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Greenleaf, Graham --- "Human Rights (Sexual Conduct) Bill 1994" [1994] PrivLawPRpr 97; (1994) 1(7) Privacy Law & Policy Reporter 121

Human Rights (Sexual Conduct) Bill 1994

Graham Greenleaf

The Australian Government introduced the Human Rights (Sexual Conduct) Bill 1994 into Federal Parliament on 21 September, in response to the decision of the United Nations Human Rights Committee in Toonen v Australia (1994) 1 PLPR 50. The Committee found that provisions of the Tasmanian Criminal 1 PLPR 50. The Committee found that provisions of the Tasmanian Criminal Code which criminalise all sexual conduct between consenting male adults in private are in breach of Australia's obligations under art 17 of the International Covenant on Civil and Political Rights (ICCPR), in that they constitute an arbitrary interference with Toonen's privacy.

The Bill is not much longer than its long title: ''An Act to implement Australia's international obligations under art 17 of the International Covenant on Civil and Political Rights'. After the formal clauses it consists of one substantive clause:

4(1) Sexual conduct involving only consenting adults acting in private is not to be subject, by or under any law of the Commonwealth, a State or a Territory, to any arbitrary interference with privacy within the meaning of Article 17 of the International Covenant on Civil and Political Rights.

(2) For the purposes of this section, an adult is a person who is 18 years old or more.

The Bill therefore implements only part of what is within art 17's scope (''privacy', but not ''family, home or correspondence'), only in one specific context (''sexual conduct'), and only then as a shield against any other law which subjects a person to ''an arbitrary interference with privacy'. It is a limited implementation of art 17 in response to the Toonen decision, but not the minimum possible interpretation, as its effects are not limited to the Tasmanian provisions. It is not unusual for human rights provisions to be implemented as ''a shield not a sword', but it can cause difficulties.

Despite its apparent simplicity, the Bill raises a number of interesting issues.

It cannot be taken as given that the Tasmanian provisions are inconsistent with the Bill, even though it may seem obvious that they are. The expression ''arbitrary interference with privacy within the meaning of Article 17' will now require Australian judicial interpretation. The weight which Australian courts will give the jurisprudence of the United Nations Human Rights Committee on this question remains to be seen, as the ICCPR has as yet been discussed in few Australian cases (see, for example, Young v Registrar, Court of Appeal [No 3] (1994) 1 PLPR 30).

However, c l 4 of the Explanatory Memorandum states ''In interpreting this clause, a court could be expected to have regard to the views of the United Nations Human Rights Committee and other international jurisprudence relevant to the interpretation of Article 17'. This is a subtle means by which to create, as a matter of statutory interpretation, a parliamentary intention that the Committee's reasoning is to be given considerable weight. The reference to ''other international jurisprudence' would include the considerable body of case law on art 8 of the European Convention on Human Rights (1950), which is in similar but not identical terms to ICCPR art 17. The similarities were evident in Modinos v Cyprus [1993] ECHR 19; (1993) 16 EHRR 485, a case decided on facts almost identical to Toonen, where the European Court of Human Rights held that a Cypriot statute that rendered male homosexual conduct in private between adults a criminal offence violated art 8 despite a policy of non-enforcement by Cypriot authorities.

Some potential cases

The WA Government has announced its intention to challenge the constitutional validity of the legislation as an exercise of the foreign affairs power. The age of consent in WA for homosexual sex is 21.

In contrast, the Tasmanian Attorney-General, Mr Cornish, has stated that Tasmania would not challenge the law before the High Court because Tasmania did not prosecute anyone for private homosexual sexual acts. It may therefore be difficult for Tasmanian gays to obtain any final resolution of the validity of the Tasmanian provisions. Declarations are not available in criminal law matters, but this would be a question of the constitutional validity of the Tasmanian laws, not their applicability as criminal laws. Although a spokesman for the Tasmanian Gay and Lesbian Rights Group, Rodney Croome, has stated that they have received legal advice that they have a ''good chance' that the High Court will hear their application for a declaration that the Tasmanian legislation is invalid, it is problematic whether, in the absence of a prosecution, any Tasmanian gays or lesbians would have standing to seek a declaration. The standing problem is exacerbated by the fact that the legislation makes no mention of homosexuals or any other class of person, or even of the Tasmanian laws. In Australian Conservation Foundation Inc v Commonwealth (1980) 28 ALR 257, Gibbs J said inter alia that the ''special interest' required for standing to obtain injunctions or declarations to prevent breach of public rights ''does not mean a mere intellectual or emotional concern' and ''a person is not interested ... unless he is likely... to suffer some disadvantage ... if his action fails'. However, the UN Committee held that Mr Toonen was ''actually and currently affected by the continuing existence of the Tasmanian law', and it is possible that the High Court could take a similar approach, or could take the opportunity to review the whole question of standing requirements. In some instances, the High Court has confirmed the validity of a challenged law even when finding that those challenging it had no standing to do so, but is less likely to decide that there is invalidity of a law without first considering standing issues.

A possible, but untested, avenue to bypass the standing problem would be for the Commonwealth Attorney-General to seek a declaration in the High Court on behalf of the Tasmanian gays and lesbians, in relator proceedings requesting him to exercise his discretion to commence proceedings on their behalf. However, further questions would then arise regarding the scope of the issue between the parties, and it is possible that the court might not be willing to make any declaration beyond that of the Constitutional validity of the Commonwealth law.

The legislation may be relevant to situations outside those of immediate concern to the WA and Tasmanian governments. For example, some laws concerning offensive conduct are capable of being used to prosecute persons engaged in sexual conduct in what may be ''in private' within the meaning of this Bill(see, for example, Pregelj and Wurramurra v Manison (1988) 31 A Crim r383 (NTCCA) concerning sexual intercourse visible to a passerby).

Political fallout

An ironic note is that the Coalition parties, in deciding not to oppose the Bill because of its limited nature, have ultimately adopted the position which John Hewson advocated and was sacked from the front bench by Opposition Leader Downer only a few weeks earlier. Mr Hewson has achieved the unexpected status of Australia's first ''privacy martyr'.

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