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07. Equality/Non-Discrimination
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 [...]
High Court affirms right to gender identity and expression AB v Western Australia [2011] HCA 42 (6 October 2011) Summary The High Court delivered a unanimous judgment affirming the right of transgender people to have their gender officially recognised after undergoing medical or surgical procedures, even if not all of their reproductive organs have been [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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