or downright insulting remarks about homosexual
men and women over the past few years. These
include statements made by members of the Lower
House of Parliament, municipal councillors (such as
"representatives of the gay community are no better
than Saddam Hussein" and "the act of homosexuality
is unacceptable in any society, let alone a civilized
society"), of the church and of members of the
general public, whose statements have been directed
against the integrity and welfare of homosexual men
and women in Tasmania (such as "[g]ays want to
lower society to their level" and "You are 15 times
more likely to be murdered by a homosexual than a
heterosexual ..."). In some public meetings, it has
been suggested that all Tasmanian homosexuals
should be rounded up and "dumped" on an
uninhabited island, or be subjected to compulsory
sterilization. Remarks such as these, the author
affirms, have had the effect of creating constant
stress and suspicion in what ought to be routine
contacts with the authorities in Tasmania.
1.
The author of the communication is Nicholas
Toonen, an Australian citizen born in 1964, currently
residing in Hobart in the state of Tasmania, Australia.
He is a leading member of the Tasmanian Gay Law
Reform Group and claims to be a victim of violations
by Australia of articles 2, paragraph 1; 17; and 26 of
the International Covenant on Civil and Political
Rights.
The facts as submitted by the author
2.1 The author is an activist for the promotion of
the rights of homosexuals in Tasmania, one of
Australia's six constitutive states. He challenges
two provisions of the Tasmanian Criminal Code,
namely, sections 122 (a) and (c) and 123, which
criminalize various forms of sexual contact
between men, including all forms of sexual contact
between consenting adult homosexual men in
private.
2.2 The author observes that the above sections of
the Tasmanian Criminal Code 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) and (c) and 123 would be initiated if there
was sufficient evidence of the commission of a
crime.
2.6 The author further argues that Tasmania has
witnessed, and continues to witness, a "campaign of
official and unofficial hatred" against homosexuals
and lesbians. This campaign has made it difficult for
the Tasmanian Gay Law Reform Group to
disseminate information about its activities and
advocate the decriminalization of homosexuality.
Thus, in September 1988, for example, the Group was
refused permission to put up a stand in a public square
in the city of Hobart, and the author claims that he, as
a leading protester against the ban, was subjected to
police intimidation.
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) and
(c) and 123 of the Criminal Code.
2.7 Finally, the author argues that the continued
existence of sections 122 (a) and (c) and 123 of the
Criminal Code of Tasmania continue to have
profound and harmful impacts on many people in
Tasmania, including himself, in that it fuels
discrimination and violence against and harassment
of the homosexual community of Tasmania.
The complaint
3.1 The author affirms that sections 122 and 123
of the Tasmanian Criminal Code violate articles 2,
paragraph 1; 17; and 26 of the Covenant because:
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) and (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.
(a)
They do not distinguish between sexual
activity in private and sexual activity in public and
bring private activity into the public domain. In their
enforcement, these provisions result in a violation of
the right to privacy, since they enable the police to
enter a household on the mere suspicion that two
consenting adult homosexual men may be
committing a criminal offence. Given the stigma
attached to homosexuality in Australian society (and
especially in Tasmania), the violation of the right to
privacy may lead to unlawful attacks on the honour
and the reputation of the individuals concerned;
2.5 The author observes that numerous "figures of
authority" in Tasmania have made either derogatory
134
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