Treaties and Intergovernmental Relations in Australia: Political Implications of the Toonen Case

This article explores the political implications of the Toonen case for studies of Australian federalism. The case involved a finding by the United Nations Human Rights Committee that Tasmania's anti-gay laws breached Australia's human rights obligations, and the subsequent passing of the Human Rights (Sexual Conduct) Act 1994 (Cth) designed to override sections of Tasmania's criminal law.
The Commonwealth's use of the external affairs power to ratify international treaties is outlined, and some questions regarding Commonwealth and state responsibilities and areas of concern flowing from treaty ratification are examined. The Privacy Act is discussed, and the character of intergovernmental relations and cooperation in this instance analysed.
The case raises the question of whether the Commonwealth's capacity to use and expand its powers is subject to effective checks and balances, or is limiting or eroding the powers of the states to the extent that the division and sharing of powers no longer represents that of a federal system. The article concludes that Australian federalism is dynamic and flexible, and reaffirms that a differentiation between the process and outcome of intergovernmental relations will enhance our understanding of its machinations.