Download PDFDate Introduced: 21 September 1994
House: House of Representatives
Portfolio: Attorney-General
Commencement: Royal Assent
Purpose
The long title of the Bill alleges that its purpose is 'to implement Australia's international obligations under Article 17 of the International Covenant on Civil and Political Rights'. In fact the purpose of the Bill is only to implement a limited category of Australia's obligations under article 17, being those that relate to sexual conduct involving consenting adults acting in private.
Background
In 1980 Australia ratified the International Covenant on Civil and Political Rights ('ICCPR'). The ICCPR contains many basic human rights, such as the right to life, liberty and freedom from torture, the right to freedom of expression, thought and conscience, the right to privacy and the right to equality before the law. Article 2 provides that parties to the ICCPR undertake to respect and to ensure to all individuals within their territories, the rights recognised in the ICCPR, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Article 2 also obliges parties to take legislative or other necessary measures to give effect to the rights in the ICCPR where they are not already provided for by existing legislative or other measures. Finally, it obliges parties to provide any person whose rights under the ICCPR have been violated, with an effective remedy.
When Australia ratified the ICCPR, it did not implement its terms in legislation, on the basis that existing Australian law provides sufficient protection for individuals. There is, of course, no express legislative right to freedom of speech, privacy, equality before the law, or many of the other rights recognised in the ICCPR. Accordingly there is often no effective domestic remedy for Australians when their rights under the ICCPR are breached, contrary to the requirements of article 2.
In 1991 Australia acceded to the First Optional Protocol to the ICCPR. This meant that Australians could now complain directly to the United Nations Human Rights Committee if they considered that their rights under the ICCPR had been breached. A complaint can only be made after the individual has exhausted all domestic remedies.
On the day on which the First Optional Protocol came into effect in Australia, Mr Nick Toonen communicated a complaint to the UN Human Rights Committee claiming that sections 122 and 123 of the Tasmanian Criminal Code breach his right to privacy under article 17 of the ICCPR and his right to equality before the law under article 26. The relevant parts of sections 122 and 123 provide:
122. Any person who -
(a) has sexual intercourse with any person against the order of nature;... or
(c) consents to a male person having sexual intercourse with him or her against the order of nature,
is guilty of a crime.
123. Any male person who, whether in public or private, commits any indecent assault upon, or other act of gross indecency with, another male person, or procures another male person to commit any act of gross indecency with himself or any other male person, is guilty of a crime.
As there was no Australian law implementing his right to privacy under the ICCPR, there was no legal domestic remedy available, and therefore Mr Toonen's communication went directly to the UN Human Rights Committee, without having to be considered by an Australian court.
On 8 April 1994 the UN Human Rights Committee published its view upholding his complaint and finding that Australia is in breach of its obligations under article 17. 1 Article 17 provides:
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.
The Committee also found that Mr Toonen was entitled to an effective remedy, according to article 2, and that 'an effective remedy would be the repeal of sections 122(a), (c) and 123 of the Tasmanian Criminal Code.' 2
The Tasmanian Government has declined to repeal the relevant sections, so the Commonwealth Government has introduced this Bill with the intention of providing a remedy for the specific circumstances of Mr Toonen, rather than a general
implementation of article 17.
Main Provisions
Clause 4 partially implements article 17 of the ICCPR by providing that a law of the Commonwealth, a State or a Territory shall not subject certain types of sexual conduct to 'any arbitrary interference with privacy' within the meaning of article 17. The sexual conduct to which the clause relates is 'sexual conduct involving only consenting adults acting in private'.
Limitations
Clause 4 is subject to a number of limitations. It only relates to ' sexual conduct involving consenting adults acting in private'. The first and most obvious limitation is that it applies solely to 'sexual conduct'. It does not contain a wider right to privacy, as exists under article 17. The fact that 'conduct' is stipulated indicates that general discrimination on the basis of sexual orientation does not fall within the section. It is 'sexual conduct' which must be subject to arbitrary interference, before the section is activated. It is doubtful whether a law which discriminated against homosexuals generally, such as by not giving them access to the same social security benefits as married people, would be considered to be an interference with privacy in sexual conduct.
A second limitation is the reference to 'consent'. The clause does not relate to non-consensual activity such as rape, or cases where a person is incapable of consenting, such as the severely mentally disabled.
Third, the reference to 'adults' is clarified in sub-clause 4(2) which states that for the purposes of the section an adult is a person who is 18 years old or more. The section, therefore, does not apply to sexual conduct between an adult and a person under the age of 18, or two or more people under 18.
Finally, the reference to 'acting in private' means that the section would not affect laws concerning gross indecency in a public place, that exist in most jurisdictions.
Arbitrary
The other substantive part of clause 4 is the reference to 'any arbitrary interference with privacy within the meaning of Article 17 of the International Covenant on Civil and Political Rights'. This leads to the question of what is 'arbitrary'? English courts have defined the word 'arbitrarily' to mean 'without reasonable cause'. 3 In Australia, in the case of Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd, Mason J., with whom the rest of the High Court agreed, concluded that:
'arbitrarily' connotes 'unreasonably' in the sense that what was done was done "without reasonable cause'. 4
In determining the meaning of 'arbitrary' in clause 4, the clause instructs that it must be interpreted 'within the meaning of Article 17' of the ICCPR. The United Nations Human Rights Committee has offered the following general comment on the meaning of 'arbitrary' in article 17:
In the Committee's view the expression 'arbitrary interference' can also extend to interference provided for under the law. The introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances. 5
The Human Rights Committee expanded upon the meaning of 'arbitrary' in its Toonen decision, where it again characterised it in terms of 'reasonableness', and observed:
The Committee interprets the requirement of reasonableness to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case. 6
Although the High Court would not be bound by the UN Human Rights Committee's interpretation of 'arbitrary', and would have to make its own interpretation of 'arbitrary' within the context of article 17, the court precedents appear to be in accord with the Committee's interpretation, so it is unlikely that there would be any divergence on the test to determine what is 'arbitrary'. The more difficult question is how this test will be applied by the High Court. In the Toonen case the UN Human Rights Committee concluded that the Tasmanian laws were not a reasonable or proportionate means of achieving the aim of preventing the spread of HIV/AIDS, and were not reasonably necessary for the protection of morals. Although it is most probable that the High Court would come to the same conclusion, there is no absolute guarantee that this will be the case, so it is still a possibility (albeit remote), that clause 4 will not have the effect of overriding the impugned Tasmanian laws, leaving Mr Toonen without his 'effective remedy' and leaving Australia in continuing breach of its international legal obligations.
Further questions arise as to how this test of 'arbitrariness' would apply to other laws which may interfere with sexual conduct between consenting adults in private. While it is most likely that laws relating to incest would be considered reasonable and proportionate, and therefore not 'arbitrary', there may be more doubt as to whether laws regulating prostitution would always be considered to be proportionate and reasonable in the circumstances.
Another difficult question is whether a higher age of consent for homosexual acts is an arbitrary interference with privacy. This question was addressed by the European Court of Human Rights, in the 1982 case of Dudgeon. 7 While the Court decided by a majority of fifteen to four, that laws criminalising homosexual acts in Northern Ireland breached the similar right to privacy under the European Convention on Human Rights, it did not find that the higher age of consent of twenty-one years was a breach of privacy. The Court noted that laws preventing exploitation and corruption amongst young people are justifiable, and it is up to the relevant national government to legislate to provide appropriate protection. In Western Australia the age of consent for the sexual penetration of a male by another male is 21 years, whereas the age of consent for all other sexual activity is 16 years. As a challenge to the Western Australian law is likely to be brought before the High Court, it will be up to the Court to decide whether such a high age of consent is an arbitrary interference with privacy in relation to sexual conduct.
Interference
A further uncertainty which arises from clause 4 is what constitutes an 'interference' with privacy in relation to sexual conduct. Is the mere existence of a law which criminalises homosexual acts an 'interference' with private sexual conduct, even when no prosecution or investigation has been undertaken? In the Toonen case, the UN Human Rights Committee concluded that such a law did amount to 'interference' because there was no guarantee that actions would not be brought in the future. The High Court would, of course, have to make its own assessment of whether the mere existence of such a law constitutes 'interference'. If the Court held that it did not constitute interference, and the Tasmanian Director of Public Prosecutions chose not to initiate any prosecutions, then the Tasmanian law would not be overridden by clause 4, and would remain 'in effect' (though unused).
Constitutional basis
The Commonwealth Parliament has no direct power to legislate in relation to privacy. In this case the Commonwealth is relying on its external affairs power under s. 51(xxix) of the Constitution to support the legislation.
It is well established that a law which implements an international treaty to which Australia is a party, is a law in relation to external affairs. 8 The Bill, however, does not fully implement the whole of the ICCPR or even the whole of article 17. The question then arises whether its partial implementation of article 17 is sufficient to attract the support of the external affairs power.
In the Franklin Dam case a number of judges observed that legislation implementing a treaty under the external affairs power need not implement the whole of the treaty. 9 However, the legislation must be reasonably considered to be appropriate or conducive to the performance of the object of the treaty. 10 As Professor Zines has pointed out, if the legislation were to implement an exception or proviso to general provisions, when the general provisions were not implemented, then such a law may not be supported by the external affairs power. 11
Although clause 4 is much narrower than article 17 of the ICCPR, it does not detract from the obligations under the article, or from the overall purpose of the Convention, and therefore it is most unlikely that any challenge to its constitutional validity on this basis would succeed. 12
Comments
In recent years criticism has been made by a number of members of Parliament that the High Court is making judgments on political questions. This Bill will actually oblige the Court to make judgments on political questions, by requiring it to determine whether or not a State law is an 'arbitrary' interference with privacy. In doing so the Court will have to consider whether the law is reasonable or proportionate to the end sought. This will be particularly difficult to determine when the ends sought are based on concepts of morality. In effect, the Parliament has abrogated its responsibility to decide such questions and left it for the High Court to determine.
Endnotes
1. For more detail about the Toonen decision see Twomey, A., 'Strange Bedfellows: The UN Human Rights Committee and the Tasmanian Parliament', Current Issues Brief No. 6 1994, Parliamentary Research Service.
2. Toonen v Australia, Communication No. 488/1992, UN Doc. CCPR/C/50/D/488/1992.
3. Quinion v Horne [1906] 1 Ch. 596, 603-4; Mills v Cannon Brewery Co. [1920] 2 Ch. 38, 45.
4. (1979) 144 CLR 596, 609.
5. General Comment 16, Thirty-second session, 1988: Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN. Doc. HRI/GEN/1, 4 September 1992: pp. 20-21.
6. Toonen v Australia, Communication No. 488/1992, UN. Doc. CCPR/C/50/D/488/1992, 4 April 1994: p. 11.
7. Judgment No. 45 (22/10/81): Yearbook (1981) 444.
8. R v Burgess; Ex parte Henry (1936) 55 CLR 608; Koowarta v Bjelke Petersen (1982) 153 CLR 168; Commonwealth v Tasmania (1983) 158 CLR 1.
9. (1983) 158 CLR 1, per Murphy J. at 172; per Brennan J. at 233-4; and per Deane J. at 268.
10. (1983) 158 CLR 1, per Brennan J. at 232; see also Murphy J. at 172 and Deane J. at 259.
11. Zines, L., The High Court and the Constitution, 3rd ed., Butterworths, 1992: 249.
12. Even if clause 4 were not considered appropriate or conducive to the object of the ICCPR, the Bill may still be valid as a response to a matter of international concern: R v Burgess; Ex parte Henry (1936) 55 CLR 608, per Evatt and McTiernan JJ. at 687; and Commonwealth v Tasmania (1983) 158 CLR 1, per Murphy J. at 171-2; Mason J. at 234; and Deane J. at 259.
Anne Twomey (Ph. 06 277 2432)
Bills Digest Service 23 September 1994
Parliamentary Research Service
This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Commonwealth of Australia 1994.
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Published by the Department of the Parliamentary Library, 1994.