CASE STUDY: TOONEN VS.

AUSTRALIA (1994)
By Linh Thi Nhat Nguyen and Phuong Ngoc Dan Nguyen
1. Introduction
Unlike other case studies in International and European Law which are conducted
based on conflict or confratation between states, the case so-called Toonen versus Australia is
definitely different. Accordingly, this case happened between an individual in regard to
against his state. The author, Nicholas Toonen, is an Australian citizen as well as residing in
Tasmania which is one of constitutive state of Australia. Additionally, he is a homosexual
man and also a leading member of the Tasmania Gay Law Reform Group in his attempted to
fight for the rights of LGBT community. In 1991, he submitted his case to the United Nations
Human Rights Committee concerning the fact that he was violated his rights of homosexual
and sex orientation as well by Tasmanian Law and Australian Law in general. As a
consequence, after he brought the case to the court, he lost his job as General Manager of the
Tasminian AIDS Council due to the threatening of Tasmanian Goverment for that council.
Until 1994, the UN Human Rights Committee finally made a decision to the case that the
author was a victim of discrimination by Tasmanian Government also Australia.
2. Discussion
2.1.Facts during the case
To be more precise, the author argued that the Tasmanian Criminal Code, namely
Sections 122 (a) and (c) and 123 probably infringed on his rights to privacy also
homosexuality. Furthermore, he believed that those provisions also violated Article 2,
paragraph 1, Article 17 and 26 of International Covenant on Civil and Political Rights
(ICCPR) [CITATION Wen19 \l 1066 ]. Specifically, the author was accused of having contacts
between men, in other words, he was found guilty in having sex with consenting adult
homosexual in private. At the time the case happening, homosexual men were being
stigmatised by Tasmanian Government also Australia. That causes an injustice for
homosexual men under Tasmanian Law, which is criminalize all forms of contacts happening
with people in the same gender, notably homosexual men. Moreover, Toonen was violated
seriously his private life when the Tasmanian Goverment allowed the police to enter his house
without any announcement just because he was suspected of having contacts with other
consenting adult homosexual man in private. Under Article 17 of the ICCPR, the action of
Tasmanian police was unacceptable cause “no one shall be subjected arbitrary or unlawful
interference with his privacy”[ CITATION OHC191 \l 1066 ]. That also drives a fact that
homosexual men in Tasmania was experienced lots of violations of their privacy as well as
their honour due to discrimination, even their contacts with each other only happen in private,
not public. Besides, the author realized that those sections of Tasmanian Criminal Code does
not figure out any prohibition of homosexual activity between consenting homosexual women
in private. It was inequable for homosexual consenting men if their contacts would be
considered as a criminal offence by law. Thus, under Article 2, paragraphs 1 and Article 26 of
ICCPR, that “all persons are equal before the law” and all individuals are being “respected
and ensured without distinction of any kind, such as race, colour, sex”; Toonen also all
homosexual men must be enjoyed the respect equally with the other [ CITATION OHC192 \l
1066 ]. No matter what the gender is, people can have the rights to choose their partner, their
sex orientation also sexual activity and sexual identity. Certainly, UN Human Rights
Committee as a monitor compliance and adjudication of violence according to the ICCPR,
considers that punishing homosexual behavior between consenting adults violates the
principles of anti-discrimination protection in ICCPR. In genenral, Section 122 (a) and (c) and
123 of Tasmanian Criminal Code violated Article 2, 17 and 26 of the ICCPR.
2.2.International Law and Treaties related to the case
Basically, not only the author but also all human beings in this world are definitely
protected under International Law. Particularly, according to the case, Toonen was
discriminated just because he is a homosexual man and his different sexual orientation. In this
manner, the author could not enjoy the rights that every human being deserves which called
human rights. It can be said that human rights is one of basis rights and it’s attached to a
person. No matter what nationality is, place of residence, gender, color, religion, or ethinicity
and so on, every human being also Toonen can be protected by human rights [ CITATION
OHC19 \l 1066 ]. On the other hand, two basic human rights are mentioned obviously in the
international treaties that related to the case are the right to not be discriminated and equal
rights. Still, that are both human rights and the fundamental principles of the International
Human Rights Law.
Firstly, the principle of non-discrimination is seen as one of the fundamental principles
of human rights that mentioned in some international documents such as Universal
Declaration of Human Rights 1948 (UDHR), International Covenant on Civil and Political
Rights 1966 (ICCPR) and International Covenant on Economic, Social and Cultural Rights
1966 (ICESCR). The first non-discrimination principle is confirmed in the UDHR.
Specifically, Article 1 of the UDHR affirms: “Everyone is born free and equal in dignity and
rights”; Article 2 of the UDHR also stipulates: “Everyone is entitled to all rights and
freedom… without distinction of any kind, such as race, colour, sex, language,… or other
status” [ CITATION Uni19 \l 1066 ]. These above principles are repeated and specified in
Article 2 of the ICCPR and Article 2 of the ICESCR. Accordingly, member states are
committed to respecting and ensuring the rights recognized in the ICCPR and ICESCR to
everyone within their territory and jurisdiction without any discrimination of the race, colour,
gender or any other status [ CITATION OHC193 \l 1066 ]. The list of discriminatory grounds
prohibited in UDHR, ICCPR and ICESCR is incluđe in the non-discrimination guarantee
provisions. Although these categories do not explicitly mention sexual orientation or sexual
identity, they conclude with the phrase “or any other status”. Therefore, the use of phrase
“any other status” indicates that this category is open and illustrative. This means that
discrimination grounds are still not listed. In other words, discrimination based on sexual
orientation and gender identity are not clearly listed. However, in the case of Toonen versus
Australia in 1994, the Human Rights Commission recognized that the laws governing
homosexual behavior in consenting adults have violated the principles of anti-discrimination
protection in ICCPR. Particularly, the Human Rights Commission declares that the mention
of sex in Article 2, paragraph 1 and Article 26 of ICCPR is construed to include sexual
orientation [ CITATION Ber19 \l 1066 ].
Then, along with the principle of non-discrimination is the principle of equality.
Article 7 of the UDHR stipulates that everyone is equal before the law and is protected
equally by law without any discrimination [ CITATION Uni191 \l 1066 ]. Also, the ICCPR
reaffỉrms the above priciple in Article 26, and also states that in this respect, the law must
prohibit all discrimination and ensure that everyone is equally protected and effective against
discrimination in terms of race, color, gender [ CITATION OHC194 \l 1066 ]. Therefore,
stemming from the two fundamental priciples of non-discrimination and equality in the
International Human Rights Law, it can be seen that everyone with different sexual
orientation and sexual identity has the same status of being a person under the law and having
full rights of human being in all aspects of life. Also, in the Declaration and Programme of
Action adopted at the Second Conference on Human Rights in Vienna, Austria in 1993, the
rights to choose a spouse, the right to equality in marriage and family life, the right not to be
abused and exploited about sex are again mentioned and emphasized [ CITATION OHC195 \l
1066 ].
 Nevertheless, this is the case between an individual and a state, also the jurisdiction is
UN Human Rights Committee, so it drives a question that how can an international committee
can intervenve to solve and protect the rights of a person in that state. Before 1991, it was not
easy for an individual against his state or Australia particulary under international law. In fact,
in 1991, Australia finally agreed to be bound by the First Optional Protocol to the ICCPR. To
be more precise, the ICCPR has two optional protocol. The First Optional Protocol was
adopted by the UN General Assembly on 1996 and entered into force in 1976. Still, it did not
come to force in Australia only until 1991 [ CITATION Aus19 \l 1066 ]. The event means that
the UN Human Rights can hear complaints from individuals and interfere to protect and fight
for their rights when they notice that Australia Government has violated their rights under the
ICCPR. For this reason, the case Toonen brought to the court was the very first
communication to against Tasmanian Goverment also Australia in general under the First
Optional Protocol of the ICCPR.
2.3.Arguments
LGBT people were classified as vulnerable groups. The concept of vulnerable groups
is widely used in international legal documents and in research activities and human rights
practice in the world. Although no general formal definition is given about vulnerable groups,
but from human rights and material resources, it can be understood that this concept refers to
groups and communities have lower political, social or economic status, thereby making them
more at risk of being neglected or violated human rights, and therefore, need special attention
with other groups and communities. Currently, in the world, homosexuality can be seen as a
phenomenon that is not unfamiliar in many ways. Stigma, the discrimination of Western
people towards this gender community has been more pronounced in a positive way. Even
though gay people certainly have to go through longer struggle periods, in fact, their
perception is much clearer and more popular than the Eastern countries. This has been
demonstrated by the fact that there are more and more countries that allow same-sex marriage
and improve the system of gay rights (especially civil rights of same-sex couples).
Termination of discrimination in civil marriage approaches has become a pressing issue in
many countries. At the present time, the following countries have recognized same-sex
marriage: The Netherlands (Law on same-sex marriage issued in 2001), Belgium
(promulgating the Law on same-sex marriage in 2003), Spain ( year of adoption: 2005),
Canada (year passed: 2005), South Africa (year passed: 2006), Norway (year passed: 2008),
Sweden (2009), Portugal (2010), Iceland (2010), Argentina (July 15, 2010, is the first country
in Latin America region to recognize), Brazil (2011), United States (Massachusetts states,
Connecticut, Iowa, Vermont, ... and most recently is New York City recognized in June
2011).
In general, homosexuals are not really protected by the legal policy system and in
addition some of their basic freedoms are still violated. In society, often those who are pushed
into disadvantaged groups can see inequality, though more or less in many ways. For
homosexual issues in particular and the group of vulnerable people in general, there are
common points that are normal, not many people mention but if there is an outstanding event
related to their equality in society then nature will become the "focal point", receiving the
attention of most social classes. However, to "focus" or interest in this long-term existence,
develop into a wave of support or not depends on many factors.
The struggle for gender equality in the world is really long and sometimes costs quite
a bit. The problems related to gender and human rights, especially sensitive issues, are
difficult to achieve the unity of the whole society. But it’s highlighted that, Toonen and
LGBT community does not need a special right, they need equal right. Therefore, equality of
rights means every member in the community all have the opportunity to enjoy the same
rights in these conditions, circumstances, available capacities. Thus, social groups must suffer
disadvantages starting point and the need for specific rights to achieve real equality with other
groups in enjoying human rights.
2.4.
Under Article 2, paragraph 1, Article 17 and 26 of the ICCPR, the author, Nicholas
Toonen who is a victim of a violation of discrimination is entitled to a remedy. Also,
according to UN Human Rights Committe, Section 122 (a), (c) and 123 of the Tasmanian
Criminal Code would be repealed and reconsidered according to its national context. After the
case of Toonen, there are a lot of efforts of international community regarding the rights of
LGBT commnunity and sexual orientation. That are reflected in the many struggles as well as
more conference and laws for LGBT commnuity as a vulnerable group. Some special
documents can be mentioned as Discriminatory laws and practices and acts of violence
against individuals based on their sexual orientation and gender identity (2011), Joint
Statement on ending acts of violence and related human rights violations based on sexual
orientation and gender identity (2011), Born Free and Equal - Sexual Orientation and Gender
Identity in International Human Rights Law, Yogyakarta Principles (2007), and The UN
perspective on sexual orientation, gender identity and rights of homosexual, bisexual and
transgender people.
3. Conclusion
To sum up, LGBT is a controversial issue in the field of human rights in recent
decades. LGBT rights advocates have created organizations to launch global movements to
advocate for the legalization of the rights to marry among same-sex people; rights of male gay
couples to adopt children; and above all, the rights of all LGBT people who are not
discriminated against due to their sexual orientation and gender. On the other hand, from the
case of Toonen versus Australia in 1994 is also open to a new pathway and hope for LGBT
community in bring their fair to legal and been protected as a normal human. At least, LGBT
community can enjoy the efftective equality under International Law. But still, homosexuality
are not really protected by the legal policy system in general and in addition some of their
basic freedom are still violated.
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