Cases violating ICCPR art 17(1) (potential) (2)

Note that committees can record actual or potential violations.

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.

ICCPR art 17(1)

Toonen v Australia (HRC, 1994)

Remedy's assessment: Remedied

Nick Toonen was a gay Tasmanian in a state where consenting sex between adult men in private was still punishable by up to 25 years’ gaol. Mr Toonen alleged that this violated his right to privacy and that the only effective remedy would be repeal of the relevant provisions of the Tasmanian Criminal Code. The Australian Government agreed with Mr Toonen, noting that homosexuality had been decriminalised in all other Australian jurisdictions. The Tasmanian Government defended its laws, however, on public health and moral grounds. The HRC found the laws were an arbitrary interference with Mr Toonen’s right to privacy and that an effective remedy would require the repeal of those laws. It also established that the prohibition on discrimination on the basis of ‘sex’ found in articles 2(1) and 26 includes sexual orientation. Australia enacted the Human Rights (Sexual Conduct) Act 1994 (Cth) to prohibit laws that arbitrarily interfere with the sexual conduct of adults in private. Tasmania subsequently amended its Criminal Code.

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Z v Australia (HRC, 2015)

Remedy's assessment: Unremedied

Mr Z is a Polish-Australian who moved to Australia with his wife and their 2-year-old son. After nearly 3 years, the family returned to Poland, with the intention of permanent relocation. However, Mrs Z soon changed her mind, and took the boy to Australia without his father’s consent. The couple divorced, with Polish courts granting sole custody of the child to his father, and the Family Court of Western Australia granting sole custody to his mother.

Mr Z applied under the Hague Convention on Civil Aspects of International Child Abduction for the return of his son to Poland. Eighteen months later, when his first application was unsuccessful, he applied under the Hague Convention for access and custody. The WA Family Court granted Mr Z supervised access to his son in Australia, two-and-a-half years after he had first applied.

The UN Human Rights Committee found that Australia’s failure to guarantee personal relations and regular contact between Mr Z and his son constituted arbitrary interference with family life and violation of the right of families and children to protection. Also, Australia’s failure to deal expeditiously with Mr Z’s custody and access applications amount to a violation of his rights concerning fair hearings. An effective remedy would include ensuring regular contact between father and son and compensation for the violations of their rights. Australia must also act to prevent similar violations recurring.

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