Since I posted a summary of the Tasmanian UN case, a number of people have requested the text. I haven't typed in the full decision, but the important parts are extracted below. before the decision extract I have typed in the provisions of the Tassie crim code which were held to be in violation of the ICCPR. Tassie Crim code: Section 122 provides: Any person who - (a) has sexual intercourse with any person against the order of nature; (b) has sexual intercourse with an animal; or (c) consents to a male person having sexual intercourse with him or her against the order of nature, is guilty of a crime. Charge: Unnatural sexual intercourse. Section 123 provides: 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. Charge: Indecent practice between male persons. Note that "unnatural sexual intercourse" is not defined in the legis. and no one is really sure what it covers. It certainly includes all forms of anal intercourse and probably all forms of oral sex as well. NB S122(b) was not attacked by the communication. EXTRACT FROM THE COMMITTEE DECISION: Examination of the Merits: 8.1 The Committee is called upon to determine whether Mr. Toonen has been the victim of an unlawful or arbitrary interference with his privacy, contrary to article 17, paragraph 1, and whether he has been discriminated against in his right to equal protection of the law, contrary to article 26. 8.2 Inasmuch as article 17 is concerned, it is undisputed that adult consensual sexual activity in private is covered by the concept of "privacy", and that Mr. Toonen is actually and currently affected by the continued existence of the Tasmanian laws. The committee considers that Sections 122(a), (c) and 123 of the Tasmanian Criminal Code "interfere" with the author's privacy, even if these provisions have not been enforced for a decade. In this context, it notes that the policy of the Department of Public Prosecutions not to initiate criminal proceedings in respect of private homosexual conduct does not amount to a guarantee that no actions will be brought against homosexuals in the future, particularly in the light of undisputed statements of the Director of Public Prosecutions of Tasmania in 1988 and those of members of the Tasmanian Parliament. The continued existence of the challenged provisions therefore continuously and directly "interferes" with the author's privacy. 8.3 The prohibition against private homosexual behaviour is provided for by law, namely, Sections 122 and 123 of the Tasmanian Criminal Code. As to whether it may be deemed arbitrary, the Committee recalls that pursuant to its General Comment 15(32) on article 17, the "introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by the law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the circumstances". 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. 8.4 While the State party acknowledges that the impugned provisions constitute an arbitrary interference with Mr. Toonen's privacy, the Tasmanian authorities submit that the challenged laws are justified on public health and moral grounds, as they are intended in part to prevent the spread of HIV/AIDS in Tasmania, and because in the absence of specific limitation clauses in article 17, moral issues must be deemed a matter for domestic decision. 8.5 As far as the public health argument of the Tasmanian authorities is concerned, the Committee notes that the criminalisation of homosexual practices cannot be considerd a reasonable means or proportionate measure to achieve the aim of preventing the spread of AIDS/HIV. The Australian Government observes that statutes criminalising homosexual activity tend to impede public health programmes "by driving underground many of the people at the risk of infection." Criminalization of homosexual activity thus would appear to run counter to the implementation of effective education programmes in respect of the HIV/AIDS prevention. Secondly, the Committee notes that no link has been shown between the continued criminalisation of homosexual activity and the effective control of the spread of the HIV/AIDS virus. 8.6 The Committee cannot accept either that for the purposes of article 17 of the Covenant, moral issues are exclusively a matter of domestic concern, as this would open the door to withdrawing from the Committee's scrutiny a potentially large number of statutes interfering with privacy. It further notes that with the exception of Tasmania, all laws criminalizing homosexuality have been repealed throughout Australia and that, even in Tasmania, it is apparent that there is no consensus as to whether Sections 122 and 123 should not also be repealed. Considering further that these provisions are not currently enforced, which implies that they are not deemed essential to the protection of morals in Tasmania, the Committee concludes that the provisions do not meet the "reasonableness" test in the circumstances of the case, and that they arbitrarily interfere with Mr. Toonen's right under article 17, paragraph 1. 8.7 The State party has sought the Committee's guidance as to whether sexual orientation may be considered an "other status" for the purposes of article 26. The same issue could arise under article 2, paragraph 1, of the Covenant. The Committee confines itself to noting, however, that in its view the reference to "sex" in articles 2, paragraph 1, and 26 is to be taken as including sexual orientation. 9. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights is of the view that the facts before it reveal a violation of articles 17, paragraph 1, juncto 2, paragraph 1, of the Covenant. 10. Under article 2(3)(a) of the Covenant, the author, victim of a violation of article 17, paragraph 1, juncto 2, paragrah 1, of the Covenant is entitled to a remedy. In the opinion of the Committee, an effective remedy would be the repeal of Sections 122(a), (c) and 123 of the Tasmanian Criminal Code. 11. Since the Committee has found a violation of Mr. Toonen's rights under articles 17(1) and 2(1) of the Covenant requiring the repeal of the offending law, the Committee does not consider it necessary to consider whether there has also been a violation of article 26 of the Covenant. 12. The Committee would wish to receive, within 90 days of the date of the transmittal of its views, information from the State party on the measures taken to give effect to the views. END OF EXTRACT NB, note the breadth of the finding that sexual orientation is to be read into article 2(1). This makes clear that ALL the rights in the covenant (freedom of speech, association, right to family life and marriage etc etc, as well as the general equality right) apply to gay men and lesbians. Whilst I have HUGE problems with the Cttee's view that sexual orientation is an aspect of sex, this is still very useful strategically speaking. I would have thought reference to this decision would have been very valuable in a number of legal battles currently being fought by gay and lesbian groups in the USA, USE IT!!!