Toonen v Australia

Toonen v. Australia was a landmark human rights complaint brought before the United Nations Human Rights Committee (UNHRC) by Tasmanian resident Nicholas Toonen in 1994. The case resulted in the repeal of Australia's last sodomy laws when the Committee held that sexual orientation was included in the antidiscrimination provisions as a protected status under the International Covenant on Civil and Political Rights (ICCPR).

In 1991, Toonen complained to the Human Rights Committee that Tasmanian laws criminalising consensual sex between adult males in private were a violation of his right to privacy under Article 17 of ICCPR; distinguished between people on the basis of sexual activity, sexual orientation and identity in violation of Article 26; and meant that gay men in Tasmania were unequal before the law.

As a result of his complaint, Toonen lost his job as General Manager of the Tasmanian AIDS Council, because the Tasmanian Government threatened to withdraw the Council’s funding unless Toonen was fired. On 31 March 1994, the Committee agreed that, because of Tasmania's law, Australia was in breach of the obligations under the treaty. In response, the Commonwealth Government passed a law overriding Tasmania's criminalization of gay sex, Australia's last sodomy laws. The Toonen decision has subsequently been referenced by the Committee and by other treaty bodies in making rulings.

Australia inherited the United Kingdom's sodomy laws on white colonisation after 1788. These were retained in the criminal codes passed by the various colonial parliaments during the 19th century, and by the state parliaments after Federation.

Following the Wolfenden report, the Dunstan Labor government in South Australia introduced a "consenting adults in private" defence in 1972. This defence was initiated as a bill by Murray Hill, father of former Defence Minister Robert Hill, and repealed the state's sodomy law in 1975. The Campaign Against Moral Persecution during the 1970s raised the profile and acceptance of Australia's gay and lesbian communities, and other states and territories repealed their laws between 1976 and 1990. The exceptions were Tasmania and Queensland.

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