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 It noted that all other Australian states had repealed homosexuality offences and that criminalisation hindered rather than helped anti-AIDS campaigns.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