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’ – such as intellectual disability or mental illness – before imprisoning that person in lieu of payment of unpaid fines. This duty arises under section 160 of the Infringements Act when read in conjunction with the right to liberty, the right to a fair hearing and the right to equality before the law under the Victorian Charter.

Facts

On 16 December 2011, Justice Emerton overturned an order that a person with an intellectual disability who had failed to pay fines should be jailed. Mr Taha had been unable to meet repayments under an imprisonment in lieu order pursuant to section 160 of the Infringements Act 2006 (Vic). On 12 January, the OPP filed Applications for Leave to Appeal.

Mr Taha appeared at Broadmeadows Magistrates Court in relation to $11,250.20 of unpaid fines – mostly public transport matters – in 2009. Unbeknownst to the duty lawyer or Court at the time, he had an intellectual disability and was on a Justice Plan – an order under the Sentencing Act, which is available only to persons with intellectual disability. The Magistrate made an order under section 160(1) of the Infringements Act that he pay the fines in instalments of $80 per month or face automatic imprisonment. Mr Taha, a disability support pensioner, did not pay the outstanding amount beyond $1280. The Sheriff contacted him indicating he would be imprisoned for 81 days and Mr Taha consequently sought the assistance of Victoria Legal Aid.

Victoria Legal Aid sought judicial review of the section 160 order on behalf of Mr Taha in the Supreme Court. The Victorian Equal Opportunity and Human Rights Commission (VEOHRC) intervened in support of Mr Taha’s arguments that his Charter rights under sections 8, 21 and 24 of the Charter – recognition and equality before the law, liberty and fair hearing – were infringed. The Broadmeadows Magistrates’ Court took an unusually active role in proceedings, opposing the application for judicial review.

Decision

Her Honour found there to be first, a denial of procedural fairness and second, a jurisdictional error, in that the Magistrate did not consider whether sub-section 160(2) applied. Sub-section 160(2) enables Magistrates to dismiss fines if people have ‘special circumstances’. ‘Special Circumstances’ are defined in the Act as: any mental or intellectual disability, disorder, disease or illness or a serious addiction to substances, which render a person unable to understand that they are offending or control their conduct. Alternatively, it may be homelessness, which leads to inability to control conduct. Sub-section 160(3) allows dismissal if imprisonment would be excessive, disproportionate and unduly harsh. Mr Taha had in fact had subsequent fines revoked on the grounds of his special circumstances.

Mr Taha’s counsel argued for a ‘unified’ approach to section 160, meaning that the possibility of dismissal under sub-sections 160(2) and (3) must be considered before an imprisonment in lieu order is made under sub-section 160(1). Her Honour held that such a unified approach was supported by the Charter rights to liberty, a fair hearing and to equal protection of the law. Invoking principles of indirect discrimination, Her Honour held that the right to equality under section 8 of the Charter meant that the Court may be required to make inquiries of the infringement offender aimed at ascertaining whether subsections 160(2) or (3) applied. She stated:

It is in the nature of an intellectual disability or a mental illness that it may prevent the offender from  . . . raising the condition with the Court. It would defeat the purpose  . . . if it could only be enlivened by the actions of a person burdened by a condition that may disable them from forming and exercising the necessary judgement to do so.

In finding a duty to inquire (a duty, which is rarely applied in our adversarial system), Her Honour recognised:

• the requirement of special treatment for people with intellectual disabilities, which is ‘reinforced’ by section 8(3) of the Charter;
• that the relevant inquiries, such as of the type of Centrelink benefit Mr Taha received or whether he was on a Justice Plan, could easily be made; and
• that representation by duty lawyers with significant workloads does not necessarily constitute ‘adversarial’ justice;  whereby it can be assumed that all relevant facts are before the Court.

Relevance of the Victorian Charter

In focusing on a substantially just outcome, which recognises the difficulties faced by people with disabilities in their interaction with the legal system, Her Honour’s decision is most welcome and a successful appeal against it will be a retrograde step for human rights as recognised in the Charter.

Aside from the rights pertaining more specifically to persons with disabilities, the consolidated cases of Taha and Brookes highlight a more general and grave systemic problem in Victoria’s legal system – the absence of an accessible avenue of merits-based appeal against orders to imprison people for non-payment of fines. Victoria Legal Aid, whose duty lawyers see an increasing number of imprisonment in lieu orders being made, is lobbying for introduction of such an appeal right.

The decision can be found online at: http://www.austlii.edu.au/au/cases/vic/VSC/2011/642.html

Sophie Delaney is a Senior Lawyer with Victoria Legal Aid’s Civil Justice Program

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 November 2011, the Victorian Civil and Administrative Tribunal delivered judgments in three matters, each dealing with applications for exemption from the Equal Opportunity Act 2010 (Vic) (EOA) to enable the limiting of employment in specified roles to Indigenous persons.

The Victorian Equal Opportunity and Human Rights Commission intervened under s 159 of the EOA in all three matters to provide assistance to the Tribunal, in particular in relation to the operation of the new special measures provision at s 12 of the EOA and the application of the new factors for consideration in deciding exemption applications at s 90 of the EOA.

These are the first decisions of their kind under the EOA which came into force on 1 August 2011. They provide detailed consideration of the operation of the special measures provision under the EOA and the right to equality under s 8 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

Facts

Parks Victoria applied to the Tribunal for an exemption from certain provisions of the EOA to enable it to advertise for and employ only Indigenous persons, with preference to be given to members of the Wurundjeri Tribe Land Compensation & Cultural Heritage Council Inc, in field and office based positions working to care and protect Wurundjeri country.

Cummeragunja Housing & Development Aboriginal Corporation sought an exemption to enable it to advertise for and employ only Indigenous persons in the positions of Mental Health Worker, Aboriginal Health Worker, Trainee Aboriginal Health Worker and Administration Trainee.

The Ian Potter Museum of Art applied to the Tribunal for an exemption to enable it to advertise for and employ only an Indigenous person in the role of Vizard Foundation Assistance Curator.

Decisions

In each case, the Tribunal held that the proposed conduct constituted a special measure and was, therefore, not discrimination for the purposes of the EOA. As such, the Tribunal found there was no need for an exemption and the applications were struck out under paragraph 75(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).

Section 90 of the EOA sets out the factors that must be considered by the Tribunal in deciding whether to grant an exemption. Those factors include:

• whether the proposed exemption is unnecessary, either because the proposed conduct does not constitute prohibited discrimination or an exception or exemption already applies; and
• whether the proposed exemption is a reasonable limitation on the right to equality set out in the Charter.

Whether the proposed exemption is unnecessary

In each case, the Tribunal found that the exemption was unnecessary as the proposed conduct constituted a special measure under s 12 of the EOA. Section 12 relevantly provides:

• A person may take a special measure for the purpose of promoting or realising substantive equality for members of a group with a particular attribute.
• A person does not discriminate against another person by taking a special measure.
• A special measure must –

a)     be undertaken in good faith for achieving the purpose set out in subsection (1); and

b)     be reasonably likely to achieve the purpose set out in subsection (1); and

c)     be a proportionate means of achieving the purpose set out in subsection (1); and

d)     be justified because the members of the group have a particular need for advancement or assistance.

In Parks Victoria, the Tribunal found that the proposed conduct was intended to be engaged in for the purpose of providing employment opportunities to Indigenous people, to increase the number of Indigenous people employed by the applicant, to provide opportunities of connection and care for the Wurundjeri country by its traditional owners and also for the maintenance of the culture associated with the country. The Tribunal found that those purposes had the broader purpose of realising substantive equality for Indigenous persons and was satisfied that it would be undertaken in good faith. The Tribunal found that the proposed conduct was reasonably likely to achieve the purpose as the persons offered employment would benefit, as well as Indigenous people more broadly. The Tribunal was satisfied that the measure was proportionate in light of the fact that, at the time the application was made, only 7.6% of Parks Victoria’s workforce were Indigenous.

In Cummeragunja, the Tribunal considered that the proposed conduct was intended to be engaged in for the purpose of providing employment opportunities for Indigenous applicants, as well as for providing health services to local Indigenous people in a manner that is most relevant and appropriate. The Tribunal found that those purposes also had the broader purpose of promoting substantive equality for Indigenous people. The Tribunal was satisfied that the proposed conduct would be undertaken in good faith. The proposed conduct was regarded by the Tribunal as being reasonably likely to achieve the purpose as the individuals employed, as well as the broader Indigenous community, would benefit. In addition, it was found that, by having Indigenous staff provide the health and administrative services required, it was likely that the health services would be provided in a manner that was most relevant and appropriate. At the time of making the application, there were almost equal numbers of Indigenous to non-Indigenous staff employed at Cummeragunja, while 95% of people using the services were Indigenous. In light of those statistics, the Tribunal was satisfied that the measures were proportionate.

In The Ian Potter Museum of Art, the Tribunal held that the proposed conduct was intended to be engaged in for the purpose of providing an employment opportunity for an Indigenous person and to address the Museum’s intention to increase the number of Indigenous persons it employs to better reflect the proportion of Indigenous persons in the Australian population. The Tribunal found that those purposes had the broader purpose of promoting substantive equality for Indigenous people and was satisfied that the proposed conduct would be undertaken in good faith. The Tribunal also found that the proposed conduct was reasonably likely to achieve the purpose as the persons offered employment, and Indigenous people more broadly, would benefit. The Tribunal found that the measure was proportionate given that the proportion of Indigenous staff was dramatically less than the number required to represent the proportion of Indigenous people in the wider population.

In making each of the findings, the Tribunal took judicial notice of information from the Australian Bureau of Statistics in support of its finding that Indigenous people have a particular need for advancement and assistance.

Whether the proposed exemption is a reasonable limitation on the right to equality

The Tribunal proceeded to consider in each of the matters whether the proposed exemptions were reasonable limitations on the right to equality at s 8 of the Charter. In each case, the Tribunal was satisfied that the proposed conduct met the description at s 8(4) of the Charter as they were “[m]easures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination”. Section 8(4) of the Charter provides that such conduct does not constitute discrimination. The Tribunal was therefore satisfied that the proposed conduct was a special measure under the Charter and, therefore, would not limit the right to equality.

Implications

Special measures

The new EOA sought to clarify that special measures are not unlawful discrimination. With these decisions, the Tribunal has confirmed that where proposed conduct is found to constitute a special measure, an exemption is not required as there is no discrimination.

The Tribunal identified how to determine whether the proposed conduct constitutes a special measure stating that the definition set out at s 12(1) of the EOA comprises a test. In relation to the additional factors set out at s 12(3), the Tribunal held that they have a dual role of being further requirements that must be met, as well as going to whether the definition at s 12(1) is satisfied.  The Tribunal considered that this latter role was appropriate given that the factors at s 12(3) are consistent with previous case law considering whether special measures provisions in legislation other than the EOA are established.

In considering whether the special measure is justified because the members of the group have a particular need for advancement or assistance as required by s12(3)(d), the Tribunal held that it is not necessary for the whole group to be disadvantaged, so long as disadvantage applies to an overwhelming majority.

Charter

Section 90(b) of the EOA also now explicitly requires the Tribunal to consider whether the proposed exemption is a reasonable limitation on the right to equality at s 8 of the Charter. The Tribunal noted that the right to equality encompasses a number of rights, some of which import, to some extent, the meaning of discrimination under the EOA. As such, the Tribunal stated that arguably, where a special measure applies under the EOA, the rights which turn on discrimination in s 8 of the Charter will not arise.

However, in all three cases, the Tribunal nevertheless went on to consider whether the right to equality had been limited without reference to its finding that the proposed conduct constituted a special measure under the EOA. If reference to that finding about the scope of the Charter right had been followed, the Tribunal may have found that the right to equality was not limited on the basis that the conduct constituted a special measure under the EOA and was, therefore, not discriminatory. The Tribunal decided not to take into account that finding on the basis that “given the expansive and important objects of the Charter, it would be inappropriate to exclude consideration of the protected rights with an overly technical reading of the legislation”.

The Tribunal noted that s 8(4) of the Charter, contains a provision similar to the special measures provision in the Charter.  It provides that “[m]easures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination”.  The Tribunal held that the Charter provision is narrower in scope than the special measures provision under the EOA because the Charter provision requires that the disadvantage which the special measure seeks to remedy must exist “because of discrimination”.  The Tribunal held that where the proposed conduct is a special measure under the EOA, but not under the Charter, “it would be necessary to have recourse to the justification test in the Charter”.

The decision for Parks Victoria can be found online at http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2011/2238.html

The decision for Cummeragunja can be found online at http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2011/2237.html

The decision for The Ian Potter Museum of Art can be found online at http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2011/2236.html

Leana Papaelia is a Legal Officer at the Victorian Equal Opportunity & Human Rights Commission

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 November 2011, the Victorian Civil and Administrative Tribunal delivered judgments in three matters, each dealing with applications for exemption from the Equal Opportunity Act 2010 (Vic) (EOA) to enable the limiting of employment in specified roles to Indigenous persons.

The Victorian Equal Opportunity and Human Rights Commission intervened under s 159 of the EOA in all three matters to provide assistance to the Tribunal, in particular in relation to the operation of the new special measures provision at s 12 of the EOA and the application of the new factors for consideration in deciding exemption applications at s 90 of the EOA.

These are the first decisions of their kind under the EOA which came into force on 1 August 2011. They provide detailed consideration of the operation of the special measures provision under the EOA and the right to equality under s 8 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

Facts

Parks Victoria applied to the Tribunal for an exemption from certain provisions of the EOA to enable it to advertise for and employ only Indigenous persons, with preference to be given to members of the Wurundjeri Tribe Land Compensation & Cultural Heritage Council Inc, in field and office based positions working to care and protect Wurundjeri country.

Cummeragunja Housing & Development Aboriginal Corporation sought an exemption to enable it to advertise for and employ only Indigenous persons in the positions of Mental Health Worker, Aboriginal Health Worker, Trainee Aboriginal Health Worker and Administration Trainee.

The Ian Potter Museum of Art applied to the Tribunal for an exemption to enable it to advertise for and employ only an Indigenous person in the role of Vizard Foundation Assistance Curator.

Decisions

In each case, the Tribunal held that the proposed conduct constituted a special measure and was, therefore, not discrimination for the purposes of the EOA. As such, the Tribunal found there was no need for an exemption and the applications were struck out under paragraph 75(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).

Section 90 of the EOA sets out the factors that must be considered by the Tribunal in deciding whether to grant an exemption. Those factors include:

• whether the proposed exemption is unnecessary, either because the proposed conduct does not constitute prohibited discrimination or an exception or exemption already applies; and
• whether the proposed exemption is a reasonable limitation on the right to equality set out in the Charter.

Whether the proposed exemption is unnecessary

In each case, the Tribunal found that the exemption was unnecessary as the proposed conduct constituted a special measure under s 12 of the EOA. Section 12 relevantly provides:

• A person may take a special measure for the purpose of promoting or realising substantive equality for members of a group with a particular attribute.
• A person does not discriminate against another person by taking a special measure.
• A special measure must –

a)     be undertaken in good faith for achieving the purpose set out in subsection (1); and

b)     be reasonably likely to achieve the purpose set out in subsection (1); and

c)     be a proportionate means of achieving the purpose set out in subsection (1); and

d)     be justified because the members of the group have a particular need for advancement or assistance.

In Parks Victoria, the Tribunal found that the proposed conduct was intended to be engaged in for the purpose of providing employment opportunities to Indigenous people, to increase the number of Indigenous people employed by the applicant, to provide opportunities of connection and care for the Wurundjeri country by its traditional owners and also for the maintenance of the culture associated with the country. The Tribunal found that those purposes had the broader purpose of realising substantive equality for Indigenous persons and was satisfied that it would be undertaken in good faith. The Tribunal found that the proposed conduct was reasonably likely to achieve the purpose as the persons offered employment would benefit, as well as Indigenous people more broadly. The Tribunal was satisfied that the measure was proportionate in light of the fact that, at the time the application was made, only 7.6% of Parks Victoria’s workforce were Indigenous.

In Cummeragunja, the Tribunal considered that the proposed conduct was intended to be engaged in for the purpose of providing employment opportunities for Indigenous applicants, as well as for providing health services to local Indigenous people in a manner that is most relevant and appropriate. The Tribunal found that those purposes also had the broader purpose of promoting substantive equality for Indigenous people. The Tribunal was satisfied that the proposed conduct would be undertaken in good faith. The proposed conduct was regarded by the Tribunal as being reasonably likely to achieve the purpose as the individuals employed, as well as the broader Indigenous community, would benefit. In addition, it was found that, by having Indigenous staff provide the health and administrative services required, it was likely that the health services would be provided in a manner that was most relevant and appropriate. At the time of making the application, there were almost equal numbers of Indigenous to non-Indigenous staff employed at Cummeragunja, while 95% of people using the services were Indigenous. In light of those statistics, the Tribunal was satisfied that the measures were proportionate.

In The Ian Potter Museum of Art, the Tribunal held that the proposed conduct was intended to be engaged in for the purpose of providing an employment opportunity for an Indigenous person and to address the Museum’s intention to increase the number of Indigenous persons it employs to better reflect the proportion of Indigenous persons in the Australian population. The Tribunal found that those purposes had the broader purpose of promoting substantive equality for Indigenous people and was satisfied that the proposed conduct would be undertaken in good faith. The Tribunal also found that the proposed conduct was reasonably likely to achieve the purpose as the persons offered employment, and Indigenous people more broadly, would benefit. The Tribunal found that the measure was proportionate given that the proportion of Indigenous staff was dramatically less than the number required to represent the proportion of Indigenous people in the wider population.

In making each of the findings, the Tribunal took judicial notice of information from the Australian Bureau of Statistics in support of its finding that Indigenous people have a particular need for advancement and assistance.

Whether the proposed exemption is a reasonable limitation on the right to equality

The Tribunal proceeded to consider in each of the matters whether the proposed exemptions were reasonable limitations on the right to equality at s 8 of the Charter. In each case, the Tribunal was satisfied that the proposed conduct met the description at s 8(4) of the Charter as they were “[m]easures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination”. Section 8(4) of the Charter provides that such conduct does not constitute discrimination. The Tribunal was therefore satisfied that the proposed conduct was a special measure under the Charter and, therefore, would not limit the right to equality.

Implications

Special measures

The new EOA sought to clarify that special measures are not unlawful discrimination. With these decisions, the Tribunal has confirmed that where proposed conduct is found to constitute a special measure, an exemption is not required as there is no discrimination.

The Tribunal identified how to determine whether the proposed conduct constitutes a special measure stating that the definition set out at s 12(1) of the EOA comprises a test. In relation to the additional factors set out at s 12(3), the Tribunal held that they have a dual role of being further requirements that must be met, as well as going to whether the definition at s 12(1) is satisfied.  The Tribunal considered that this latter role was appropriate given that the factors at s 12(3) are consistent with previous case law considering whether special measures provisions in legislation other than the EOA are established.

In considering whether the special measure is justified because the members of the group have a particular need for advancement or assistance as required by s12(3)(d), the Tribunal held that it is not necessary for the whole group to be disadvantaged, so long as disadvantage applies to an overwhelming majority.

Charter

Section 90(b) of the EOA also now explicitly requires the Tribunal to consider whether the proposed exemption is a reasonable limitation on the right to equality at s 8 of the Charter. The Tribunal noted that the right to equality encompasses a number of rights, some of which import, to some extent, the meaning of discrimination under the EOA. As such, the Tribunal stated that arguably, where a special measure applies under the EOA, the rights which turn on discrimination in s 8 of the Charter will not arise.

However, in all three cases, the Tribunal nevertheless went on to consider whether the right to equality had been limited without reference to its finding that the proposed conduct constituted a special measure under the EOA. If reference to that finding about the scope of the Charter right had been followed, the Tribunal may have found that the right to equality was not limited on the basis that the conduct constituted a special measure under the EOA and was, therefore, not discriminatory. The Tribunal decided not to take into account that finding on the basis that “given the expansive and important objects of the Charter, it would be inappropriate to exclude consideration of the protected rights with an overly technical reading of the legislation”.

The Tribunal noted that s 8(4) of the Charter, contains a provision similar to the special measures provision in the Charter.  It provides that “[m]easures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination”.  The Tribunal held that the Charter provision is narrower in scope than the special measures provision under the EOA because the Charter provision requires that the disadvantage which the special measure seeks to remedy must exist “because of discrimination”.  The Tribunal held that where the proposed conduct is a special measure under the EOA, but not under the Charter, “it would be necessary to have recourse to the justification test in the Charter”.

The decision for Parks Victoria can be found online at http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2011/2238.html

The decision for Cummeragunja can be found online at http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2011/2237.html

The decision for The Ian Potter Museum of Art can be found online at http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2011/2236.html

Leana Papaelia is a Legal Officer at the Victorian Equal Opportunity & Human Rights Commission

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 November 2011, the Victorian Civil and Administrative Tribunal delivered judgments in three matters, each dealing with applications for exemption from the Equal Opportunity Act 2010 (Vic) (EOA) to enable the limiting of employment in specified roles to Indigenous persons.

The Victorian Equal Opportunity and Human Rights Commission intervened under s 159 of the EOA in all three matters to provide assistance to the Tribunal, in particular in relation to the operation of the new special measures provision at s 12 of the EOA and the application of the new factors for consideration in deciding exemption applications at s 90 of the EOA.

These are the first decisions of their kind under the EOA which came into force on 1 August 2011. They provide detailed consideration of the operation of the special measures provision under the EOA and the right to equality under s 8 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

Facts

Parks Victoria applied to the Tribunal for an exemption from certain provisions of the EOA to enable it to advertise for and employ only Indigenous persons, with preference to be given to members of the Wurundjeri Tribe Land Compensation & Cultural Heritage Council Inc, in field and office based positions working to care and protect Wurundjeri country.

Cummeragunja Housing & Development Aboriginal Corporation sought an exemption to enable it to advertise for and employ only Indigenous persons in the positions of Mental Health Worker, Aboriginal Health Worker, Trainee Aboriginal Health Worker and Administration Trainee.

The Ian Potter Museum of Art applied to the Tribunal for an exemption to enable it to advertise for and employ only an Indigenous person in the role of Vizard Foundation Assistance Curator.

Decisions

In each case, the Tribunal held that the proposed conduct constituted a special measure and was, therefore, not discrimination for the purposes of the EOA. As such, the Tribunal found there was no need for an exemption and the applications were struck out under paragraph 75(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).

Section 90 of the EOA sets out the factors that must be considered by the Tribunal in deciding whether to grant an exemption. Those factors include:

• whether the proposed exemption is unnecessary, either because the proposed conduct does not constitute prohibited discrimination or an exception or exemption already applies; and
• whether the proposed exemption is a reasonable limitation on the right to equality set out in the Charter.

Whether the proposed exemption is unnecessary

In each case, the Tribunal found that the exemption was unnecessary as the proposed conduct constituted a special measure under s 12 of the EOA. Section 12 relevantly provides:

• A person may take a special measure for the purpose of promoting or realising substantive equality for members of a group with a particular attribute.
• A person does not discriminate against another person by taking a special measure.
• A special measure must –

a)     be undertaken in good faith for achieving the purpose set out in subsection (1); and

b)     be reasonably likely to achieve the purpose set out in subsection (1); and

c)     be a proportionate means of achieving the purpose set out in subsection (1); and

d)     be justified because the members of the group have a particular need for advancement or assistance.

In Parks Victoria, the Tribunal found that the proposed conduct was intended to be engaged in for the purpose of providing employment opportunities to Indigenous people, to increase the number of Indigenous people employed by the applicant, to provide opportunities of connection and care for the Wurundjeri country by its traditional owners and also for the maintenance of the culture associated with the country. The Tribunal found that those purposes had the broader purpose of realising substantive equality for Indigenous persons and was satisfied that it would be undertaken in good faith. The Tribunal found that the proposed conduct was reasonably likely to achieve the purpose as the persons offered employment would benefit, as well as Indigenous people more broadly. The Tribunal was satisfied that the measure was proportionate in light of the fact that, at the time the application was made, only 7.6% of Parks Victoria’s workforce were Indigenous.

In Cummeragunja, the Tribunal considered that the proposed conduct was intended to be engaged in for the purpose of providing employment opportunities for Indigenous applicants, as well as for providing health services to local Indigenous people in a manner that is most relevant and appropriate. The Tribunal found that those purposes also had the broader purpose of promoting substantive equality for Indigenous people. The Tribunal was satisfied that the proposed conduct would be undertaken in good faith. The proposed conduct was regarded by the Tribunal as being reasonably likely to achieve the purpose as the individuals employed, as well as the broader Indigenous community, would benefit. In addition, it was found that, by having Indigenous staff provide the health and administrative services required, it was likely that the health services would be provided in a manner that was most relevant and appropriate. At the time of making the application, there were almost equal numbers of Indigenous to non-Indigenous staff employed at Cummeragunja, while 95% of people using the services were Indigenous. In light of those statistics, the Tribunal was satisfied that the measures were proportionate.

In The Ian Potter Museum of Art, the Tribunal held that the proposed conduct was intended to be engaged in for the purpose of providing an employment opportunity for an Indigenous person and to address the Museum’s intention to increase the number of Indigenous persons it employs to better reflect the proportion of Indigenous persons in the Australian population. The Tribunal found that those purposes had the broader purpose of promoting substantive equality for Indigenous people and was satisfied that the proposed conduct would be undertaken in good faith. The Tribunal also found that the proposed conduct was reasonably likely to achieve the purpose as the persons offered employment, and Indigenous people more broadly, would benefit. The Tribunal found that the measure was proportionate given that the proportion of Indigenous staff was dramatically less than the number required to represent the proportion of Indigenous people in the wider population.

In making each of the findings, the Tribunal took judicial notice of information from the Australian Bureau of Statistics in support of its finding that Indigenous people have a particular need for advancement and assistance.

Whether the proposed exemption is a reasonable limitation on the right to equality

The Tribunal proceeded to consider in each of the matters whether the proposed exemptions were reasonable limitations on the right to equality at s 8 of the Charter. In each case, the Tribunal was satisfied that the proposed conduct met the description at s 8(4) of the Charter as they were “[m]easures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination”. Section 8(4) of the Charter provides that such conduct does not constitute discrimination. The Tribunal was therefore satisfied that the proposed conduct was a special measure under the Charter and, therefore, would not limit the right to equality.

Implications

Special measures

The new EOA sought to clarify that special measures are not unlawful discrimination. With these decisions, the Tribunal has confirmed that where proposed conduct is found to constitute a special measure, an exemption is not required as there is no discrimination.

The Tribunal identified how to determine whether the proposed conduct constitutes a special measure stating that the definition set out at s 12(1) of the EOA comprises a test. In relation to the additional factors set out at s 12(3), the Tribunal held that they have a dual role of being further requirements that must be met, as well as going to whether the definition at s 12(1) is satisfied.  The Tribunal considered that this latter role was appropriate given that the factors at s 12(3) are consistent with previous case law considering whether special measures provisions in legislation other than the EOA are established.

In considering whether the special measure is justified because the members of the group have a particular need for advancement or assistance as required by s12(3)(d), the Tribunal held that it is not necessary for the whole group to be disadvantaged, so long as disadvantage applies to an overwhelming majority.

Charter

Section 90(b) of the EOA also now explicitly requires the Tribunal to consider whether the proposed exemption is a reasonable limitation on the right to equality at s 8 of the Charter. The Tribunal noted that the right to equality encompasses a number of rights, some of which import, to some extent, the meaning of discrimination under the EOA. As such, the Tribunal stated that arguably, where a special measure applies under the EOA, the rights which turn on discrimination in s 8 of the Charter will not arise.

However, in all three cases, the Tribunal nevertheless went on to consider whether the right to equality had been limited without reference to its finding that the proposed conduct constituted a special measure under the EOA. If reference to that finding about the scope of the Charter right had been followed, the Tribunal may have found that the right to equality was not limited on the basis that the conduct constituted a special measure under the EOA and was, therefore, not discriminatory. The Tribunal decided not to take into account that finding on the basis that “given the expansive and important objects of the Charter, it would be inappropriate to exclude consideration of the protected rights with an overly technical reading of the legislation”.

The Tribunal noted that s 8(4) of the Charter, contains a provision similar to the special measures provision in the Charter.  It provides that “[m]easures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination”.  The Tribunal held that the Charter provision is narrower in scope than the special measures provision under the EOA because the Charter provision requires that the disadvantage which the special measure seeks to remedy must exist “because of discrimination”.  The Tribunal held that where the proposed conduct is a special measure under the EOA, but not under the Charter, “it would be necessary to have recourse to the justification test in the Charter”.

The decision for Parks Victoria can be found online at http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2011/2238.html

The decision for Cummeragunja can be found online at http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2011/2237.html

The decision for The Ian Potter Museum of Art can be found online at http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2011/2236.html

Leana Papaelia is a Legal Officer at the Victorian Equal Opportunity & Human Rights Commission

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 late stages of her labour, violated her right to private life and the prohibition against torture and ill-treatment.

Facts

The applicant, VC, is of Roma ethnic origin, living in North-East Slovakia. Born in 1980, VC finished compulsory schooling in sixth grade and at the time of the case, was unemployed. She speaks the Roma language and a local dialect in her day-to-day activities.

In August 2000, VC gave birth to her second child by Caesarean section at the public Prešov Hospital. During the procedure, the hospital sterilised VC by severing and sealing her fallopian tubes to prevent future fertilisation.

According to the hospital, VC had consented to the procedure after having been informed of the medical risks associated with a subsequent pregnancy. VC’s signature was evident on the consent form (albeit shaky and with her surname split), and the medical records stated that “Patient requests sterilisation” at 10.30 am. The medical records also include “Patient is of Roma origin”.

According to VC however, the hospital’s account is not an accurate and complete statement of events.

VC arrived at Prešov Hospital in labour shortly before 8 am. Previously, her eldest child had been born by Caesarean section due to the small size of her pelvis. This, and post-operative complications from her first pregnancy, led to the medical decision to deliver this child also by Caesarean section. VC submitted that after several hours of being in labour and pain, the Prešov Hospital medical personnel asked her whether she wanted to have more children. VC responded that she did, but was told that if she had another child, either her or the baby would die. According to VC, she began to cry, and convinced that her next pregnancy would be fatal, she responded “do what you want to do”. She was then asked to sign the medical record that stated that she had requested sterilisation. VC did not understand the term ‘sterilisation’, and, being in the last stage of labour, her recognition and cognitive abilities were influenced by labour and pain.

At 11.30 am, VC was put under anaesthetic and the delivery was completed by Caesarean section. The two doctors involved in the delivery then performed a tubal ligation on VC. She awoke from the anaesthetic at 12.20 am.

After the birth, VC alleges that she was put in a hospital room solely for women of Roma ethnic origin, and was prevented from using the same bathrooms as women not of Roma origin.

Since the sterilisation, VC has suffered from serious medical and psychological after effects, including a phantom pregnancy. As a result of her sterilisation, VC has also been ostracised from the Roma community, separating, and ultimately divorcing, from her husband due to her inability to have further children.

Decision

The Court found that Slovakia had breached VC’s right to freedom from torture or inhuman or degrading treatment or punishment under article 3 of the European Convention, which “enshrines one of the most fundamental values of democratic society” (at [100]). In addition, the Court found that Slovakia had breached VC’s right to private and family life under article 8 of the Convention.

VC also submitted that her rights to marry and found a family under article 12, to an effective remedy under article 13, and to freedom from discrimination on the base of race and sex under article 14 of the Convention had been breached. The Court however found that it was not necessary to separately determine whether the facts of the case gave rise to breaches of articles 12 and 14, and that there was no breach of article 13 when taken into consideration with the other breaches.

The Court’s approach to each of these submissions are discussed in turn below.

Article 3

Article 3 of the Convention contains the right to freedom from torture or inhuman or degrading treatment or punishment. In order to engage the operation of this article, the ill-treatment must be of a minimum level of severity, determined by consideration of the circumstances of the case.

The Court referred to precedent which has established that the treatment of a person by a State engages article 3 where it results in bodily harm of a certain degree of severity. Medical necessity is however a logical exception to the operation of article 3 under these circumstances, but must be proven and still follow procedural guarantees and protections. In particular, given the “very essence of the Convention is respect for human dignity [and] freedom”, free, full and informed consent is fundamental to any medical procedures, even where necessary (excluding certain emergency situations).

The Court found that sterilisation resulted in bodily harm to VC of a sufficient severity to engage operation of article 3. In particular, the Court held that:

sterilisation constitutes a major interference with a person’s reproductive health status. As it concerns one of the essential bodily functions of human beings, it bears on manifold aspects of the individual’s personal integrity including his or her physical and mental well-being and emotional, spiritual and family life. It may be legitimately performed at the request of the person concerned, for example as a method of contraception, or for therapeutic purposes where the medical necessity has been convincingly established.

VC began her legal action after the release of the report ‘Body and Soul: Forced and Coercive Sterilisation and Other Assaults on Roma Reproductive Freedom in Slovakia” which informed VC that a tubal ligation was not a life-saving surgery, and that full and informed consent was required to perform the procedure.

The Court addressed the difficulties faced by courts when assessing the application of the law to cases of medical necessity, stating (at [110]) that “it is not the Court’s role to review the assessment by medical doctors of the state of health of the applicant’s reproductive organs”. Having referred to a series of international reports on human rights and sterilisation, the Court continued: “however, it is relevant to note that sterilisation is not generally considered as a life-saving surgery … as there was no emergency involving imminent risk of irreparable damage to the applicant’s life or health, and since the applicant was a mentally competent adult patient, her informed consent was a prerequisite to the procedure, even assuming that it was a ‘necessity’ from a medical point of view.”

The Court found that the approach taken by the doctors at Prešov Hospital was incompatible with VC’s human rights; in particular, “such a threat was not imminent as it was likely to materialise only in the event of a future pregnancy and it could also have been prevented by means of alternative, less intrusive methods”.

The Court concluded that there was no indication that there was any unique medical necessity to perform the sterilisation. Regardless of a medical necessity, in the absence of an emergency situation, the Court found that VC had not given free, full and informed consent to her sterilisation as required by international standards under the Convention on Human Rights and Biomedicine, the WHO Declaration on the Promotion of Patients’ Rights in Europe, and CEDAW General Recommendation No. 24.

The Court also made a statement with respect to “paternalistic” decision making by treating medical practitioners, stating that “the applicant’s informed consent could not be dispensed with on the basis of an assumption on the part of the hospital staff that she would act in an irresponsible manner with regard to her health in the future” (at [113]). While this statement is made in respect of the facts of this case, it provides a useful summary of principle regarding determinations in the “best interests of the patient” by doctors.

Article 8

It was not disputed between the parties that the sterilisation affected VC’s reproductive health status, and had repercussions for her private and family life. VC submitted that Slovakia had failed in its positive obligation under article 8 to ensure that her private life was not interfered with by not securing the rights guaranteed under article 8 in the Slovakian legal system. In particular, Slovakia was under a positive obligation to ensure that the reproductive health of women of Roma origin was protected through legal safeguards (at [145]).

Documents were tended before the Court that included concerns from the Council of Europe Commissioner of Human Rights that the Roma population of eastern Slovakia was at particular risk of improper sterilisations. These documents included recommendations that more adequate safeguards be developed to protect Roma women from inappropriate sterilisations and discrimination. The identification of VC’s ethnic origin in her medical reports, and testimony from the treating doctors that stated that VC’s case was “the same as in other similar cases”, was deemed by the Court to demonstrate the medical staff’s negative opinion of Roma patients, rather than the basis of implementing more specialised care.

Whilst Slovakia had taken steps to amend its healthcare legislation to ensure fully informed consent was obtained in sterilisation procedures, these amendments were subsequent to the facts of VC’s case. The Court found that VC’s case in fact demonstrated that the laws at that time were not sufficient. As a result, the absence of the relevant legal safeguards to protect the reproductive health of VC as a Roma woman resulted in a failure by Slovakia to comply with its positive obligation to secure protections to enable her to enjoy her right to respect for private and family life.

Article 12

Similar to article 14 below, the Court found that it was not necessary to determine article 12 separately in light of findings under article 8 of the Convention. Article 12 expresses the right to marry and found a family. VC submitted that her right to found a family was breached by the sterilisation. The Court found that the sterilisation did have a serious impact on her family life, however as this was considered and found for under examination of article 8, the Court held that it was absolved from separately determining a breach under article 12.

Article 13

VC submitted that she was not provided with an effective remedy in respect of her complaints relating to articles 3, 8 and 12 of the Convention. Article 13 provides that where an individual’s rights under the Convention have been violated, they shall have an effective remedy from the State. The Court found no breach of this article as VC had had two opportunities for her case to be reviewed at the domestic level. The Court reiterated that an “effective” remedy need not be a “successful” one (at [165-166]).

Article 14

Article 14 prevents discrimination against a person on the basis of, inter alia, race and gender. VC submitted to the Court that her ethnic origin had played a decisive role in the Prešov Hospital medical personnel’s decision to sterilise her. Referencing the Convention on the Elimination of all forms of Discrimination Against Women, VC also submitted that the differentiation of level of medical care between men and women in the health services was a breach of the prohibition of discrimination on the grounds of sex, and the sterilisation performed on her without her informed consent amounted to a form of violence against women. The Court found that there was not sufficiently strong evidence to prove VC’s submissions under this article, but rather than find no breach, the Court found that it was more appropriate to deal with these matters as part of the failure of the State to perform its obligations in respect of article 8.

It was under this article 14 that the dissenting judge, Mijovic J, differed from the majority. Mijovic J held that a breach of article 14 should have been considered separately, and having done so, found that article 14 had indeed been breached by Slovakia.  Mijovic J found that the “special attention” granted to VC as a Roma woman was to sterilise her, and in a short, but sharp, dissenting judgement on article 14, held that this case demonstrated the “relics of a long-standing attitude towards the Roma minority in Slovakia” which “represents the strongest form of discrimination”.

The case is available at: http://www.bailii.org/eu/cases/ECHR/2011/1888.html

Alexandra Phelan is a lawyer with the Mallesons Stephen Jaques Human Rights Law Group

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 and delaying necessary spinal surgery that contributed to her paralysis, violated articles 2(c), 2(f), 3, 5 and 12 of the Convention on the Elimination of All Forms of Discrimination against Women in conjunction with article 1.

Facts

L.C. was 13 years of age when she learned that she pregnant – the result of being sexually abused repeatedly by a 34 year-old man. After learning that she was pregnant, L.C. became depressed and attempted suicide by jumping from a neighbourhood building.  She survived the fall and was eventually taken to a public hospital, where it was determined that she was at risk of permanent disability and required emergency spinal surgery. Despite the serious risk to L.C., her doctors postponed the surgery because she was pregnant. L.C. requested a termination of pregnancy in accordance with article 119 of Peru’s Penal Code, which permits abortion only in cases where it is necessary to “save the life of the mother or to avoid serious and permanent harm to her health”. Hospital officials refused a request to carry out a termination because they considered that L.C.’s life was not in danger. Subsequent appeals to have the termination performed were unsuccessful. L.C. later miscarried. Doctors performed the spinal surgery on L.C. only after she miscarried and almost three and a half months after they determined that the surgery was necessary. L.C. is now paralyzed from the neck down and has regained only partial movement in her hands.

The victim’s mother, T.P.F., subsequently submitted a communication to the CEDAW Committee. She alleged that the doctors’ refusal to perform a therapeutic abortion and the delayed scheduling of spinal surgery violated L.C.’s rights to non-discrimination, to health, to an effective remedy and to decide on the number and spacing of her children and the freedom from wrongful gender stereotyping, in breach of articles 1, 2(c), 2(f), 3, 5, 12 and 16(1)(e) of CEDAW. T.P.F. also alleged violations of the right to life and the freedom from cruel, inhuman and degrading treatment. The alleged violations, T.P.F. submitted, were aggravated by L.C.’s status as a minor.

Decision

The Committee determined that Peru, through the actions of medical staff at a public hospital, had violated articles 2(c), 2(f), 3, 5 and 12 of CEDAW, read in conjunction with article 1. The Committee declined to rule on whether or not Peru had also violated article 16(1)(e).

Right to health (article 12)

The Committee determined that Peru had failed to ensure L.C. could access essential health care services, as required by article 12 of CEDAW. It explained that “owing to her condition as a pregnant woman, L.C. did not have access to an effective and accessible procedure allowing her to establish her entitlement to the medical services that her physical and mental condition required. … This is even more serious considering that she was a minor and a victim of sexual abuse, as a result of which she attempted suicide. The suicide attempt is a demonstration of the amount of mental suffering she had experienced”.

Freedom from wrongful gender stereotyping (article 5)

The Committee found that Peru had engaged in wrongful gender stereotyping, in violation of article 5 of CEDAW. In the Committee’s expert view, the decision of medical staff to delay the spinal surgery was based on the prescriptive sex-role stereotype that women should be mothers. The Committee reasoned that reliance on this stereotype had the effect of prioritising protection of the foetus over the life, health and dignity of L.C., and ultimately contributed to her becoming a paraplegic.

Right to an effective remedy and effective protection against discrimination (article 2)

The Committee determined that there was no legal remedy available in Peru capable of protecting L.C.’s right to appropriate medical care. It also noted the absence of a legal framework governing access to therapeutic abortion and determined that this had resulted “in a situation where each hospital determines arbitrarily, inter alia, what requirements are necessary [to establish eligibility for abortion], the procedure to be followed, the time frame for a decision and the importance to be placed on the views of the mother”.

The Committee concluded that, since Peru had legalised abortion in certain circumstances, it was required under CEDAW to “establish an appropriate legal framework that allows women to exercise their right to [abortion] under conditions that guarantee the necessary legal security, both for those who have recourse to abortion and for the health professionals that must perform it”. The Committee stated that the framework must: include a mechanism for rapid decision-making; ensure that the opinion of the woman or girl is a relevant factor that is taken into account in determining eligibility; require well-founded decisions; and establish a right to appeal. The Committee determined that L.C. had been denied access to an effective remedy and effective protection against discrimination, in violation of article 2(c) and 2(f) of CEDAW, because she was not able to access a procedure for requesting a therapeutic abortion that met these criteria.

The decision can be found online at: http://www2.ohchr.org/english/law/docs/CEDAW-C-50-D-22-2009_en.pdf.

Simone Cusack is Senior Policy & Research Officer in the Sex Discrimination Unit at the Australian Human Rights Commission

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 does not breach the European Convention on Human Rights.

This decision reverses an earlier finding that Austria’s Artificial Procreation Act breached the applicants’ rights to private and family life (article 8) and non- discrimination (article 14) under the Convention.

The decision focuses on state parties’ discretion when it comes to balance competing rights and interests, referred to as the “margin of appreciation”. Taking into account all the circumstances, the Court granted Austria a wide margin of appreciation in this instance.

Facts

The applicants were two married, heterosexual couples who, for biological reasons, were unable to conceive naturally. Both couples required access to IVF treatment. Additionally, the first and second applicants needed access to donated sperm, while the second and third applicants needed donated ova. Both couples were prohibited by the Act from accessing the particular treatment they sought.

Relevantly, there is no universal agreement among member states about where to draw the line in this complex and sensitive area of the law. Regulation of reproductive treatments varies from country to country. In Austria, sperm donation is permitted for the purposes of artificial insemination only, but not IVF. Many other European countries that allow sperm donation do not distinguish between its use in artificial insemination and IVF treatment. Italy, Lithuania and Turkey prohibit sperm donation altogether. Croatia, Germany, Norway and Switzerland, meanwhile, permit sperm donation but prohibit ova donation.

Germany and Italy intervened in these proceedings in support of Austria’s position.

Discussion

The applicants claimed that Austria’s restrictions on IVF interfered with their rights to procreate and found a family without discrimination.

The applicants also argued that decisions about reproduction “concerned the most intimate sphere of their private life and therefore the legislature should show particular restraint in regulating these matters”. They submitted, therefore, that Austria’s “margin of appreciation” should be narrowly conceived.

The Austrian government conceded that article 8 of the Convention was relevant in the circumstances in the case. In other words, it agreed that “the private life aspect within the meaning of Article 8.1 of the Convention also covered the desire of couples or life companions to have children as on of the essential forms of expression of their personality as human beings”.

While acknowledging that the Act limited the applicant’s rights, Austria submitted that the limitation was lawful, legitimate and necessary, bearing in mind the competing rights and interests at stake and the particular sensitivities surrounding reproductive treatments.

Specifically, Austria raised concerns about expanding access to IVF on the bases that:

• egg donation might lead to the “exploitation and humiliation” of women, particularly economically disadvantaged women by creating a marketplace for ova;
• it wanted to avoid circumstances where a child could claim to have two biological mothers (the egg donor and the woman who carried the embryo), and
• broadening access to IVF may open the gateway to lead to selective reproduction and raised “essential questions regarding the health of children…general ethics and moral values of society”.

The applicants also argued that many of these concerns relied on by Austria could be overcome by enacting supplementary legislation, such as laws prohibiting the buying or selling of ova (which already exist in Austria) and laws clarifying maternity. Further, the applicants said the Act was “illogical and inconsistent” because it permitted IVF and the use of sperm donors, but prohibited medical treatment which involved combining the two.

Decision

The decision focuses on the issue of Austria’s margin of appreciation. In other words, was the limitation on the applicant’s human rights a legitimate exercise of Austria’s discretion to balance competing rights and interests? The majority said the key issue was whether “in striking the balance at the point at which it did, the Austrian legislature exceeded the margin of appreciation afforded to it under the Article,” and not whether Austria might have reached a different (arguably fairer) solution.

On the one hand, the majority said that where a particularly important aspect of an individual’s existence or identity is at stake – as in this case – the margin allowed to the country will normally be restricted.

On the other hand, the majority said where there is no consensus among member states of the Council of Europe about the relative importance of the interests at stake, or the best means of protecting those interests, the margin afforded to each country will be wider, particularly if the case raises sensitive moral or ethical issues. Although the majority referred to an “emerging consensus” among European countries in favour of IVF using donated sperm or ova, it found that it did not significantly narrow Austria’s discretion, as the “emerging consensus” was not yet based on settled or long-standing principles.

Ultimately, the Court accepted that Austria’s conduct did not exceed its margin of appreciation, bearing in mind that the complexities and sensitivities of the issues. Therefore, the Court held that Austria had not breached the Convention.

In concluding, the majority noted the rapid change and dynamism in this area of the law, which leaves the door open to the potential for a different decision in the future.

The case can be found online at: http://www.bailii.org/eu/cases/ECHR/2011/1878.html

Emma Purdue is on secondment to the Human Rights Law Centre from Lander & Rogers

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 two articles published in 2009. Bromberg J highlighted that “[a]t the heart of any attempt to secure freedom from racial prejudice and intolerance is the protection of equality and the inherent dignity of all human beings.”

Facts

In 2009, Bolt published two articles – “It’s so hip to be black” and “White fellas in the black” – targeting a group of highly successful Aboriginal people as exemplifying the ‘trend’ of so-called ‘fair-skinned Aboriginal people’ choosing to identify as Aboriginal to gain access to personal and career-based benefits and entitlements, ahead of more deserving darker-skinned Aboriginal people. The articles emphasised the physical characteristics and biological descent of the named Aboriginal people, undermining their legitimacy to call themselves Aboriginal, instead referring to them as ‘political Aborigines’. In response, Aboriginal activist Pat Eatock and eight of the other Aboriginal people named in the articles commenced proceedings in the Federal Court, seeking an apology and injunction on re-publication.

Decision

On 28 September 2011, Bromberg J determined that the articles were reasonably like to offend, insult, humiliate and intimidate ‘fair-skinned’ Aboriginal people under section 18C of the Act. They implied that the fair-skinned Aboriginal people named were not genuinely Aboriginal, had chosen to falsely identify as Aboriginal, and that skin colour is an accurate indication of Aboriginal identity. Bromberg J emphasised that each of the Aboriginal people targeted by Bolt genuinely identifies as an Aboriginal person, and is entitled to do so. They did not ‘choose’ to be Aboriginal, and did not illegitimately or opportunistically use their Aboriginal identity for material gain. This was assessed according to the standards of a reasonable and objective fair-skinned Aboriginal person, without importing general community standards, because to do so would run the risk of reinforcing prevailing prejudice antithetical to the promotional purposes of the Act. Bromberg J also considered how the articles may affect younger and vulnerable Aboriginal people feeling as if they cannot fully identify as Aboriginal for fear of pressure, public disdain or loss of esteem.

Section 18D provides that reasonable and good faith public comments made in the public interest from being unlawful. Bromberg J found that the style, language, manner and errors within the articles prevented Bolt and HWT from claiming this exemption. While it is lawful to publish articles dealing with racial identification, including challenging the genuineness of the identification of a group of people, it is not lawful to do so in the manner in which Bolt wrote the articles in question. The articles contained multiple errors of material fact, distortions of the truth and inflammatory and provocative language. In this sense, the finding of unlawfulness was the same as would have been available under defamation law by virtue of the errors in research and reporting, contrary to journalistic guidelines.

On 19 October 2011, Bromberg J ordered the Herald Sun to publish a 500-word corrective notice next to Bolt’s column twice over the following 14 days. Re-publication of the articles was restricted to ‘historical or archival purposes’, and only where accompanied by the corrective notice. The orders were meant to redress the hurt of the Aboriginal people affected, restore the esteem and social standing lost because of the Articles, inform people about the wrongdoing of the articles and negate the dissemination of racial prejudice.

Relevance to the Victorian Charter

Whilst the decision does not involve application of the Victorian Charter, the case raises interesting questions around balancing the right to be free from racial discrimination against the right to freedom of expression. Issues of censorship, free speech, political correctness and the scope and constitutionality of Part IIA of the Act have also been canvassed in the extensive commentary on the decision.

Given the nature of much of the media reporting on the decision, an observer might be forgiven for concluding that the decision was somehow unprecedented or a departure from accepted legal principles. Arguably the judgment itself is not a radical or unexpected application of the Act. Also of note is the fact that the strategy employed by Bolt and HWT appears to have put him at a significant tactical disadvantage in regards to establishing a defence under s 18D (see para 367), which no doubt contributed to his ultimate failure. One hopes that the Federal Government will be able to bear this in mind and disregard the media hyperbole when grappling with these policy issues in the context of current reforms, namely, the review of federal anti-discrimination laws currently underway and the constitutional recognition of Aboriginal and Torres Strait Islander peoples.

Read a news item and summary of the judgment prepared by the Equal Rights Trust, an international NGO working to combat discrimination and promote equality as a fundamental human right.

The original decision can be found online at: http://www.austlii.edu.au/au/cases/cth/FCA/2011/1103.html

The orders can be found online at: http://www.austlii.edu.au/au/cases/cth/FCA/2011/1180.html

Lee Carnie is a volunteer and Anna Brown is Director of Advocacy and Strategic Litigation at the Human Rights Law Centre.

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, as a person’s immigration status involves an element of choice, the ECHR held that the justification needed for differential treatment on this basis need not be as weighty as where differential treatment is based on an inherent characteristic such as sex or nationality.

The ECHR also held that the Housing Act 1996 (UK) pursued the legitimate aim of allocating limited social housing resources fairly between applicants, and that the UK was justified in differentiating between persons seeking priority need of social housing based on whether or not a person’s immigration status prevented them from having recourse to public funds.

Facts

The applicant, Husenatu Bah, was a Sierra Leonean national who sought asylum in the UK. Although her asylum claim was rejected, she was granted indefinite leave to remain in the country. Her son later arrived in the UK subject to immigration control, on the condition that he must not have recourse to public funds. As the applicant’s landlord was unwilling to accommodate her son, she applied to Southwark Council for housing assistance in February 2007 on the basis that she had become unintentionally homeless.

Under section 189 of the Housing Act 1996 (UK), an unintentionally homeless person with a minor would typically qualify for priority need of social housing. However, pursuant to section 185(4) of the Act, because the applicant’s son was subject to immigration control, he was to be disregarded for the purposes of determining whether the applicant was in priority need. As such, the Council decided that the applicant did not qualify for priority need. This decision was upheld on review.

In September 2007, the Council helped the applicant to secure a private tenancy outside of Southwark. She remained on the waiting list for a social tenancy, and moved back to Southwark when one became available in May 2009. The applicant complained to the ECHH, alleging a violation of Article 14 of the Convention, taken in conjunction with Article 8.

Decision

Article 8 of the Convention relevantly provides that everyone has a right to respect for his or her home, and that a public authority shall not unlawfully or unnecessarily interfere with this right. Although Article 8 does not expressly provide a right to housing, the ECHR has previously held that where a State elects to provide housing benefits, it must do so in a manner that complies with Article 14. As such, the Court held that the applicant’s complaint was within the ambit of Article 8.

Article 14 relevantly provides that the rights and freedoms set out in the Convention shall be secured without discrimination on any ground such as “national or social origin” or “other status”. Here, the applicant argued that she had been discriminated against based on her son’s nationality. However, the Court held that the ground of distinction was actually her son’s immigration status. While the UK argued that this was not a relevant ground of distinction, the Court considered that it could be brought within the reference in Article 14 to discrimination based on a person’s “other status”.

In considering whether the applicant had been discriminated against on the basis of her son’s immigration status, the ECHR stated that differential treatment will be discriminatory if there is no reasonable justification for it, i.e. if the treatment does not pursue a legitimate aim, or if the means employed to achieve this aim are not proportionate to the aim. The Court stated that as a general rule, where differential treatment is based on an inherent characteristic like nationality or sex, a State will have to present “very weighty reasons” to justify the treatment. However, given that the immigration status of the applicant’s son involved an element of choice (the applicant elected to remain in the UK and chose to have her son join her), the Court held that the required justification need not be as weighty. The Court also noted that States enjoy a wide discretion on socio-economic matters such as the provision of social housing.

Applying these principles, the ECHR held that the imposition of criteria for allocating social housing is a legitimate aim, so long as these criteria are not arbitrary or discriminatory. The Court considered that there was nothing arbitrary about denying priority need status to the applicant based on the fact that her son’s presence in the UK was conditional on him not having recourse to public funds, especially given that the applicant was fully aware of and accepted this condition of her son’s entry into the UK.

The ECHR also held that the means used to realise this aim were not disproportionate. On this point, the Court was particularly influenced by the fact that even if the applicant had been determined to be in priority need of social housing, it would have made little difference because she would likely still have been temporarily housed in the private sector for several months until a social tenancy became available. Accordingly, the Court held that the differential treatment of the applicant was reasonably justified and that there was no violation of the Convention.

Relevance to the Victorian Charter

The ECHR’s finding that a person’s immigration status is a relevant ground of discrimination under the Convention is unlikely to be relevant to cases brought under the Victorian Charter. “Discrimination” is defined in the Charter to mean discrimination on the basis of an attribute set out in section 6 of the Equal Opportunity Act 2010 (Vic). Unlike the Convention, however, this list of attributes does not include “other status” or any other attribute that is likely to encompass a person’s immigration status. However, the ECHR’s comments that the weight of the reasons required to justify discriminatory treatment will vary according to whether the characteristic on which the treatment is based is inherent or involves an element of choice may offer some guidance when Victorian courts are required to consider the scope and application of the right to non-discrimination set out in section 8 of the Charter, and the circumstances in which this right may be limited under section 7(2).

The decision can be found online at: http://www.bailii.org/eu/cases/ECHR/2011/1448.html

James Kearney is a Law Graduate and Peter Haig is a Senior Associate with Allens Arthur Robinson.

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 on the Elimination of All Forms of Discrimination against Women (CEDAW), read in conjunction with article 1 and the Committee’s General Recommendation No. 19 on violence against women.

Facts

The District Court of Belarus found Inga Abramova guilty of “minor hooliganism” for hanging ribbons and posters calling for participation in the “European March,” and ordered her to serve five days administrative arrest. Abramova claimed that a male staff member subjected her to a body search, touched her inappropriately, and threatened to strip her naked. She further claimed that she was detained in an underground cell in a facility staffed entirely by men.  According to Abramova, the facility housed persons detained on criminal charges as well as those under administrative arrest. Among other things, Abramova also claimed that: she was only fed twice a day; the heating system was turned off, despite almost freezing temperatures; there was inadequate light and ventilation; other prisoners and male staff could watch her use the toilet; and she was subjected to frequent humiliating comments.

Following unsuccessful attempts to obtain redress at the domestic level, Abramova submitted a communication to the Committee in which she alleged violations of articles 2(a)-2(b), 2(e)-2(f), 3 and 5(a) of CEDAW, read in conjunction with article 1. In a further submission to the Committee, the author reiterated that her communication was concerned primarily with the discrimination she experienced as a woman detained at the aforementioned facility, rather than the conditions of detention per se.

Decision

The Committee found that Belarus’ treatment of Inga Abramova constituted discrimination and sexual harassment, in violation of articles 2(a)-2(b), 2(e)-2(f), 3 and 5(a) of CEDAW, read in conjunction with article 1 and the Committee’s General Recommendation No 19. In reaching its determination, the Committee also took into account rule 53 of the Standard Minimum Rules for Treatment of Prisoners and the UN Rules for the Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders.

In reaching its views, the Committee reiterated that failure of detention facilities to adopt a gender-sensitive approach to the specific needs of women prisoners constitutes discrimination, within the meaning of article 1 of CEDAW. Recalling rule 53 of the Standard Minimum Rules, which is consistent with the definition of discrimination against women in article 1 of CEDAW, the Committee explained that:

• In an institution for both men and women, the part of the institution set aside for women shall be under the authority of a responsible woman officer who shall have the custody of the keys of all that part of the institution.
• No male member of staff shall enter the part of the institution set aside for women unless accompanied by a woman officer.
• Women prisoners should be attended and supervised only by women officers.

The Committee further reiterated that sexual harassment is a form of gender-based violence against women that is prohibited under CEDAW.

In its recommendations, the Committee called on Belarus to provide appropriate reparation, including compensation, to Abramova. In addition, it recommended that Belarus take measures to, inter alia: protect the dignity, privacy and physical and psychological safety of women detainees; ensure access to gender-specific health care for women detainees; and provide safeguards to protect women detainees from all forms of abuse, including gender-specific abuse.

Relevance to the Victorian Charter

The Victorian Charter makes no express reference to the obligations of public authorities with respect to women prisoners. However, several Charter rights, when interpreted together, impose obligations on public authorities to adopt measures to address the specific needs of women prisoners and protect them against discrimination and harassment. These include the rights to non-discrimination and equality (s 8), freedom from torture and cruel, inhuman or degrading treatment (s 10), freedom from arbitrary interference in private life (s 13), and the right to humane treatment when deprived of liberty (s 22).

The decision is available at: http://www2.ohchr.org/english/law/docs/CEDAW-C-49-D-23-2009.pdf

Simone Cusack is Senior Policy & Research Officer in the Australian Human Rights Commission’s Sex and Age Discrimination Unit