Decision
The Committee found that adult consensual sexual activity in private is covered by the concept of "privacy," and that Toonen was affected by the continued existence of the Tasmanian laws, which continuously and directly interfered with his privacy, despite their lack of recent enforcement.
The Committee noted that "the criminalization of homosexual practices cannot be considered a reasonable means or proportionate measure to achieve the aim of preventing the spread of AIDS/HIV," further noting that "The Australian Government observes that statutes criminalizing homosexual activity tend to impede public health programmes by driving underground many of the people at the risk of infection."
The Committee found that the Sections did not meet the "reasonableness" test in the circumstances of the case, and that they arbitrarily interfered with Toonen's right under article 17, paragraph 1.
As regards the guidance sought by the Australian government as to whether sexual orientation may be considered an "other status" for the purposes of article 26, the Committee found the reference to "sex" in article 26 is to be taken as including sexual orientation.
The Human Rights Committee therefore found that the facts before it revealed a violation of articles 17, paragraph 1, juncto 2, paragraph 1, of the Covenant. The author was entitled to a remedy under article 2(3)(a) of the Covenant, and the opinion of the Committee was that an effective remedy would be the repeal of Sections 122(a), (c) and 123 of the Tasmanian Criminal Code, and requested a response from the Federal government in 90 days.
Read more about this topic: Toonen V. Australia
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