Toonen V. Australia - Background To The Case

Background To The Case

In 1993, Nicholas Toonen, a gay activist, challenged two provisions of the Tasmanian Criminal Code: Sections 122(a) and (c), and 123, which criminalized all forms of sexual contact between consenting adult men in private, arguing that their continued existence in the Criminal Code of Tasmania had a profound and harmful impact on many Tasmanian people by fueling discrimination, harassment, and violence against gay and lesbian Tasmanians.

According to Toonen's submission to the Committee, the laws

empower Tasmanian police officers to investigate intimate aspects of his private life and to detain him, if they have reason to believe that he is involved in sexual activities which contravene the above sections. He adds that the Director of Public Prosecutions announced, in August 1988, that proceedings pursuant to Sections 122(a), (c) and 123 would be initiated if there was sufficient evidence of the commission of a crime.

Although in practice the Tasmanian police had not charged anyone under Section 122 with "unnatural sexual intercourse" or "intercourse against nature," or under Section 123 with "indecent practice between male persons" for several years, Toonen argued that because of his high-profile activism, his activities as an HIV/AIDS worker, and his long-term relationship with another man, his private life and liberty were threatened by the continued existence of these laws. He additionally argued that the laws restricted him from "openly exposing his sexuality" and publicizing his views on law reform as this would have been "prejudicial to his employment," contending that the Sections "created the conditions for discrimination in employment, constant stigmatization, vilification, threats of physical violence and the violation of basic democratic rights."

Toonen further complained that Tasmanian "figures of authority" (such as members of the Lower House of Parliament; municipal councillors; clergy and the general public) were known to openly make derogatory remarks about gays and lesbians, including statements such as "representatives of the gay community are no better than Saddam Hussein"; "the act of homosexuality is unacceptable in any society, let alone a civilized society"; and "you are 15 times more likely to be murdered by a homosexual than a heterosexual". Some had further suggested that all Tasmanian homosexuals should be exiled to an uninhabited island or be subjected to compulsory sterilization. This, claimed Toonen, constituted a "campaign of official and unofficial hatred" against gays and lesbians, and made it difficult for the Tasmanian Gay Law Reform Group to disseminate information about its activities and advocate the decriminalization of homosexuality.