Toonen V. Australia - Australian Federal and State Response

Australian Federal and State Response

In its response, the federal government of Australia conceded that Toonen had been a victim of arbitrary interference with his privacy, that he was personally and actually affected by the laws challenged by him, and that the laws could not be justified on public health or moral grounds, but noted that government of Tasmania denied that he had been the victim of a violation of the Covenant. The federal government noted that, while the state pointed out that no prosecutions or investigations had been made under the relevant Sections since 1984, the risk of prosecution or investigation remained.

The government of Tasmania argued that the retention of the Sections in question was justified and partly motivated by an effort to stem the spread of HIV/AIDS in the state, and that the laws were further justified on moral grounds; the federal government did not accept either claim, noting that laws against homosexuality in all other parts of Australia had been repealed, and that discrimination on the basis of sexuality was unlawful in three of six Australian states and the two self-governing internal Australian territories.

The federal government requested the Committee's guidance in interpreting whether sexual orientation could be subsumed under the term "... or other status" in article 26, requiring examination of the issues of:

• whether Tasmanian laws drew a distinction on the basis of sex or sexual orientation;
• whether Toonen was a victim of discrimination;
• whether there were reasonable and objective criteria for the distinction; and
• whether Tasmanian laws were a proportional means to achieve a legitimate aim under the Covenant.