Protocol, it noted that the legislative provisions
challenged by the author had not been enforced by
the judicial authorities of Tasmania for a number of
years. It considered, however, that the author had
made reasonable efforts to demonstrate that the
threat of enforcement and the pervasive impact of
the continued existence of these provisions on
administrative practices and public opinion had
affected him and continued to affect him personally,
and that they could raise issues under articles 17
and 26 of the Covenant. Accordingly, the Committee
was satisfied that the author could be deemed a
victim within the meaning of article 1 of the
Optional Protocol, and that his claims were
admissible ratione temporis.
(b)
They distinguish between individuals
in the exercise of their right to privacy on the basis
of sexual activity, sexual orientation and sexual
identity;
(c)
The Tasmanian Criminal Code does
not outlaw any form of homosexual activity between
consenting homosexual women in private and only
some forms of consenting heterosexual activity
between adult men and women in private. That the
laws in question are not currently enforced by the
judicial authorities of Tasmania should not be taken
to mean that homosexual men in Tasmania enjoy
effective equality under the law.
3.2 For the author, the only remedy for the rights
infringed by sections 122 (a) and (c) and 123 of the
Criminal Code through the criminalization of all
forms of sexual activity between consenting adult
homosexual men in private would be the repeal of
these provisions.
5.2 On 5 November 1992, therefore, the
Committee declared the communication admissible
inasmuch as it appeared to raise issues under
articles 17 and 26 of the Covenant.
The State party's observations on the merits and
author's comments thereon
3.3 The author submits that no effective remedies
are available against sections 122 (a) and (c) and 123.
At the legislative level, state jurisdictions have
primary responsibility for the enactment and
enforcement of criminal law. As the Upper and Lower
Houses of the Tasmanian Parliament have been
deeply divided over the decriminalization of
homosexual activities and reform of the Criminal
Code, this potential avenue of redress is said to be
ineffective. The author further observes that effective
administrative remedies are not available, as they
would depend on the support of a majority of
members of both Houses of Parliament, support
which is lacking. Finally, the author contends that no
judicial remedies for a violation of the Covenant are
available, as the Covenant has not been incorporated
into Australian law, and Australian courts have been
unwilling to apply treaties not incorporated into
domestic law.
6.1 In its submission under article 4, paragraph 2,
of the Optional Protocol, dated 15 September 1993,
the State party concedes that the author has been a
victim of arbitrary interference with his privacy, and
that the legislative provisions challenged by him
cannot be justified on public health or moral
grounds. It incorporates into its submission the
observations of the government of Tasmania, which
denies that the author has been the victim of a
violation of the Covenant.
6.2 With regard to article 17, the Federal
Government notes that the Tasmanian government
submits that article 17 does not create a "right to
privacy" but only a right to freedom from arbitrary or
unlawful interference with privacy, and that as the
challenged laws were enacted by democratic process,
they cannot be an unlawful interference with privacy.
The Federal Government, after reviewing the travaux
préparatoires of article 17, subscribes to the
following definition of "private": "matters which are
individual, personal, or confidential, or which are kept
or removed from public observation". The State party
acknowledges that based on this definition,
consensual sexual activity in private is encompassed
by the concept of "privacy" in article 17.
The State party's information and observations
4.1 The State party did not challenge the
admissibility of the communication on any grounds,
while reserving its position on the substance of the
author's claims.
4.2 The State party notes that the laws challenged
by Mr. Toonen are those of the state of Tasmania
and only apply within the jurisdiction of that state.
Laws similar to those challenged by the author once
applied in other Australian jurisdictions but have
since been repealed.
6.3 As to whether sections 122 and 123 of the
Tasmanian Criminal Code "interfere" with the
author's privacy, the State party notes that the
Tasmanian authorities advised that there is no policy
to treat investigations or the prosecution of offences
under the disputed provisions any differently from
the investigation or prosecution of offences under
the Tasmanian Criminal Code in general, and that
the most recent prosecution under the challenged
provisions dates back to 1984. The State party
The Committee's decision on admissibility
5.1 During its forty-sixth session, the Committee
considered the admissibility of the communication.
As to whether the author could be deemed a "victim"
within the meaning of article 1 of the Optional
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