A. The Framework of Human Rights Principles
As used in this paper, the concept of human rights refers to a set of internationally agreed upon moral principles that have been set down in various United Nations human rights instruments. In the aftermath of the documented atrocities of World War II, these instruments were designed to [End Page 206] ensure that crimes against humanity, such as policies of genocide, would not happen again. 2
Over the years, in response to continuing input from nongovernmental organizations (NGOs) and governments, United Nations human rights instruments have been refined and expanded, and a number of special declarations on the rights of particular minorities—children, persons with disabilities, indigenous peoples, women, and others—have been developed. 3 To date, however, there is no international covenant that affords specified protection for the minority rights of gay men and lesbians.
For purposes of this paper, it is important to distinguish clearly between international human rights principles and public policies or laws enacted by governments. Human rights principles are international, moral guidelines that are prior to law, representing the global standards to which the laws and public policies of all countries should conform. However, the laws and policies of governments do not always incorporate human rights principles: laws may be modeled on human rights guidelines (such as antidiscrimination laws), but laws may also violate human rights principles (such as South Africa’s former apartheid laws).
When human rights principles become incorporated into the law of a country, they become legal rights that can be invoked by persons or groups who perceive that their human rights have been violated, in order to seek redress for the alleged violations. 4
B. The Legal Frameworks for Protection for Human Rights in Australia and in Canada
In Australia, protections for general human rights were in the past provided by the common law. 5 Although some provisions in the Australian Constitution [End Page 207] do protect individual rights, “[t]he framers of the federal [Commonwealth] Constitution consciously and deliberately rejected . . . including a Bill of Rights similar to that which was added to the U.S. Constitution.” 6 Therefore, when the Commonwealth did introduce legislation to protect human rights beginning in the 1970s, it was based upon the Commonwealth’s foreign policy powers rather than the Constitution. 7 The Commonwealth’s first human rights law was the Racial Discrimination Act, passed in 1975, which was followed by the Human Rights Commission Act in 1981. 8 The latter was replaced five years later by the Human Rights and Equal Opportunity Commission Act (1986), with a mandate to inquire into allegations of discrimination based on race, color, and sex. 9
In addition to federal Commonwealth legislation, “each of the States, except Tasmania and Queensland, has its own anti-discrimination legislation, dealing with . . . grounds of race, sex, and marital status,” and in some cases, other grounds. 10 Discrimination on the ground of sexual orientation, in particular, is covered only in the New South Wales Act (under homosexuality), 11 and in the South Australian Act (under sexuality). 12
In Canada, pressure groups began to lobby for antidiscrimination legislation after World War II and, in the latter part of the 1940s, the provinces of Ontario and Saskatchewan passed the first human rights-oriented statutes. 13 In 1962, a major step was taken when the province of Ontario consolidated its legislation into the Ontario Human Rights Code, to be administered by the new Ontario Human Rights Commission. 14 By 1975, all provinces had followed suit. In 1977, a federal Commission was established to administer the (federal) Canadian Human Rights Act. 15
As in Australia, the prohibited grounds for discrimination vary from one [End Page 208] jurisdiction to another, but all the human rights codes prohibit discrimination on the grounds of race, color, ethnic or national origin, religion, and sex. Of a total of ten provinces, eight (Ontario, Quebec, Manitoba, Sas-katchewan, British Columbia, Nova Scotia, New Brunswick, and the Yukon Territory) offer protection against discrimination on the ground of sexual orientation.
In contrast to Australia, Canada has offered constitutional protection...