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Un Youth Australia National Conference Keynote UN YOUTH AUSTRALIA NATIONAL CONFERENCE KEYNOTE SPEAKER HER EXCELLENCY PROFESSOR THE HONOURABLE KATE WARNER AM, GOVERNOR OF TASMANIA BALL ROOM, GOVERNMENT HOUSE, MONDAY 6 JULY 2015 Good morning everyone. I would like to warmly welcome you all to Government House for the official opening of the UN Youth Australia National Conference. I understand the UN Youth Australia is all about educating and empowering young people on global issues and in particular the role of the UN. When I read this I immediately thought of a former Governor of Tasmania, Sir James Plimsoll, a very distinguished diplomat who he spent many years of his life working as Australian Permanent Resident with the United Nations in New York. I am currently reading his recently released biography – Jim Plim, Ambassador Extraordinary,1 and it occurred to me what a wonderfully informed plenary speech he would have been able to make for your conference. In contrast, given my background as an academic criminal lawyer and law reformer, my knowledge of the United Nations and its work is rather narrowly circumscribed. However, I have come across human rights issues from time to time, and human rights are of course a key purpose and guiding purpose of the UN. Rights are central to so much of the law and to criminal law in particular, starting with the golden thread, namely, the presumption of innocence – the right to be presumed innocent until proven guilty. However, as a student of a common law system, these are seen as basic legal rights rather than as human rights, as they predate the United Nations and its Charter and legal instruments. My first encounter with the work of the United Nations was with Toonen v Australia,2 the human rights complaint to the United Nations Human Rights Committee (UNHRC) which challenged Tasmania’s sodomy laws criminalising homosexual practices between adult consenting males. This was 1 Jeremy Herder, Jim Plim, Ambassador Extraordinary, A Biography of Sir James Plimsoll, Connor Court Publishing, Ballarat, 2015. 2 Toonen v Australia, Communication No. 488/1992, U.N. Doc CCPR/C/50/D/488/1992 (1994). 1 of particular interest to me as I had written the 1982 report on Rape and Sexual Offences for the Tasmanian Law Reform Commission which had recommended the repeal of the relevant offences in the Criminal Code, a recommendation which the government did not accept. Toonen’s communication to the UNHRC alleged that the laws infringed article 2(1) of the ICCPR because Australia did not recognise the rights of individuals without distinction of any kind under the Covenant because it violated his right to privacy under article 17 of the International Covenant on Civil and Political Rights (the ICCPR) and his right to be not discriminated against on the basis of sexual orientation. In 1994 the Committee found that the Tasmanian laws did breach Toonen’s right to privacy and that the criminalisation of homosexual practices was not a reasonable means or proportionate measure to achieve the aim of preventing the spread of AIDS/HIV as the Tasmanian government had argued. It also found that ‘sex’ in article 2(1) and article 26 included sexual orientation. The Committee required a response from the Federal Government within 90 days. The Tasmanian Government refused to repeal the laws so the Commonwealth Government passed the Human Rights (Sexual Conduct) Act 1994 which legalised sexual conduct between consenting adults in Australia and prohibited laws arbitrarily interfering with the sexual conduct of adults in private. It was not until 1997 that the Tasmanian Government finally repealed s 122 and 123 of the Criminal Code and I am proud to say that I played a very small part in this campaign. Whilst Toonen v Australia is only of historical interest in this country, the decision remains important as a precedent globally on the interpretation of the right to privacy as a protection of gay rights. In Botswana and many African countries homosexuality is still a crime. In a report submitted to the Human Rights Committee in 2008 by a LGBT group in Botswana, the ‘landmark case’ of Toonen v Australia was relied upon to argue that discrimination on the grounds of sexual orientation is included in the references to sex in the ICCPR and that therefor discrimination on the basis of sexual discrimination is a violation of Articles 2(1) and 26 (non-discrimination) of the ICCPR.3 Moreover, Toonen v Australia provides an example of how a breach of a human right like the right to privacy can be remedied in a country that has not enacted a Bill or Charter of Human Rights in a case where the impugned law is not a Commonwealth Law. The Human Rights Committee is the UN human rights treaty body responsible for overseeing implementation of the ICCPR through its consideration of State reports, individual complaints, interstate complaints, and its preparation of general comments, substantive statements and general discussion on topics addressed to the ICCPR. It is possible for an individual to 3 The Violations of the Rights of Lesbian, Gay, Bisexual and Transgender Persons in Botswana, A Shadow Report, March 2008. 2 use the individual complaints mechanism alleging a violation of an individual’s rights under the ICCPR, as Nicholas Toonen did in Toonen v Australia, if the complainant’s State (country) is a party to the ICCPR and if the State is also a party to the First Optional Protocol to the ICCPR. Tasmania was not a signatory to the ICCPR or to the First Optional Protocol. But Australia is. Criminal law, though, is primarily a matter for the states. However, using the external affairs power in s 51(xxix) of the Constitution, the Commonwealth could legislate to implement the ruling in relation to the ICCPR by declaring the criminalisation of homosexuality unlawful. Young v Australia is another case of an individual complaint to the Human Rights Committee against Australia. Edward Young was in a same sex relationship with a World War II veteran for 38 years until the latter’s death. Young was denied the state pension paid to dependants of war veterans who have died from war-related causes. The Veterans’ Entitlement Act 1986 (Cth) explicitly required that to be eligible for the pension, a couple had to be members of the opposite sex and this was the reason given for refusing Young the pension.4 The Committee found that Edward Young had been discriminated against under Article 26 and was entitled to an effective remedy, including reconsideration of his pension application.5 Toonen v Australia was cited as establishing that the prohibition of discrimination in article 26 includes discrimination on the basis of sexual orientation. The Committee noted that the State party (Australia) is obliged to ensure that similar violations of the Covenant do not occur in the future. Australia rejected the Committee’s views and did nothing to remedy Edward Young’s complaint. However, in 2007 there was a change of government and 68 instances of same sex discrimination in federal legislation were amended in a broad range of areas including veterans’ entitlements, and the new government cited Young v Australia as an influencing factor.6 The Tasmania Law Reform Institute As Director of the Tasmanian Law Reform Institute from 2001-2014 I have been involved in a number of projects that touch on human rights. In 2006 the Institute accepted a project from the Attorney-General on how human rights 4 http://remedy.org.au/cases/26/ 5Edward Young v Australia, Communication No 941/2000, UN Doc CCPR/C/78/D/941/2000 (2003). 6 http://remedy.org.au/cases/26/. However, the Department of Veteran Affairs still refused the Young the pension, this time contesting that his partner died of war-related causes. 3 could be better protected and enhanced in Tasmania. My colleague, Terese Henning at the Law School, took 4 months leave from teaching and together with a team of research assistants and after extensive consultation with the community produced an excellent report for the TLRI recommending that Tasmania have a Charter of Rights. That proposal has not been adopted but the comprehensive report remains on the shelf.7 Despite the lack of a Charter of Rights, the TLRI does, when appropriate, look at issues through a human rights lens on the grounds that our laws, and any new law should be human rights compliant. So for example, when we were considering the issue of whether our child sexual assault laws should be amended to prevent a defendant relying upon mistake as to age, one option was to remove the defence of honest and reasonable mistake in cases where the consenting young person was under the age of 12. In rejecting this option, the Final Report argued that to create an offence of absolute liability, in other words to have a law under which a person could be found guilty of a criminal offence punishable by imprisonment without proof of advertence to the wrongfulness of the act, was an infringement of human rights, namely the right to liberty. In Canada and Ireland, for example, the right to liberty prohibits the existence of offences that are punishable by imprisonment if they do not allow the minimum of a due diligence defence. So the Canadian Supreme Court and the Supreme Court of Ireland have struck down as unconstitutional the crime of sexual intercourse with a young person that did not provide a defence of mistake as to age.8 Two of the submissions received by the TLRI argued that the absence of a Human Rights Act meant that there was even more reason to ensure new laws were human rights compliant.9 Criminal Procedure and Human Rights In about 2006 I was invited by colleagues from the University of Tasmania, Melbourne and New South Wales to collaborate on a book which would analyse each stage of the criminal justice system from the perspective of human rights.
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