## Facts

- Nicholas Toonen, a Tasmanian resident and gay rights advocate, challenged provisions of Tasmania’s Criminal Code that criminalized sexual activity between consenting adult men, including in private.
- The laws authorized investigation of suspected conduct and exposed Toonen to potential arrest, detention, and prosecution, notwithstanding a lack of recent prosecutions.
- Tasmania’s Director of Public Prosecutions publicly stated that prosecutions would be brought if sufficient evidence existed.
- Toonen alleged the laws caused ongoing fear and stigma and enabled discrimination and harassment, including adverse employment consequences linked to his public profile.
- Toonen filed an individual communication against Australia under the Optional Protocol to the ICCPR, alleging violations of ICCPR arts. 2(1), 17, and 26; Australia argued non-exhaustion of domestic remedies and lack of victim status due to non-enforcement.
- The U.N. Human Rights Committee found the communication admissible and considered the merits.

## Issues

1. Whether criminalizing consensual adult male sexual activity in private constitutes an unlawful or arbitrary interference with privacy under ICCPR art. 17.
2. Whether the challenged provisions discriminate contrary to ICCPR arts. 2(1) and 26, including whether “sex” includes sexual orientation.
3. Whether asserted aims of protecting public health (including HIV/AIDS prevention) or public morals justify the interference with privacy.

## Decision

- The Committee found that the Tasmanian provisions interfered with privacy under ICCPR art. 17 even without recent prosecutions because their continued existence directly and continuously affected Toonen and enabled investigation into intimate private conduct.
- The Committee held the interference was “arbitrary” under art. 17 because restrictions must be reasonable, necessary, and proportionate, and the criminal prohibitions failed that test.
- The Committee rejected public health justifications, concluding criminalization was not a reasonable or proportionate means to prevent HIV/AIDS and could hinder effective prevention and education efforts.
- The Committee rejected public morals justifications because morals-based limitations still must satisfy reasonableness and proportionality, which was not met here.
- On discrimination, the Committee stated that “sex” in ICCPR arts. 2(1) and 26 includes sexual orientation and viewed the differential criminalization of male homosexual conduct as incompatible with the Covenant.
- The Committee concluded Australia was obligated to provide an effective remedy and ensure Tasmanian law conformed to the ICCPR; federal structure did not limit national responsibility for compliance.

## Legal Principles

- Consensual adult sexual activity in private falls within “privacy” protected by ICCPR art. 17.
- Laws may constitute an interference with privacy by their existence and credible threat of enforcement, even absent frequent prosecutions.
- “Arbitrary” interference under art. 17 includes lawful measures that are unreasonable; restrictions must be necessary and proportionate to a legitimate aim.
- Criminalization of consensual adult same-sex conduct is not justified under art. 17 by generalized claims of public health or public morals where necessity and proportionality are not shown.
- “Sex” in ICCPR arts. 2(1) and 26 includes sexual orientation, bringing sexual-orientation discrimination within the Covenant’s non-discrimination and equality guarantees.
- A state party remains responsible for Covenant compliance across all subnational jurisdictions within a federal system.

## Conclusion

The U.N. Human Rights Committee held that Tasmania’s criminal prohibitions on consensual adult male sex in private violated ICCPR art. 17 and affirmed that the ICCPR’s “sex” non-discrimination guarantees include sexual orientation, requiring Australia to provide an effective remedy and bring state law into conformity with the Covenant.


Toonen v. Australia, Comm. No. 488/1992, U.N. Doc. CCPR/C/50/D/488/1992 (Hum. Rts. Comm. 1994)