Australia

The Act amends the Public Health Act 2010 No 127. It provides for 150-metre “safe access zones” around reproductive health clinics, which are intended to protect the safety and well-being of people entering and leaving such clinics, including employees. The Act creates offenses punishable with imprisonment for interfering with access to clinics (§ 98C), causing actual or potential distress or anxiety to persons in safe access zones (§ 98D), or for taking/distributing photographs of people in safe access zones (§ 98E). The Act also contains exemptions under § 98F, which states that Act does not prohibit conduct in a religious building, near Parliament House in Macquarie Street, Sydney; or “the carrying out of any survey or opinion poll by or with the authority of a candidate, or the distribution of any handbill or leaflet by or with the authority of a candidate, during the course of a Commonwealth, State or local government election, referendum or plebiscite.” In enacting the Act, NSW joined other Australian states and territories, which had already enacted laws banning the harassment of women seeking abortions.

Division 10A concerns sexual servitude, which is defined as “the condition of a person who provides sexual services and who, because of the use of force or threats is not free to cease providing sexual services, or is not free to leave the place or area where the person provides sexual services.” Section 80D provides for up to 15 years’ imprisonment for any person causing (willfully or recklessly) or attempting to cause sexual servitude (and up to 20 years if the victim is under 18 or cognitively impaired). Section 80E provides for up to 15 years for any person conducting a business involving the sexual servitude of others, or who knows about, or is reckless as to, sexual servitude (and up to 19 years if the victim is under 18 or cognitively impaired).

Section 22A, Part 2A of the Act provides that a person sexually harasses another person if “the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or the person engages in other unwelcome conduct of a sexual nature in relation to the other person, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.” Part 2A sets out various prohibitions against the harassment of employees, commission agents, contract workers and partners, and the circumstances in which the harassment may occur. On June 20, 2018, the Australian Human Rights Commission announced that it would undertake a national inquiry into sexual harassment in Australian workplaces at a federal level and make recommendations to address the issue.

The Equal Opportunity Act aims to eliminate discrimination, sexual harassment, and victimisation to the greatest extent possible and to promote equality as far as reasonably practicable. It defines and prohibits discrimination in relation to various “attributes,” including sex, sexual orientation, marital status, and pregnancy. The prohibitions apply in a range of situations, including employment-related discrimination. Sexual harassment and victimisation are also defined and prohibited. The Act also regulates the operation of the Victorian Equal Opportunity and Human Rights Commission (“VEOHRC”), its powers, and the process by which people may bring disputes concerning violations of the Act to the Commission. After investigating a dispute, the VEOHRC may refer a matter to the Victorian Civil and Administrative Tribunal, which may order a person to refrain from further violating the Act or pay compensation to the applicant for loss, damage or injury suffered.

The Family Violence Protection Act aims to maximise safety for children and adults who have experienced family violence, and to prevent and reduce family violence to the greatest extent possible. It also aims to promote accountability for those who perpetrate family violence. The Act provides for police protection before court, family violence intervention orders (and their enforcement), and counselling orders.

The Crimes Act is the principal Victorian criminal legislation setting out a range of criminal offences and penalties. In relation to gender justice, the Act prohibits sexual violence and rape, stalking, sexual assault, rape, abortion (as amended by the Abortion Law Reform Act 2008) and female genital mutilation. The Act also prohibits attempts and conspiracies to commit these offenses, and sets forth applicable procedures and defenses. The Act previously contained a defense of “defensive homicide,” which was intended to, among other things, assist women who killed an abusive partner in self-defense. However, this defense was abolished in November 2014 on the basis that it was not operating as intended. The penalties for violations of the Act vary, and the principles in the Sentencing Act 1991 apply to sentencing in all courts except the Children’s Court.

The Act’s purpose is to provide means to hinder persons from committing acts of family and domestic or personal violence by imposing restraints on their behavior and activities. Under the section 106B of the Act, restraint orders can be issued against a person who has caused or has threatened to cause injury or damage to another person or property and is likely to do so again or carry out the threat, behaved in a provocative or offensive manner and is likely to do so again, or against a person who has stalked another person. The justice must be satisfied on the balance of probability that the imposed restraints are necessary or desirable to prevent further prohibited behavior. Restraint orders can be issued on an interim or final basis. A person who fails to comply with an order is guilty of an offence and liable to a fine not exceeding ten penalty units or imprisonment not exceeding six months.

The Criminal Code Act 1924 prohibits forced and unauthorized abortions and assaults on pregnant women, sexual violence, stalking, domestic violence, and female genital mutilation. The termination of a pregnancy by a person other than a medical practitioner or the pregnant woman herself is a crime at any stage of the pregnancy. Termination carried out without the pregnant woman’s consent is a crime if it is performed intentionally or recklessly, regardless if any other harm is inflicted on the woman. Any person who unlawfully assaults a woman, knowing that woman is pregnant, is guilty of assault on pregnant woman under section 184A of the Act. Any person who has sexual intercourse with another person without that person's consent is guilty of rape under section 185 of the Act. “Sexual intercourse” is defined as the penetration of a person’s vagina, genitalia, anus or mouth by a penis, the penetration of a person’s vagina, genitalia or anus by another body part or object, or the continuation of either act of penetration. “Consent” means free agreement, and does not include, among other things, if a person does not say or do anything to communicate consent. Additionally, it is a crime to have sexual intercourse with a person under the age of 17 according to section 124 of the Act. A person is guilty of stalking if they, among other things, follow, surveille, threaten, direct abusive acts towards, communicate, send or publish offensive material, or contact another person or a third person, with intent to cause the another person physical or mental harm, including self-harm or extreme humiliation or to be apprehensive or fearful under section 192 of the Act. Under section 170A of the Act, a person commits persistent family violence in relation to another person with whom the person is, or has been, in a family relationship is guilty of persistent family violence when the accused has committed unlawful family violence on at least three occasions. Family violence includes, among other things, acts of physical, psychological and economic abuse, with the specific definitions set out in the Family Violence Act 2004. Under section 178A, any person who performs female genital mutilation on another person is guilty of a crime, regardless of custodial consent. Removing or making arrangements to remove a child from Tasmania with the intention of having female genital mutilation performed on the child is also a crime.

Section 11 sets the marriage age at 18. Section 12 allows authorization of marriage of persons under 18 but above 16 years of age in exceptional circumstances, after obtaining authorization from a Judge or Magistrate. Furthermore, section 13 provides that a marriage of a minor is not to be solemnized without consent of parents and other administrative steps.

Section 4AB defines family violence, covering within its scope violent, threatening or other behavior by a person that coerces or controls a member of the family or causes that member to be fearful. Further, 4AB(2) sets out a list of behaviors that may constitute family violence, including assault, stalking, repeated derogatory taunts, intentionally damaging or destroying property, and unreasonably withholding financial support. The Act provides for divorce and nullity of marriage if the marriage has broken down irreparably. Furthermore, section 65AA deals with parental orders. The court must, pursuant to section 60CG, facilitate the child’s best interest but also to the extent possible ensure that any parental order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence.

In the Northern Territory a person is guilty of a crime if he/she has sexual intercourse with another person without the other person’s consent and knows about, or is reckless as to, the lack of consent. Consent is defined as “free and voluntary agreement.” Circumstances in which a person does not consent to sexual intercourse include circumstances where: force is used; the victim fears force or harm to themselves or someone else; the victim is unconscious or not capable of free agreement; or the victim is unable to understand the sexual nature of the act. In addition, consent is no longer assumed where the victim is married to the accused. The prosecution must prove beyond reasonable doubt that the accused knew that the victim was not consenting or was reckless as to whether the victim was consenting. Recklessness includes not giving any thought to whether the person is consenting to sexual penetration. A defendant is not guilty of the offence if he or she mistakenly believed that consent had been given.

The Anti-Discrimination Act prohibits discrimination in certain settings on the grounds of any designated attribute, including sex, sexuality, marital status, pregnancy, parenthood, and breastfeeding. Unlike in other Australian jurisdictions, “gender identity” and “sex characteristics” are not included as designated attributes in the Northern Territory. The settings in which discrimination based on a designated attribute is prohibited include: education, work, accommodation, provision of goods, services and facilities, clubs, and superannuation. Discrimination includes any distinction, restriction, or preference made based on a designated attribute that has the effect of nullifying or impairing equality of opportunity, and harassment based on a designated attribute. Certain exceptions from the prohibition of discrimination exist, including: certain religious circumstances; provision of rights or privileges connected to childbirth; and discrimination aimed at reducing disadvantage. Alleged victims of prohibited discrimination can lodge a complaint against the discriminating person or entity, which will trigger a conciliation. If the matter is not resolved through conciliation, the Northern Territory Anti-Discrimination Commissioner may assess the complaint. If the Commissioner finds that the complaint is substantiated, the Northern Territory Civil and Administrative Tribunal can order that the discriminator pay compensation to the victim, discontinue the discriminating behavior, or do any other act specified by the Tribunal.

The accused pled guilty to one count of conducting a business involving sexual servitude, in contravention of section 270.6(2) of the Criminal Code Act 1995. Between August 2005 and March 2008, the accused recruited and facilitated the placement of 11 Thai women in brothels in various Australian cities. Each of the women (except for those who worked for one particular brothel) transferred a portion of their net earnings to the accused to repay the debts they were told they owed. She was sentenced to two years and three months imprisonment.

The case concerns the defendants, a married couple, who kept five Thai women as slaves in a secret room in the basement of their licensed brothel in Sydney. The defendants purchased the Thai women through contacts in Thailand (for between AUD 12,500 – 15,000). Upon arriving in Australia, four of the women were informed that they owed between AUD 35,000 and 45,000 that they had to repay by working in the brothel (one of the victims was told about the debt in Thailand). The defendants confiscated the women’s passports and kept them in locked confinement either at the brothel or at their residence. The women worked extremely long hours, seven days a week. The defendants were each found guilty of five counts of intentionally possessing a slave and five counts of intentionally exercising ownership authority over a slave, in violation of section 270.3(1)(a) of the Criminal Code Act 1995. The court sentenced Mr. McIvor to 12 years’ imprisonment and Ms. Tanuchit to 11 years’ imprisonment.

The proceedings concerned the plaintiff’s entitlement to an interest in seven properties purchased by the defendant in his name during and after their nine-year relationship. The plaintiff brought a claim under Part 9 of the Property Law Act 1958 (Vic), requesting that the Court adjust the interests in the properties on the basis of her financial and non-financial contributions to the relationship. While the parties were not married, the court was satisfied that on the balance of probabilities, they were in a genuine domestic relationship, considering factors such as their co-habitation, financial independence and the fact they had a child. In determining the contributions of each party to the relationship, the Court noted that “full value” must be given to the role of either party as homemaker. The plaintiff was not required to demonstrate a link between her contributions as homemaker or parent and the value of the properties in question. The Court acknowledged that the defendant had assumed the full burden of the mortgage commitments of the properties, but also acknowledged that the plaintiff had principal responsibility for the care of her three children. The Court was satisfied that the parties’ contributions were equal, and adjusted the interests in the properties on this basis.

The students enrolled at Castlemaine Steiner School Ltd (“Castlemaine”) for kindergarten and prep were originally approximately 75% boys and 25% girls. Castlemaine wished to offer more places to female students in order to maintain gender balance in their classes. Such conduct would constitute discrimination on the basis of gender in the provision of education and services under the Equal Opportunity Act 2010 (Vic) (“EO Act”), unless an exemption applies. Castlemaine sought an exemption under section 89 of the EO Act, contending that an exemption would enable it to promote social cohesion and gender balance, and would provide boys and girls opportunities to be with a meaningful number of children of their own gender. In assessing the application, the Victorian Civil and Administrative Tribunal (“VCAT”) noted that they were required to interpret the law, so far as it is possible to do so, compatibly with section 32(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic). In addition, VCAT was required to consider whether the interests served by the exemption are sufficient to justify taking the relevant conduct out of the prohibitions of the EO Act. Ultimately, VCAT granted the exemption for the maximum period of five years, on the basis that the proposed exemption offered a reasonable chance of to achieving gender balance.

The plaintiff (under the pseudonym ‘Jane Doe’) brought proceedings to enforce the judgement of a United States district court against her former employers, Mr. and Mrs. Howard. The claims against them included involuntary servitude, forced labour, and human trafficking. Mr. Howard did not contest the claim and had since died. Mrs. Howard disputed the claim but failed to comply with court orders, then moved to Victoria and participated no further in the proceedings. The U.S. district court had found that the plaintiff was raped, sexually abused, and forced to work 80 hours or more per week, and entered a default judgment against Mr. and Mrs. Howard in the amount of US $3,306,468. The Supreme Court of Victoria held that all criteria for enforcing the U.S. judgment were satisfied. The fact that the U.S. judgment was a default judgment that could theoretically be set aside did not prevent it from being “final and conclusive.” While Mrs. Howard argued that the default judgment was procured by fraud and should not be enforced in Victoria, the Supreme Court found that Mrs. Howard had “no reasonable prospect of establishing” her defences, and entered summary judgment against Mrs. Howard for the equivalent of US $3,306,468, plus interest.

The respondent had previously been sentenced to 16 months’ imprisonment after pleading guilty to six charges relating to sexually assaulting, stalking, and threatening to kill his ex-wife, as well as attempting to pervert the course of justice (saying that he would kill himself if the victim did not drop the charges against him), and violating a family-violence intervention order. The Director of Public Prosecutions appealed this sentence, arguing that it was “manifestly inadequate.” Upon consideration of the gravity of the offending conduct, its effect on the victim, and aggravating features such as the existence of the intervention order, the Court of Appeal reversed the sentence. The court found that the previous decision gave too much weight to mitigating factors, some of which should not have been taken into account at all, such as the judge’s finding that the respondent regarded “now at least the relationship as [being] over.” He was re-sentenced to two years and 11 months imprisonment with a non-parole period of two years.

The applicant and his wife had been married for 24 years, but had been separated for approximately eight years at the time of the offense. The applicant was convicted of several charges, including aggravated burglary, breach of a family intervention order, making a threat to kill, and common assault. The applicant had entered the victim’s home, breaching a family-violence intervention order, and threatened to kill the victim verbally and by holding a knife to her throat. The applicant also threatened to shoot his estranged wife with a genuine-looking imitation firearm. Following a trial, the applicant was found guilty and sentenced to 10 years’ imprisonment. On appeal, the applicant argued that the trial judge erred in admitting tendency evidence, that the sentence was manifestly excessive, and that the trial judge failed to take into account the “crushing effect” of the sentence. The Supreme Court affirmed the conviction and sentence, reasoning that “general deterrence is important in cases such as this of violence against domestic partners, so as to deter other like-minded individuals from similar offending.” The Court further reasoned that “sentences imposed for family violence should be set at a level which will send a message to those — predominantly men — who might offend violently against domestic partners or former partners or family members.” The Court also forwarded a copy of its decision to the Royal Commission on Family Violence, which was underway in Victoria at that time.

The appellant challenged section 9(2) of the Tasmanian Reproductive Health (Access to Terminations) Act 2013 which prohibits protests that can be seen or heard within 150 meters of an abortion clinic. The appellant was convicted under the Act after standing on a street corner within the protest zone, holding placards with depictions of fetuses and statements about the “right to life.” He sought review of the conviction on the grounds that the law impermissibly burdens the freedom of communications on governmental and political matters, a right implied in the Australian Constitution. The High Court dismissed the appeal unanimously holding that the statute aims to protect the safety, wellbeing, privacy, and dignity of women, and in doing so, adequately balances the right to political communication and protection of those in need of medical assistance. Because the statute is limited in geographical reach and does not discriminate between sources of protest within the protected zone, the burden upon political communication within the Act is minor and proportionate.

The decision of the tribunal was only in relation to whether to approve the respondent’s application to dismiss the complaint. The respondent’s application was denied because there were real factual issues in dispute. It appears that the substantive trial has not yet commenced (or alternatively a settlement was reached). In any case, this case is relevant as it illustrates the discrimination women may face in Australia when seeking to establish themselves in a secure environment and raise their children. The complainant was a single mother who sought to rent an apartment from the respondent. The complaint rested upon the allegation that the complainant’s tenancy application had been rejected (and she was not even allowed to see the property) as a result of the complainant intending on having her young son live with her in the rental property.

The complainant was a woman in an exclusive lesbian relationship for four years. The complainant and her partner wanted to have child but learned that donor insemination in Queensland would not be available for them, so the complainant traveled out of state to seek this treatment. She found the experience to be emotionally and financially draining, so she stopped the treatment. Thus, the complainant decided to try and ask the clinics in Queensland for the donor treatment. She found a clinic at which the respondent was a director. She obtained a referral from her general practitioner and scheduled an appointment with the respondent. At the appointment, the complainant informed the respondent that she was in a long-term lesbian relationship. The respondent’s position was clear that the clinic only provided treatment to heterosexual couples with infertility problems. Nevertheless, he requested blood tests of the complainant which showed that her ovaries were functioning normally and proceeded to give her a form to fill out and sign for herself and her “husband” in order to start the treatment. The complainant asked the respondent if she could fill only the wife part and sign, but he insisted that it should be signed by the husband. Since this was not possible in her case, the respondent refused to provide her with the treatment. The claimant then sought treatment outside Brisbane for a while without success. The claimant had a baby by private donation, ultimately bearing risks of possible HIV infection of the semen. The claimant suffered emotional distress from humiliation and discrimination based on her sexual orientation, in addition she had to defer her university degree for all the time she had to spend traveling to clinics outside Queensland. Subsequently, the claimant filed this claim before the Anti-Discrimination Tribunal seeking compensation from the respondent and his clinic. The respondent argued that there was an agreement with the government on artificial insemination by donation in relation to treatment of infertility, and that treatment is to be provided only to heterosexual couples. The Tribunal confirmed that there was no such agreement in place. The respondent also argued the definition of infertility only describes the incapability of heterosexual couples of conceiving because of medical reasons caused by one or both of them. The Tribunal also refused this limitation of the definition and held that the fact that scientifically two females are incapable of conceiving a child is a medical reason that makes them eligible for the same treatment as any heterosexual couple seeking this treatment. Accordingly, the Tribunal found the act of the respondent to be discriminatory against the complainant because she is a lesbian, which is unlawful under the Anti-Discrimination Act 1991, and ordered the clinic to pay the claimant a compensation sum for the humiliation and offence she suffered.

The complainant worked as a Reservations Manager at the Raging Thunder Pty where both respondents, Cole and Ariel, were directors. The complainant became pregnant and went on maternity leave in agreement with the directors that she would return to the company at the same position after her maternity leave. Closer to the date when the complainant was about to return back from her maternity leave, she contacted Mr. Cole and discussed the possibility of returning on a part-time basis, but Mr. Cole informed her it was not possible for a managerial position to be part-time. The complainant tried to contact Mr. Cole again to inform him that she was willing to work full-time, but could not reach him, so she sent him the message through the receptionist. After several calls with Mr. Cole and without a definitive answer on her return date to work, Mr. Ariel called the complainant to inform her of a company restructuring and that her position was no longer available and that the two newly introduced positions were already filled by her colleagues. The complainant asked if they were going to offer any similar positions, but Mr. Ariel told her they had no more positions and he would not create one for her. The complainant suffered emotional distress and financial loss due to becoming redundant, therefore filed for this complaint seeking compensation. The complainant alleged that, due to her pregnancy and maternity leave, the respondents (i) failed to discuss the terms of her returning to work; (ii) failed to discuss her offer to work part-time;(iii) failed to appoint her in the new position of Call Center Manager and appointed Ms. S. instead; (iv) failed to appoint her in the new created position of 2IC and appointed Ms. G.; and, (v) failed to offer her an alternative position. The Anti-Discrimination Tribunal did not find the respondents liable for all of the complainant’s allegations, but ruled that the company and Mr. Ariel failed to offer the complainant the 2IC position after restructuring even though she was more experienced and familiar with this role than Ms. G., who was only covering for the complainant during her maternity leave. Thus, the Tribunal found that the reason for not offering this position to the complainant was due to her maternity leave. The company and Mr. Ariel also failed to offer the complainant any alternative position, again due to her maternity leave, and therefore her return was not considered while planning the restructuring of the company. The Tribunal found that respondents did not discriminate against complainant in conversations about her returning to work, in not discussing her offer to work part-time, in choosing to restructure, or in failing to appoint her in the Call Center Manager position under the Anti-Discriminatory Act 1991. However, the Tribunal did find that if complainant had not been on maternity leave at the time of the restructuring, she would have been offered the 2IC position, and that decision constituted pregnancy discrimination on the part of the first and third respondents. Also, the Tribunal found the failure to offer complainant a suitable alternative position constituted pregnancy discrimination. Therefore, the Tribunal ruled a compensation sum to be paid the complainant.

The appellant and the victim were married for 37 years. On 6 May 2010, the victim was struck at least 15 times on the head, face, and forearm with severe force, causing her death. When police arrived, they found the victim’s body doused in petrol in the garage near her car.. Police found the appellant lying on the floor in the lounge room in the house with a head injury and had a letter opener sticking out of his right hand. The appellant was taken to hospital and later interviewed by the doctors and police. The appellant told police that he got out of bed, walked into the lounge room, and was hit on the head by a man wearing a stocking over his head. Throughout this interview and later investigations by the police, the appellant maintained that there was an intruder who entered the house, assaulted him, and then killed his wife. At trial, the Crown’s case against the appellant included several pieces of circumstantial evidence: the victim was covered by appellant’s clothing, someone attempted to clean up the blood with towels, the victim was doused in petrol but not ignited, indicating that someone tried to destroy DNA, the footprints around the victim’s body matched footwear commonly worn by appellant, the appellant’s DNA was on a bloody metal bar found near the victim’s body, the metal bar appeared to come from the household, blood in and around the house matched victim’s and appellants, appellant had dried, flaky blood on him, the appellant gave inconsistent accounts of the events, appellant lied to officials, and appellant had the motive to kill her because he had financial difficulties and was the beneficiary of her life insurance. In light of the evidence, the appellant was convicted of murdering the victim.The appellant filed an appeal on the grounds that the trial judge erred in (i) directing the jury that they could use appellant’s lie in relation to the murder weapon belonging to him as implied admission of his guilt; (ii) directing the jury that they could use appellant’s lie about owning footwear similar to that which left footprints around the victim’s body as implied admission of his guilt; (iii) admitting the lack of reaction from the appellant when learning of his wife’s death as evidence of his guilt; (iv) failing to direct the jury in relation to evidence that the appellant did not ask how his wife died; (v) misdirecting the jury in relation to motive; and, (vi) failing to direct the jury in relation to evidence of DNA analysis. The Supreme Court dismissed the appeal, finding that the trial judge did not err in jury instructions or admissions.

The respondent was employed as an apprentice by the first appellant, the second appellant was her supervisor, and the third, fourth, and fifth appellants were her co-apprentices. Over the course of the respondent’s employment with the first appellant, she was subject to unlawful discrimination and sexual harassment by the third, fourth, and fifth appellants (among others). The complaint by the respondent included her receiving sexual comments and unequal treatment by her superiors and co-workers because she was a female, and many of her peers told her that she was not fit for her job because she was a female. Examples of these acts were a display of pictures and posters of half-dressed women in various parts of the workplace, addressing the respondent in the presence of others at a training with inappropriate comments, not giving the respondent the same work opportunities as her male peers, and providing her with unfavourable report cards that included clear comments against her as a female. The Anti-Discrimination Tribunal in the first instance found that the first appellant was negligent in providing the proper training to its employees on anti-discrimination and sexual harassment at the work place, subsequently allowing the other appellants to act in a discriminatory way towards the respondent because of her gender. Since these are considered unlawful acts under the Anti-Discrimination Act 1991, the Tribunal ordered the appellants to pay the respondent compensation for damages caused by discrimination and sexual harassment. The appellants’ filed this appeal objecting to the Tribunal’s findings. The Supreme Court dismissed the appeal and affirmed the orders of the Tribunal.

The applicant sought a review of a decision to refuse her a protection visa under s65 of the Migration Act 1958. The application was refused because the applicant was allegedly not a person to whom Australia had protection obligations arising out of the Refugees Convention. The tribunal investigated the history of the victim and her claims of substantial risk of being forced to undergo FGM if she returned to Uganda. The evidence presented included the fact that the process is not illegal in Uganda, that her father is relatively high-ranking in a tribe that finds FGM extremely important, and that she has in the past been abducted in order to be forced to undergo the process. She changed schools and stayed with relatives, but those means of escape have not worked as eventually her father and his tribe were always able to find her. As such, the tribunal concluded that there was a risk of serious harm if the applicant were forced to return to Uganda. It also concluded that she does satisfy the s36(2)(a) of the Migration Act and was therefore a person to whom Australia has protection obligations.

The policy and practice of the New South Wales Department of Education and Training restricted pay scales of temporary teachers to level 8, which excluded temporary staff from the highest level of pay. The applicants, 13 female temporary teachers, sued, arguing that only permanent staff had access to the highest pay rates and that there was a gender imbalance between permanent and temporary teachers. Of the 13 female teachers, 11 took temporary rather than permanent positions due to family responsibilities and two applied for permanent positions, but those two, due to family reasons, limited the areas in which they could work. The court considered that making over-award payments to only women would be discriminatory against men, whereas the second option of making over-award payments to those who had family commitments would be difficult to formulate and to apply in practice. As such, the court held that there was no indirect discrimination.

This domestic violence case involved an appeal against a sentencing decision. The defendant was found guilty and sentenced to five years and seven months imprisonment for the manslaughter of his spouse after a history of domestic violence against his wife and other family members. The trial court considered the defendant's circumstances of disadvantage – that he was an Aboriginal man and grew up in an environment that normalized violence and alcohol abuse – as mitigating factors. In the first appeal, the prosecution successfully argued that the sentence was manifestly inadequate, and the Court of Appeal increased the sentence to seven years and nine months. The defendant then appealed to the High Court of Australia, arguing that there were insufficient grounds for the Court of Appeal to interfere with the original sentence and ignore the mitigating factors considered in the original judgment, in particular his social disadvantage. The High Court dismissed the appeal, finding that the first appellate court gave proper weight to the defendant’s social disadvantages and acted properly within its discretion in the resentencing.

The case concerned a challenge to the employer’s retrenchment policy. The applicant alleged that the criterion was discriminatory as substantially higher proportion of men could comply than women. Although the retrenchment applied to both sexes, there were fewer women in positions of seniority who were immune from the retrenchment because the employer had a history of discriminating in its hiring decisions. As such, the court found indirect discrimination because the retrenchment policy unlawfully maintained discriminatory circumstances.

In 2009, a female employee made a formal complaint regarding improper conduct in the workplace, including continuous inappropriate and derogatory comments, by a Northern Territory Police Force member to whom she was a personal assistant, Bert Hofer. The complaint resulted in an investigation and Hofer’s demotion and transfer. On April 13, 2010, the female employee further made a complaint to the Northern Territory Anti-Discrimination Commission of discrimination and sexual harassment in violation of the Anti-Discrimination Act (Northern Territory). Pursuant to Section 66 of the Anti-Discrimination Act, the Commissioner must accept or reject a complaint not later than 60 days after receipt of the complaint. The complaint was accepted on November 1, 2010, well beyond the 60-day timeframe. Hofer argued that the decision to accept the complaint should be set aside due to the Commissioner’s failure to accept the complaint within the statutory timeframe. Further, Hofer argued that the Commissioner failed to consider whether the complaint was frivolous or vexatious. The Supreme Court of the Northern Territory held that the Commissioner did consider whether the complaint was vexatious, and determined that it was not. The fact that the Commissioner failed to accept the complaint within of the 60-day timeframe did not invalidate the decision as such a finding would result in unacceptable injustice inflicted on victims due to government inaction. Accordingly, Hofer’s application was dismissed and the Commissioner’s decision to accept the complaint was upheld.

Mr. and Mrs. Pavey were married in 1945 and lived in the same matrimonial house for more than thirty years. Mr. Pavey had provided Mrs. Pavey with housekeeping money for the matrimonial home, but ceased this practice after an incident in April 1974. As a result, Mrs. Pavey successfully applied to the Magistrates’ Court for a maintenance order against her husband. The marriage continued to deteriorate, and Mrs. Pavey applied to the Family Court of Australia for dissolution of the marriage in 1976, which the Court denied. Mrs. Pavey then appealed to the Full Court of the Family Court of Australia, which allowed the appeal. The Court found that the lower court had erred in finding that the marital relationship had not broken down such that dissolution was appropriate. Extending the reasoning in In the Marriage of Todd (No. 2), the Court held that there are several signs indicating a close marital relationship, such as “living under the same roof, sexual relations, mutual protection, nurturing and supporting a child of the marriage, and recognition both in public, and private of the relationship.” However, the Court also found that all the constituent elements need not be shown in establishing the existence of a matrimonial relationship due to the natural ebbs and flows of a marriage, and not every relationship is the same. Therefore, when determining whether separation has in fact occurred, it is more useful to compare and contrast the nature of the relationship before and after the separation. Thus, the Court found that the fact that Mr. Pavey had been ordered to make maintenance payments demonstrated that marriage had broken down, even though both spouses continued to live in the matrimonial home and perform certain chores for each other.

The respondent, an allegedly homosexual citizen of Pakistan, arrived in Australia on a visitor visa in 2007 and applied for a protection visa. To be recognized as a refugee, the respondent had to show that he had a well-founded fear of being persecuted due to his race, religion, nationality, membership of a particular social group, or political opinion. The respondent argued that, as a homosexual man, he belonged to a particular social group that was persecuted and subject to harm in Pakistan. The respondent’s protection visa application was initially denied, and the Refugee Review Tribunal (Tribunal) affirmed this decision. The Tribunal found that while homosexuals in Pakistan constitute a protected group, the respondent was not actually a homosexual because he safely make a three-week visit to Pakistan before traveling to Australia and failed to seek asylum on a recent visit to the UK. On appeal, the Federal Court found that the Tribunal’s decision was based on illogical reasoning. The Minister for Immigration and Citizenship appealed the Federal Court’s decision to the High Court. In a majority decision, the High Court overturned the Federal Court’s decision, finding that the Tribunal’s reasons for not believing the respondent was actually a homosexual were sound.

This case challenged a decision by the Secretary of the Department of Justice to refuse Ms. Castles’ access to in vitro fertilization (“IVF”) treatment, while she was in a low security prison. Prior to her imprisonment for social security fraud, Ms. Castles was undergoing IVF treatment. Although she was sentenced to only 18 months of imprisonment, Ms. Castles was nearing the age at which IVF would no longer be available to her. Ms. Castles sought a declaratory judgment and injunctive relief to enable her to continue IVF treatment to conceive a second child with her husband. The question decided by the Supreme Court was whether access to IVF is inherent in the right to respect privacy and family life. The Supreme Court acknowledged that although incarceration necessarily involves a limitation of the right to liberty, it places an additional burden on the State to preserve human dignity. International agreements, including CEDAW and ICESCR, recognize that decisions concerning the number and spacing of children, and access to health services, including in the area of sexual and reproductive health, are an aspect of the inherent dignity of a person that underlies all human rights. The Supreme Court held that the requirement to give proper consideration to human rights required the decision-maker to consider the possible impact of the decision on a person’s human rights, but that this need not be a sophisticated legal exercise. The Supreme Court further ordered the Department of Justice to allow Ms. Castles access to the relevant medical treatment, subject to an assessment of any countervailing security or other concerns on a visit-by-visit basis.

Dr. John McBain, a Melbourne doctor specialising in reproductive technology, was consulted by Ms. Lisa Meldrum, a single woman wishing to conceive through in-vitro fertilisation (IVF) using donor sperm. Dr. McBain told Ms. Meldrum he was prohibited by Victorian legislation (namely, the Infertility Treatment Act) from administering IVF treatment to her because she was single. He then commenced proceedings seeking a declaration that provisions of the Victorian legislation were inconsistent with the Sex Discrimination Act (in particular, section 22, which deals with discrimination in relation to the provision of goods and services), and hence inoperative to the extent of the inconsistency. Justice Sundberg held that fertility treatments, including IVF, constituted “services” provided by medical practitioners within the meaning of section 22 of the Sex Discrimination Act. Because the Infertility Treatment Act makes provision of IVF treatment contingent on a woman’s marital status (as well as her medical state), Justice Sundberg concluded that the Victorian legislation violated section 22 of the Sex Discrimination Act and was unlawful under section 109 of the Australian Constitution. This case holds that women do not have to be married or in a de facto relationship to be eligible for infertility treatment.

Dr. Charles Kenneth Davidson was a medical doctor charged with four counts of unlawfully using an instrument and one count of conspiring to use an instrument or other means with intent to procure the miscarriage of a woman. The Court found that an abortion would be lawful if the accused held an honest and reasonable belief that the abortion was both “necessary” and “proportionate.” In this context, “necessary” means that the abortion was necessary to prevent serious harm to the woman’s life and/or physical or mental health, beyond the normal dangers of pregnancy and childbirth. “Proportionate” means the abortion was not out proportion with the danger to be averted. The jury applied Menhennitt J’s interpretation of the law and acquitted Dr. Davidson of the charges.

* This is a landmark decision, which has not been re-examined, despite several cases in which it could have been. Therefore, this decision continues to represent the legal position in Victoria, Australia.

This case concerned parenting orders for the three children of the applicant mother and respondent father. The mother alleged that during her relationship with the father, he domestically abused her by shouting at her, denigrating her, physically assaulting her, and suppressing her financial autonomy. There was also evidence that the father was charged with a number of offences of assaulting his new partner (Ms. H). The Family Consultant described the father’s treatment of Ms. H and the applicant as “pathological” and “coercive controlling violence.” The court was satisfied that the children would be exposed to domestic violence within the father’s household and found that the presumption of equal shared parental responsibility did not apply. The court also found that the children’s need for protection from harm superseded their need for interaction with their father, their apparent wishes to stay with their father, and the presumption that the child’s best interests are served by an order allocating equal shared parental responsibility to both parents. The court ordered that the children live with the mother and limited the father’s contact with the children to four professionally supervised visits per year and occasional written communications. Outside of these parameters, the father was forbidden to contact his children.

The Plaintiffs, Ms. Stanley (case available here) and Ms. Poppy, each claimed that their employer discriminated against them due to their pregnancies. Both were made redundant from the same organization while on parental leave, about two years apart. Both of the Plaintiffs’ positions were eliminated by their employer due to a reorganization of the employer’s management structure. In both cases, the Plaintiffs’ absence from work caused their employer to conclude that their positions were no longer required. In particular, when Stanley and Poppy went on parental leave, their job duties were redistributed to colleagues. This caused their employer to decide that Stanley and Poppy’s positions were redundant. In both cases, the Federal Court found that the employer would not have restructured its management in this way if the Plaintiffs had not taken maternity leave. Because the restructuring involved only those employees working at the time it occurred, the fact that the Plaintiffs were on maternity leave (and thus not present) disadvantaged them. However, the Federal Court found that Plaintiffs’ dismissals did not constitute discrimination because neither Plaintiff could show that the employer treated them any differently than it would an employee who was not pregnant or on leave in similar circumstances.

The respondent was a victim of domestic violence at the hands of her husband for a number of years in her native country, Fiji. After unsuccessfully attempting to obtain assistance from local police, she fled to Australia and applied for a protection visa. To be recognized as a refugee the respondent had to show that Fiji’s failure or unwillingness to protect her was motivated by a reason listed in the Convention Relating to the Status of Refugees 1951 (Convention), in this instance, her membership in a particular social group. Respondent argued she belonged to the following social groups: women in Fiji, women in Fiji who have left their husbands, and women who refuse to conform to the social norms of Fijian Indo society. She argued that her membership in these groups meant that Fijian police would not protect her from her husband’s assaults if she returned to Fiji. The Refugee Review Tribunal (Tribunal) found: (i) there was no evidence that the Fijian authorities withheld state protection from the respondent based on her membership in these particular social groups; (ii) Fiji has laws against domestic violence; and (iii) Fiji had a police force and judiciary to give effect to its domestic violence laws. On appeal, the Federal Magistrate’s Court overturned the Tribunal’s decision, finding that the Tribunal erred by failing to explicitly evaluate whether Fiji’s laws were sufficient to protect a person in the respondent’s position. The Full Federal Court overturned the Federal Magistrate’s Court’s decision and upheld the reasoning of the Tribunal, holding that the test for refugee protection is not satisfied where (i) the persecution is by a non-state agent (here, the respondent’s husband) for a reason that has no connection to the Convention, and (ii) the state fails to prevent the persecution due solely to its inability to implement relevant laws due to lack of resources.

Sok, a Cambodian citizen, married an Australian woman who acted as his visa sponsor. A permanent visa is conditioned on the determination that the visa applicant is the spouse of the sponsor and that the parties have a genuine relationship. A delegate of the Minister for Immigration and Citizenship declined to grant Sok a permanent visa because the delegate “was not satisfied that the appellant [Sok] was the spouse of the sponsor.” Sok applied for a review of the refusal, later alleging that he was the victim of domestic violence by his sponsor. The case raised two questions: (1) whether the review Tribunal must consider Sok’s claim of domestic violence even though the claim was not raised until the refusal of his application and (2) whether the Tribunal can “decide that it is not satisfied that the alleged victim . . . suffered relevant domestic violence” without a hearing. The High Court sided with the appellant, holding that the Tribunal must consider the claim. The Court further held that the Tribunal cannot make a determination regarding the claim of domestic violence without allowing the appellant an opportunity to be heard.

The Respondent in this case faced a prison term of two years and six months based on his convictions for 9 counts of serious domestic violence offenses. The Respondent was also ordered to refrain from any harassment or threatening conduct toward the victims (or those in domestic relationships with the victims) for ten years. In response to the sentencing of the Respondent, “the Crown submitted that the sentences imposed upon the Respondent were manifestly inadequate.” The Crown noted that “a number of individual sentences were themselves inadequate given the objective seriousness of the crimes involved.” The Court emphasized the importance of both specific and general deterrence for domestic violence offenses and noted “[r]ecognition of the harm done to the victim and the community as a result of crimes of domestic violence is important.” The Court ultimately held that “the sentences imposed upon the Respondent were manifestly inadequate” and resentenced the Respondent.

This case concerns the sentencing of a sexual offender. The offender was convicted of eight counts of sexual intercourse and indecent assault against a sixteen year old girl. The defendant appealed his sentence, arguing that the judge erred in his determination that the victim “suffered significant psychological damage as a result of the offense.” On appeal, the Court found that the lower court erred in making the finding of “substantial” harm. The Court further held that the victim’s “psychological damage was multifactorial and that in the absence of medical evidence which separated out the effects of these offences,” the lower court’s determination of substantial psychological harm resulting from the offenses was inappropriate.

Appellant in this case was convicted of various sexual offenses against his minor daughter, the complainant, including charges of possessing child pornography. During the course of the trial, a recording of a conversation between the appellant and complainant had been entered into evidence. The recording detailed a sexually inappropriate conversation between the parties. At the trial level, this piece of evidence was deemed “reasonably necessary for the complainant’s lawful interest in protecting herself” from abuse by the father and was therefore allowed in as evidence. Appellant asserted that the recording was entered in error. The Court held that even if the recording was in fact entered in error, there was “no substantial miscarriage of justice and the appellant has not lost a real chance of acquittal.” Therefore, the appeal was dismissed.

The plaintiffs challenged sections of the Tasmanian Criminal Code criminalizing homosexual conduct. The plaintiffs alleged that the challenged sections violated provisions of the Human Rights (Sexual Conduct) Act of 1994. The case revolved around whether the plaintiffs brought the action prematurely (i.e., whether the plaintiffs had “sufficient interest” to bring the action before the Court). The Court held that the case was “not to be denied at the threshold” and that the plaintiff’s claim was neither “abstract nor hypothetical.” The fact “that the plaintiffs “faced possible criminal prosecution”’ sufficed as a “sufficient interest” in the case.

Marea Hickie, a solicitor, claimed unlawful discrimination by her employer, the partnership of Hunt & Hunt, during and after her maternity leave. Shortly after returning from maternity leave, the firm decided not to renew Hickie's contract. At issue was a requirement that Hickie work full-time to maintain her position at the firm. Hickie claimed that the firm’s non-renewal constituted unlawful discrimination on the basis of sex, marital status, pregnancy, potential pregnancy and family responsibility. Upon review of the case, the Commission noted that such a requirement was “likely to disadvantage women” and therefore the firm’s non-renewal resulted from “an act of [indirect] discrimination.” The respondent firm was ordered to pay Hickie $95,000 in compensation.

This appeal was based on the contention that there had been a wrong decision on a question of law concerning the admissibility of evidence in a sexual assault case. The appellant, Phillips, was convicted on several counts of rape and unlawful carnal knowledge and on one count of assault with intent to commit rape. The counts involved multiple teenage victims. Similarities existed across the victim’s stories and evidence was admitted concerning each victim. The Criminal Code stated that "an indictment must charge 1 offence only and not 2 or more offences," also stating that “Charges for more than 1 indictable offence may be joined in the same indictment against the same person if those charges are founded on the same facts or are, or form part of, a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose." The appellant contended that the offenses did not reflect “offences of the same or similar character,” arguing that trial of the eight charges at once had been unduly prejudicial to his case. The High Court held that “prejudice to the fair trial of the appellant was substantial” and made a formal order for retrial.

This case concerns charges of assault and rape brought against a husband, the appellant, for the rape of his wife in 1963. In an appeal to the High Court, the appellant sought immunity for the rape of his wife, arguing that marital rape was not illegal at the time the events took place. The appellant argued that his wife gave irrevocable consent to sexual intercourse upon their marriage in 1962 pursuant to the era’s common law. The Court considered existing laws and writings from the time period in question, questioning whether the aforementioned immunity ever actually existed and ultimately deciding that “if it did, it had ceased to do so sometime before 1963.” On the basis of this analysis, the Court dismissed the appeal.

After undergoing a sex affirmation procedure, Norrie registered as “non-specific” with the NSW Registrar. After initially approving this registration, the NSW informed Norrie that the registration was invalid. The Administrative Decisions Tribunal of New South Wales agreed with this determination, and the Tribunal’s appeal panel dismissed Norrie’s appeal. At this point, Norrie appealed to the Court of Appeal of New South Wales, which remitted the matter to the Tribunal for determination of Norrie’s sex classification. The Registrar appealed to the High Court. The issue on appeal to the High Court was whether the NSW Registrar was in fact confined to registrations of “male” or “female,” which would preclude Norrie’s registration as “non-specific.” The High Court noted that the Transgender (Anti-Discrimination and Other Acts Amendment) Act of 1996, which amended the Births, Deaths, and Marriages Registration Act of 1995, recognized “ambiguities.” Furthermore, the Court pointed to its holding in AB v. Western Australia, where it stated that "the sex of a person is not ... in every case unequivocally male or female." On this basis, the High Court held that individuals do not have to affirmatively select “male” or “female” following a sex affirmation procedure, and may instead register as “non-specific” with the NSW Registrar.

Rebecca Richardson brought a sexual harassment suit against a former co-worker, Randol Tucker. Before Richardson left the company, Richardson and Tucker were colleagues at Oracle Corporation Australia. At trial, Ms. Richardson prevailed and was awarded $18,000 in damages for which Oracle Corporation Australia was vicariously liable. Ms. Richardson appealed, arguing that the award was inadequate. The High Court highlighted the difficulty in formulating awards of general damages in sex discrimination cases, but acknowledged that harassment can cause severe physical and mental strain. The Court noted that more significant awards were granted to the victims of workplace bullying than the victims of sexual harassment despite “comparable” damage caused by both types of conduct. Based on the distress Richardson experienced because of Tucker’s conduct, the Federal Court found that the $18,000 award was inadequate and substituted an award of $100,000 to compensate Ms. Richardson for psychological injury caused by the sexual harassment.

A citizen of Eritrea sought protection on the basis that she feared persecution in Eritrea, where she would either be (i) conscripted into, and subject to rape and abuse by, the army or (ii) prosecuted for failure to report for conscription. Although she presented evidence that rape, sexual abuse and impregnation by military officers was committed against draftees, including at the camp to which she would be assigned, as well as evidence showing incidents of parents killed whilst resisting the drafting of their daughters, a delegate of the Refugee Review Tribunal denied the application. The court found that the Tribunal misdirected itself by not asking whether rape, sexual abuse and impregnation by military officers was deliberate or pre-meditated conduct, exposure to which the applicant could not be expected to tolerate. The court set aside the Tribunal’s decision and the matter referred back to the Tribunal.

A married couple, both of Indian ethnic origin and citizens of Fiji, sought protection for fear of persecution on the grounds that the wife was abducted and raped because of her Indian ethic origins and because of her husband’s local political activity. The Refugee Review Tribunal did not accept that the wife was raped for reasons of her Indian ethnic origins, nor her husband’s support for the FLP. The court affirmed.

A citizen of Ghana sought protection for fear that she would be subject to arranged marriage and female genital mutilation. The Refugee Review Tribunal found the applicant to be not credible, in part because she could not identify the ethnic group that the proposed husband came from. The court found these factual conclusions satisfactory and affirmed.