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s08 - Recognition and Equality Before the Law
Charter Rights Should be Construed Broadly and by Reference to International and Comparative Human Rights Jurisprudence
Director of Public Transport v XFJ [2010] VSC 319 (29 July 2010)
The Victorian Supreme Court has affirmed the importance of a broad approach to the construction of human rights in the Charter, including appropriate reliance on international human rights law [...]
Right to Humane Treatment in Detention and Prisoner Access to Health Care
Castles v Secretary to the Department of Justice [2010] VSC 310 (9 July 2010)
On 9 July 2010, the Supreme Court of Victoria found that the plaintiff, Kimberley Castles, is entitled under s 47(1)(f) of the Corrections Act 1986 to undergo IVF treatment. The finding [...]
Right to Equality and Anti-Discrimination Exemptions: Special Measures to Reduce Disadvantage
Department of Human Services & Department of Health (Anti-Discrimination Exemption) [2010] VCAT 1116 (29 June 2010)
In this decision, McKenzie DP granted an exemption on the basis that it constitutes an appropriate special measure to reduce disadvantage caused by discrimination, as permitted by s 8(4) of [...]
Right to Equality and Anti-Discrimination Exemptions
Members of Owners Corporation on Plan of Subdivision No 441923W (Anti-Discrimination Exemption) [2010] VCAT 1111 (28 June 2010)
In this decision, McKenzie DP refused to grant a proposed exemption because it was not the least restrictive means of achieving the desired outcome, contrary to s 7(2)(e) of the Charter.
Facts
This exemption application [...]
Do the Rights to Marriage and Equality Require States to Recognise Same-Sex Marriage?
Schalk and Kopf v Austria [2010] 30141/04 (24 June 2010)
Does the right to marry, and the ‘family unit’, extend to same-sex couples? The European Court of Human Rights recent decision in Schalk and Kopf v Austria considers these issues.
Facts
Under Austrian domestic law, a [...]
VCAT Considers Relevance of Charter to Availability of Payments for Childcare from Transport Accident Commission
Michelle Dawson v Transport Accident Commission [2010] VCAT 796 (13 May 2010)
Facts
Ms Dawson was seriously injured in a car accident on 13 October 2005. As a result of her injuries Ms Dawson received a number of therapies in accordance with her [...]
Supreme Court Orders Speedy Trial to Determine Prisoner’s Eligibility to Access IVF Treatment under Victorian Charter
Castles v Secretary of the Department of Justice & Ors [2010] VSC 181 (4 May 2010)
The Supreme Court of Victoria has rejected an application by a female prisoner for an injunction restraining the Secretary of the Department of Justice from [...]
Supreme Court Orders Speedy Trial to Determine Prisoner’s Eligibility to Access IVF Treatment under Victorian Charter
Castles v Secretary of the Department of Justice & Ors [2010] VSC 181 (4 May 2010)
The Supreme Court of Victoria has rejected an application by a female prisoner for an injunction restraining the Secretary of the Department of Justice from [...]
Refusal to Recognise Change of Ethnic Identity is Discriminatory and Breaches Right to Respect for Private Life
Ciubotaru v Moldova [2010] ECHR 638 (27 April 2010)
In Ciubotaru v Moldova, the European Court of Human Rights held that, along with such aspects as name, gender, religion and sexual orientation, an individual’s ethnic identity constitutes an essential aspect [...]
Balancing the Right to Non-Discrimination and Freedom of Religious Belief in the Provision of Charitable Services
Catholic Care (Diocese of Leeds) v Charity Commission for England and Wales & Anor [2010] EWHC 520 (Ch) (17 March 2010)
The England and Wales High Court has held that it is for the Charity Commission to determine whether discrimination against [...]
Temporary Exceptions and the Right to Equality and Non-Discrimination: Exemptions should be Subject to Ongoing Monitoring and Evaluation
Wesley College (Anti-Discrimination Exemption) [2010] VCAT 247 (3 March 2010)
In this case, VCAT considered an exemption application pursuant to s 83 of the Equal Opportunity Act 1995 by Wesley College. The exemption sought to enable Wesley to advertise [...]
Same-Sex Relationships: Right to Non-Discrimination and Succession to Public Tenancy
Kozak v Poland [2010] ECHR 280 (2 March 2010)
The European Court of Human Rights has held that Poland violated arts 8 and 14 of the European Convention on Human Rights by denying a man living in a homosexual relationship the right to succeed to a tenancy [...]
Balancing the Right to Religious Observance with the Right to Non-Discrimination
Ladele v London Borough of Islington [2009] EWCA Civ 1357 (15 December 2009)
The England and Wales Court of Appeal has confirmed that a local council can compel its employee to register civil partnerships, even though this conflicts with the employee’s religious beliefs.
Facts
The Civil Partnership Act [...]
Freedom from Discrimination against Same-Sex Couples in Provision of Housing
Rodriguez v Minister of Housing & Anor (Gibraltar) [2009] UKPC 52 (14 December 2009)
The Privy Council has held that a Gibraltar Housing Allocation Committee policy to effectively grant government housing joint tenancies only to heterosexual couples was indirectly discriminatory and unconstitutional.
Facts
The Gibraltar Housing Allocation Committee’s policy [...]
Right to Respect for Family Life and Equal Treatment: Fathers’ Right to Custody of a Child Born out of Wedlock
Zaunegger v Germany [2009] ECHR 22028/04 (3 December 2009)
In this case, the European Court of Human Rights held by six votes to one that the denial of a fathers’ right to custody of a child born [...]
Equality and Public Authorities: Court Considers Exclusion of Female Ski Jumpers from Winter Olympics and Paralympics
Sagen v Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games, 2009 BCCA 522 (20 November 2009)
The British Columbian Court of Appeal has confirmed that the Canadian Charter of Human Rights and Freedoms does not apply to non-governmental [...]
Equality and Exemptions: VCAT Denies Exemption for Women Only Travel Tours
Travel Sisters (Anti-Discrimination Exemption) [2009] VCAT A189/2009 (17 November 2009)
Facts
In 2009, Erin Maitland applied to the Victorian Civil and Administrative Tribunal (‘VCAT’) under s 83 of the Equal Opportunity Act 1995 (Vic) (‘EO Act’), for an exemption to allow her to operate women only travel [...]
Equality and Exemptions: Discrimination to Promote Gender Equality in Education
Carey Baptist Grammar School Ltd (Anti-Discrimination Exemption) [2009] VCAT 2221 (23 October 2009)
Carey Baptist Grammar School (’Carey’) was also successful in its application to VCAT for an exemption from the Equal Opportunity Act 1995 (Vic) (’EO Act’). VCAT renewed Carey’s exemption to enable it to treat [...]
Equality and Exemptions: Discrimination on the Grounds of Political Activity
Victorian Electoral Commission (Anti-Discrimination Exemption) [2009] VCAT 2191 (30 September 2009)
VCAT has granted the Victorian Electoral Commission (’VEC’) an exemption from the Equal Opportunity Act 1995 (Vic) (’EO Act’) to enable the VEC to take into account certain political activities of a person when considering whether [...]
Age Discrimination and Equal Opportunity Exemptions under the Victorian Charter
Lifestyle Communities Ltd (No 3) (Anti-discrimination) [2009] VCAT 1869 (22 September 2009)
In September 2009, VCAT President Justice Kevin Bell dismissed an application by Lifestyle Communities Ltd for an exemption under the Equal Opportunity Act 1995 (Vic) (‘EOA’). In making the orders, Bell P extensively considered the [...]
Right to Respect for Private Life and Equality in Prison
AB, R (on the application of) v Secretary of State for Justice & Anor [2009] EWHC 2220 (4 September 2009)
In this case, the Administrative Court of the High Court of Justice held that the continued detention of a pre-operative transgender woman in a male prison breached [...]
Smoking Ban in High-Security Psychiatric Hospitals does not Contravene Right to Privacy
N, R (on the application of) v Secretary of State for Health [2009] EWCA Civ 795 (24 July 2009)
The House of Lords held that a policy of banning smoking at a psychiatric hospital did not contravene the patients’ human rights and was lawful. Specifically [...]
Equal Opportunity Exemptions and Special Measures under the Charter
Hobsons Bay City Council & Anor (Anti-Discrimination Exemption) [2009] VCAT 1198 (17 July 2009)
The Victorian Civil and Administrative Tribunal has again granted a swimming pool operator a temporary exemption from the Equal Opportunity Act 1995 (Vic) (’EO Act’) to enable it to conduct women-only swimming sessions and [...]
Supervised Treatment and Limitations on the Rights of Persons with Disability under the Charter
AC (Guardianship) [2009] VCAT 1186 (8 July 2009)
This case concerns AC, a 26 year old man with a mild intellectual disability who has been living at Sandhurst since 2000. Due to a history of assaultive and sexualised behaviours, AC was placed on [...]
European Court Considers State Obligations to Prevent and Address Domestic Violence
Opuz v Turkey [2009] ECHR 33401/02 (9 June 2009)
In June 2009, the European Court of Human Rights found Turkey in violation of its obligations, under arts 2, 3 and 14 of the European Convention on Human Rights, to protect the applicant and her mother from [...]
Right to Equality and Exemptions under the Equal Opportunity Act
YMCA – Ascot Vale Leisure Centre (Anti-Discrimination Exemption) [2009] VCAT 765 (4 May 2009)
This case explores the relationship between human rights and equal opportunity legislation. It was decided by VCAT that the YMCA should be granted a temporary exemption from the Equal Opportunity Act 1995 to [...]
Discrimination on the Ground of Poverty
Boulter v Nova Scotia Power Incorporation, 2009 NSCA 17 (CanLII) (13 February 2009)
This decision of the Nova Scotia Court of Appeal considered whether discrimination on the grounds of poverty is contrary to the right to equality under the Canadian Charter of Rights. The Court held that poverty is not a [...]
In a recent VCAT decision, Harbison J has confirmed that the limitations provision of the Charter now defines the parameters of VCAT’s power to grant an exemption from the Equal Opportunity Act 1995 (Vic) (‘EO Act’) under s 83 of the EO Act.
Detailed case note.
The Social Security Contributions and Benefits Act 1992 (UK) provides for a ‘disability premium’ for people receiving welfare payments, except where the person is ‘without accommodation’.
In this case the House of Lords decided that discrimination in the distribution of welfare payments can be justified under the European Convention on Human Rights.
Detailed case note.
VCAT has granted a restricted exemption from employment-related provisions of the Equal Opportunity Act 1995 (Vic) to a defence-related contractor, allowing the contractor to discriminate against its employees on the basis of nationality.
Detailed case note.
The ACT Administrative Appeals Tribunal has considered the interpretative principle and permissible limitations on human rights under the Human Rights Act 2004 (ACT) in a case concerning exemptions from anti-discrimination legislation.
Detailed case note.
In a significant recent decision, the Supreme Court of Canada held that proactive schemes which seek to ameliorate the conditions of disadvantaged groups do not contravene the guarantee of equality in the Canadian Charter of Rights and Freedoms. In doing so, the Court re-emphasised the Canadian Charter’s concern with substantive equality.
Detailed case note.
The Grand Chamber of the European Court of Human Rights has considered the nature and scope of art 14 of the European Convention on Human Rights, which enshrines the right to non-discrimination and the equal enjoyment of human rights. The Grand Chamber held that the education policy in the Czech Republic, which resulted in the [...]
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