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s08 – Recognition and Equality Before the Law
Charter requires consideration of ‘special circumstances’ of alleged infringement offenders Taha v Broadmeadows Magistrates’ Court & Ors; Brookes v Magistrates’ Court of Victoria & Anor [2011] VSC 642 (16 December 2011) Summary The Supreme Court has held that infringements officers and courts may have a duty to inquire whether a person has ‘special circumstances’ – [...]
Tribunal considers special measures and discrimination under the Charter and new Equal Opportunity Act Parks Victoria (Anti-Discrimination Exemption) [2011] VCAT 2238 (28 November 2011) Cummeragunja Housing & Development Aboriginal Corporation (Anti-Discrimination Exemption) [2011] VCAT 2237 (28 November 2011) The Ian Potter Museum of Art (Anti-Discrimination Exemption) [2011] VCAT 2236 (28 November 2011) Summary On 28 [...]
Tribunal considers special measures and discrimination under the Charter and new Equal Opportunity Act Parks Victoria (Anti-Discrimination Exemption) [2011] VCAT 2238 (28 November 2011) Cummeragunja Housing & Development Aboriginal Corporation (Anti-Discrimination Exemption) [2011] VCAT 2237 (28 November 2011) The Ian Potter Museum of Art (Anti-Discrimination Exemption) [2011] VCAT 2236 (28 November 2011) Summary On 28 [...]
Tribunal considers special measures and discrimination under the Charter and new Equal Opportunity Act Parks Victoria (Anti-Discrimination Exemption) [2011] VCAT 2238 (28 November 2011) Cummeragunja Housing & Development Aboriginal Corporation (Anti-Discrimination Exemption) [2011] VCAT 2237 (28 November 2011) The Ian Potter Museum of Art (Anti-Discrimination Exemption) [2011] VCAT 2236 (28 November 2011) Summary On 28 [...]
Sterilisation of woman amounted to breach of respect for private life and prohibition against inhuman or degrading treatment V.C. v Slovakia [2011] ECHR 1888 (8 November 2011) Summary In this case, the European Court of Human Rights held that the sterilisation of a woman, in circumstances where “consent” to the procedure was obtained during the [...]
Denial of access to therapeutic abortion and essential health care violated Convention on Elimination of Discrimination against Women L.C. v. Peru, UN Doc. CEDAW/C/50/D/22/2009 (4 November 2011) Summary The UN Committee on the Elimination of Discrimination against Women has found that Peru, by denying a minor who had been sexually abused access to therapeutic abortion [...]
States have margin of appreciation to regulate access to reproductive health care S.H. & Others v Austria [2011] ECHR 1879 (3 November 2011) Summary The Grand Chamber of the European Court of Human Rights has found that Austrian legislation which prevents couples from conceiving a child with in vitro fertilization using donated ova or sperm [...]
Federal Court upholds the right to be free from racial discrimination Eatock v Bolt [2011] FCA 1103 (28 September 2011) Summary Federal Court judge Bromberg J recently held that Herald Sun opinion columnist Andrew Bolt and the Herald & Weekly Times had contravened the racial vilification provisions of the Racial Discrimination Act 1975 (Cth) in [...]
United Kingdom justified in differentiating between social housing applicants based on conditional immigration status Bah v United Kingdom [2011] ECHR 1448 (27 September 2011) Summary The European Court of Human Rights has held that a person’s immigration status is a relevant ground of discrimination under Article 14 of the European Convention of Human Rights. However, [...]
Treatment and conditions of detention for women must be gender-sensitive, says CEDAW Inga Abramova v Belarus, Communication No. 23/2009, UN Doc. CEDAW/C/49/D/20/2008 (2011) Summary The Committee on the Elimination of Discrimination against Women has found that Belarus’ treatment of a woman detained under administrative arrest violated articles 2(a)-2(b), 2(e)-2(f), 3 and 5(a) of the Convention [...]
Failure to protect woman effectively against domestic violence violated Convention on Elimination of Discrimination against Women V.K. v. Bulgaria, UN Doc CEDAW/C/49/D/20/2008 (17 August 2011) Summary The Committee on the Elimination of Discrimination against Women has found that Bulgaria’s failure to protect V.K. effectively against domestic violence amounted to violations of articles 2(c)-2(f) of the [...]
Treatment of young rape survivor violated ICCPR L.N.P. v Argentine Republic, Comm. No. 1610/2007, UN Doc. CCPR/C/102/D/1610/2007 (2011) The Human Rights Committee recently found that Argentina’s treatment of a 15 year-old rape survivor violated articles 2(3), 3, 7, 14(1), 17, 24 and 26 of the International Covenant of Civil and Political Rights. Facts L.N.P., an [...]
Failure to prevent avoidable maternal death violates rights to life, health and non-discrimination Alyne da Silva Pimentel Teixeira (deceased) v Brazil, CEDAW, UN Doc CEDAW/C/49/D/17/2008 (2011) Summary The UN Committee on the Elimination of Discrimination against Women has found that Brazil’s failure to prevent the avoidable maternal death of Alyne da Silva, a 28-year-old Brazilian [...]
Charter Promotes and Protects Rights of Person with Disability P J B v Melbourne Health & Anor (Patrick’s case) [2011] VSC 327 (19 July 2011) Summary In this case, the Supreme Court of Victoria held that the Victorian Civil and Administrative Tribunal had both failed to interpret law consistently with human rights and had itself [...]
Right to equality and anti-discrimination exemptions Thales Australia Limited and ADI Munitions Pty Ltd (Anti-Discrimination) [2011] VCAT 729 (29 April 2011) Summary In this decision the Tribunal granted an exemption from certain provisions of the Equal Opportunity Act 1995 (Vic) (EO Act) to companies carrying out contracts with American firms in the defence industry. The [...]
Council failed to Give “Due Regard” to Equality Duties in Defunding a Community Service Rahman, R (on the application of) v Birmingham City Council [2011] EWHC 944 (Admin) (31 March 2011) Summary The High Court of England and Wales has held that the decision of a local council to terminate funding to a number of [...]
Age Discrimination Permissible for Widows’ Death Benefits Withler v Canada (Attorney General) [2011] SCC 12 (4 March 2011) Summary In response to a class action brought on behalf of widows receiving spousal death benefits, the Supreme Court of Canada (SCC) has reviewed Canadian jurisprudence regarding the violation of the right to substantive equality under s [...]
Religious Expression May be Limited to Protect the Rights of Child Johns & Anor, R (on the application of) v Derby City Council & Anor [2011] EWHC 375 (Admin) (28 February 2011) Summary The England and Wales High Court recently found that the right to religious expression could be limited where attitudes towards sexuality might [...]
VCAT Considers Disability Discrimination Under the Charter Caserta v Director of Public Transport [2011] VCAT 98 (27 January 2011) Summary The applicant sought a review of the decision of the Director of Transport (‘Director’) refusing to grant him an application for driver accreditation for a commercial passenger vehicle. The Victorian Civil and Administrative Tribunal (‘VCAT’) [...]
Legislation which Imposes Burden on Public Transport Users Indirectly Discriminates on Grounds of Race and Poverty Mvumvu v Minister for Transport [2011] ZACC 1 (17 January 2011) Summary The South African Constitutional Court struck down road accident compensation legislation because it is indirectly discriminatory on the ground of race. However, due to evidence of serious [...]
‘Freedom of Religion is Not Absolute’: Same-Sex Marriage and Religious Beliefs and Convictions In the Matter of Marriage Commissioners Appointed Under The Marriage Act, 1995, 2011 SKCA 3 (10 January 2011) In a landmark ruling, the Court of Appeal for Saskatchewan, In the Matter of Marriage Commissioners Appointed Under The Marriage Act, 1995 (Marriage Commissioner [...]
Disability Discrimination in Access to Education British Columbia (Ministry of Education) v Moore, 2010 BCCA 478 (29 October 2010) Frederick Moore filed a human rights complaint against the Board of Trustees School Division and the Ministry of Education. He alleged the Board and the Ministry had discriminated against his dyslexic son Jeffrey and other severely [...]
Can a Commercial Entity Discriminate against People because of their Sexual Orientation on the Grounds of Its Religious Beliefs? Cobaw Community Health Services Limited v Christian Youth Camps Limited & Anor [2010] VCAT 1613 (8 October 2010) VCAT has recently ruled that a Christian adventure resort has discriminated against a gay youth suicide prevention group [...]
Sex Workers Must not be Forced to Choose between their Right to Liberty and Right to Security of Person Bedford v Canada, 2010 ONSC 4264 (28 September 2010) In September 2010, the Superior Court of Justice of Ontario (Canada) struck down ss 210, 212(1)(j) and 213(1)(c) of the Criminal Code, which criminalised certain aspects of [...]
Racial Vilification and the Balancing of Freedom of Expression with Freedom from Discrimination Adan v Denmark, UN Doc CERD/C/77/D/43/2008 (21 September 2010) The Petitioner, Saada Adan, filed a complaint against Denmark with the UN Committee on the Elimination of Racial Discrimination (CERD) alleging violations of the International Convention on the Elimination of All Forms of [...]
Canadian Court Considers Content of Right to Equality and Role of Appellate Courts in Discrimination Matters Ayangma v French School Board, 2010 PECA 16 (9 September 2010) The decision reviews the Supreme Court of Canada’s jurisprudence in regards to the violation of the human right to equality under s 15(1) of the Canadian Charter of [...]
What is the Relationship between the Charter and the Equal Opportunity Act? McAdam v Victoria University & Ors (Anti-Discrimination) [2010] VCAT 1429 (3 September 2010) This decision illustrates how Charter arguments may complement complaints under the Equal Opportunity Act 1995 (Vic). It considers an application by Victoria University to strike out or dismiss a number [...]
States Have Obligation to Prevent and Address Gender-Based Stereotyping Vertido v The Philippines, UN Doc CEDAW/C/46/D/18/2008 (1 September 2010) The Committee on the Elimination of Discrimination against Women has held the Philippines in violation of its obligations under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women to [...]
Discrimination on Ground of Nationality Nikolaus Fürst Blücher von Wahlstatt v Czech Republic, UN Doc CCPR/C/99/D/1491/2006 (19 August 2010) The Human Rights Committee has found that Czech land laws requiring citizenship as a necessary condition for restitution of property previously confiscated by authorities constitutes a violation of the right to equality before the law. Facts [...]
Adoption by Gay Men and Lesbian Women: Two Steps Forward, One Step Back… In the matter of an Application pursuant to s 11(3) Adoption Act (Vic) 1984 AB and Victorian Equal Opportunity & Human Rights Commission and Department of Human Services and Separate Representative of J [2010] VCC AD-10-003 (6 August 2010) A recent decision [...]
Protecting Marriage or Legislating Morality? Same-Sex Marriage Equality under the US Constitution Perry v Schwarzenegger, Case No. C 09-2292 VRW (US District Court for the Northern District of California, 4 August 2010) The US District Court has held that a prohibition against same-sex marriage violates the US constitutional requirements of ‘due process’ and equal ‘protection’. [...]
VCAT Considers Right to Equality and Retrospective Operation of the Charter Valentine v Emergency Services Superannuation Board [2010] VCAT No G585/2008 (29 July 2010) The Victorian Civil and Administrative Tribunal has held that s 32 of the Charter does not apply retrospectively to affect the interpretation of the State Superannuation Act 1988 (Vic) insofar as [...]
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 [...]
Right to Equality: Recognising and Prohibiting Discrimination beyond ‘Innate’ or ‘Inherent’ Characteristics Clift v United Kingdom [2010] ECHR 1106 (13 July 2010) In Clift v The United Kingdom, the European Court of Human Rights gave a broad reading to art 14 of the European Convention of Human Rights, finding that a person’s status as a [...]
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. [...]
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 [...]
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. [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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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