacy, even if these provisions
have not been enforced for a decade. In this context, it
notes that the policy of the Department of Public
Prosecutions not to initiate criminal proceedings in
respect of private homosexual conduct does not
amount to a guarantee that no actions will be brought
against homosexuals in the future, particularly in the
light of undisputed statements of the Director of
Public Prosecutions of Tasmania in 1988 and those of
members of the Tasmanian Parliament. The continued
existence of the challenged provisions therefore
continuously and directly "interferes" with the
author's privacy.
8.6 The Committee cannot accept either that for
the purposes of article 17 of the Covenant, moral
issues are exclusively a matter of domestic concern,
as this would open the door to withdrawing from the
Committee's scrutiny a potentially large number of
statutes interfering with privacy. It further notes that
with the exception of Tasmania, all laws
criminalizing homosexuality have been repealed
throughout Australia and that, even in Tasmania, it is
apparent that there is no consensus as to whether
sections 122 and 123 should not also be repealed.
Considering further that these provisions are not
currently enforced, which implies that they are not
deemed essential to the protection of morals in
Tasmania, the Committee concludes that the
provisions do not meet the "reasonableness" test in
the circumstances of the case, and that they
arbitrarily interfere with Mr. Toonen's right under
article 17, paragraph 1.
8.3 The prohibition against private homosexual
behaviour is provided for by law, namely,
sections 122 and 123 of the Tasmanian Criminal
Code. As to whether it may be deemed arbitrary, the
Committee recalls that pursuant to its general
comment 16 (32) on article 17, the "introduction of
the concept of arbitrariness is 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".5 The
5
8.7 The State party has sought the Committee's
guidance as to whether sexual orientation may be
considered an "other status" for the purposes of
article 26. The same issue could arise under article 2,
paragraph 1, of the Covenant. The Committee
confines itself to noting, however, that in its view,
See footnote 1.
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