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Toonen v Australia (1994)

Facts: Have you heard of Rodney Croome and Nicholas Toonen? Croome and Toonen were an iconic Tasmanian gay couple who fought to challenge Tasmania's criminalisation of homosexuality under ss 122 and 123 of the Criminal Code Tasmania. Prior to 1991, consenting sex between adult men in private was still criminalised with a penalty of up to 21 years gaol. In 1991, Toonen took their mutual complaint to the United Nations Human Rights Council (UNHRC), which ruled that such a provision in Tasmanian law outlawing male homosexual conduct breached article 17 of the International Covenant on Civil and Political Rights (ICCPR).

Law: Article 17 of the ICCPR prohibits unlawful or arbitrary interferences with a person's privacy, family, home and correspondence. How were these conflicting laws remedied in contrast with Tasmanian Federal Law?

Holding: In response to the UNHRC's finding, the Commonwealth of Australia responded by citing the external affairs power and s 109 of The Constitution, which states that 'when a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.'

The Commonwealth of Australia also implemented the Human Rights (Sexual Conduct) Act 1994 (Cth) which prevented the Commonwealth from arbitrarily interfering with the sexual and consensual conduct of adults in private. Although the Tasmanian Government initially asserted its laws on "public health" and "moral grounds", Tasmania promptly amended its laws in response to the UNHRC's ruling.

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