Anti-gay laws and the right to privacy


What is the Government's role in your love life? As privacy law reform is in the news these days, I was interested to see reference to a famous decision in the '90s which raised just this question.

Late last month, Navi Pillay, the UN Human Rights Commissioner, went on YouTube to recall the Human Rights Committee's 1994 ruling in Toonen v. Australia and its impact on gay rights. It raised thorny questions that keep cropping up in various contexts. What is the state's role in moral issues and what are the limits of privacy?

Australia is a party to the International Covenant on Civil and Political Rights (ICCPR). Although it has not incorporated it into domestic law, it has signed up to an international Human Rights Committee which hears claims of breaches of the ICCPR and recommends redress.

Nicholas Toonen, a gay-rights activist, challenged Tasmanian laws (ss. 122 and 123 of the Tasmanian Criminal Code) criminalising homosexual acts, including private ones, between consenting men. (The Code did not criminalise homosexual acts between women.)

Although Toonen had not been prosecuted, he argued that the law contributed to a toxic climate for gay men and led to harassment of himself and others by the authorities. His complaint to the Committee saw him fired from an AIDS awareness group because the Tasmanian Government threatened to withdraw funding if he stayed.

Toonen claimed that the law was an 'arbitrary interference with [his] privacy' (prohibited by Art. 17 of the ICCPR) and that he was being discriminated against because of his 'sex' or 'other status' (contrary to Art. 26).

Tasmania's view was that homosexuality was a public health issue as it led to HIV/AIDS and that any interference with Toonen's privacy was therefore justified. Anyway, it argued, the ICCPR was not intended to stop states regulating moral issues.

Although the Federal Government was the formal party to the proceedings, it hardly barracked enthusiastically for Tasmania's cause. It noted that all other Australian states had repealed homosexuality offences and that criminalisation hindered rather than helped anti-AIDS campaigns.

The moral question is particularly difficult. Since many legal issues also engage moral ones, the Committee had no difficulty deciding that the ICCPR applied to 'moral issues'. However, it then had to balance Toonen's privacy against a government's rights to enforce public morals.

Toonen's argument was that Australia is a multicultural society with multiple moral codes; the state could not prefer one over another. This looks like an argument for moral relativism. If so, there was some irony about it. The ICCPR, to which Toonen looked for relief, itself embodies particular moral standards, including most of the classic civil and political rights recognised in various countries since the 18th century.

On the other hand, there is a real question about Government intervention in private conduct which only affects consenting parties. As the Committee noted, the offences did not distinguish private from public conduct. Is it the business of a government to police sex in private homes between consenting adults? And if so, why only between men?

Toonen was correct in arguing that the moral code reflected in the sections was not shared by all Tasmanians. The offences were the source of division in the state with periodic calls for repeal to bring Tasmanian law into line with that in other states. The Tasmanian Government acknowledged that a prosecution had not been brought since 1982. This made the Committee doubtful about its claim that the offences were 'essential' to protect public morals.

As a result, the Committee held that the moral arguments were insufficient to outweigh Toonen's Art. 17 rights to privacy, particularly since the law did not appear to be effective as a public health measure. The privacy finding meant it did not need to decide whether there had been discrimination.

This was a landmark — the first ruling by a global body that laws criminalising homosexuality violated the ICCPR. Tasmania eventually abolished the relevant offences and the decision has laid a basis for subsequent jurisprudence.

Australia is currently considering whether it needs to tighten privacy laws, in the wake of the hacking scandals in the UK. The question about what a 'right to privacy' means in practice and how legislation can or should affect such a right makes it timely to revisit the Toonen case.

It remains a good illustration of the deeper questions about the balance between state power and competing moral claims which face anyone who considers issues of human rights. 

Justin GlynJustin Glyn SJ is a first year Jesuit scholastic studying theology and philosophy in Melbourne. He previously practised law in South Africa and New Zealand. He completed a PhD in international and administrative law in 2008.

Topic tags: Justin Glyn, privacy laws, toonen v. australia, homosexuality, tasmania, sodomy laws



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Existing comments

Very interesting, and well explained.
Am I being too cynical if I suggest that Australia's commitment to the ICCPR (and other international onventions) is largely symbolic, and that there are a number of areas where Australian law seems significantly out-of-step with the ideals Australia espouses?

MBG | 08 August 2011  

Yes, once again, the temple police will start voyeurising about what 'other' people are doing with their genitals

AURELIUS | 08 August 2011  

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