Victoria

The Abortion Law Reform Act allows a registered medical practitioner to terminate a pregnancy (perform an abortion) on a woman who is not more than 24 weeks pregnant. After 24 weeks, an abortion may still be performed if the medical practitioner believes it is appropriate in all the circumstances, and has consulted at least one other registered medical practitioner who reasonably agrees. It also permits the supply or administration of drugs to perform and abortion by a pharmacist or registered nurse in similar situations.

The Charter aims to protect and promote the human rights set out in Part 2, including property rights and freedom from forced work (slavery), as well as the right to enjoy those human rights without discrimination. With respect to any proposed new law, the Victorian Parliament must prepare a “statement of compatibility,” which must examine the proposed law’s compatibility (or incompatibility) with the human rights protected in the Charter. While this statement has no effect on the validity of any law, it furthers the purpose of the Charter in promoting human rights. Further, under section 32 of the Charter, all statutory provisions must be interpreted in a way that is compatible with human rights (to the extent it is possible to do so consistently with their purpose). The Charter also allows the Victorian Equal Opportunity and Human Rights Commission to intervene in any court or tribunal proceeding in relation to the Charter.

The plaintiff alleged that, during the course of her employment at construction firm Winslow Constructors, she was abused, bullied, and sexually harassed by Winslow employees and subcontractors. She alleged that Winslow was vicariously liable for the acts of its employees and subcontractors, or in the alternative, negligent in failing to provide a safe working environment. On the fifth day of the trial, Winslow admitted liability for negligence. The decision before the Court was the quantum of damages available to the plaintiff. The Court found that she had sustained very considerable psychiatric injuries and a jaw injury (due to teeth grinding) as a direct consequence of the bullying, abuse, and sexual harassment leveled at her by Winslow’s employees and subcontractors. The Court found that these injuries “have and will continue to diminish the quality of her life.” The Court awarded general damages AUD 380,000. Based on “virtually unanimous” evidence that the plaintiff would never work again, the Court also awarded her AUD 283,941.70 for past economic loss AUD 696,085.41 for future economic loss, to reflect her loss of future earning capacity.

This decision concerned the appeal by Christian Youth Camps (“CYC”) against the decision of the Victorian Civil and Administrative Tribunal (“VCAT”) that CYC had unlawfully discriminated against Cobaw, an organisation concerned with youth suicide prevention. CYC, the operator of a camping facility at Phillip Island, had been established by the Christian Brethren Church and was opposed to homosexual activity on religious grounds. Cobaw had sought to rent CYC’s camping resort for the purposes of a weekend camp to be attended by homosexual young people. CYC had refused Cobaw’s request for accommodation. VCAT found that by refusing to accommodate Cobaw, CYC had unlawfully discriminated on the basis of sexual orientation in the provision of accommodation or services. CYC asserted that its refusal to accommodate the youths was necessary to comply with its religious beliefs or principles, and sought to invoke the religious exemption in sections 75(2) and 77 of the Equal Opportunity Act 1995 (Vic). VCAT found that CYC could not rely on the religious exemption as they were not a body established for religious purposes. While CYC had been established by the Christian Brethren Church, VCAT found that the CYC’s purposes and activities were not religious. The Court of Appeal dismissed CYC’s appeal and upheld VCAT’s decision. The Court of Appeal affirmed VCAT’s finding that the refusal to accommodate was made in the course of the conduct of a secular and commercial accommodation business. The Court of Appeal also upheld VCAT’s finding that CYC’s opposition to homosexual activity was a “rule of private morality,” which “carried with it no obligation to convince others to adopt the same rule.”

After pleading guilty to defensive homicide and being sentenced, the applicant appealed her sentence. The applicant’s violent and abusive partner, Mr. Mifsud, had compelled the applicant to kill the victim, Mr. Nankervis, by threatening to kill her family unless she killed Mr. Nankervis. The sentencing judge described the applicant’s offense as a “very grave example” of defensive homicide on the basis that Mr. Nankervis was innocent, Mr. Mifsud was absent at the time of the killing so the applicant could have gone to the police, and because the attack on Mr. Nankervis was extremely violent and disturbing. However, on appeal, the Court of Appeal found that the sentence (10 years imprisonment) imposed by the judge was manifestly excessive. The Court of Appeal had regard to the litany of cruel, humiliating, and violent acts that Mr. Mifsud had subjected the applicant to throughout their 12-month relationship, and Mr. Mifsud’s substantial criminal history. The Court of Appeal also considered the applicant’s youth (she was 19 at the time of the offense), her contrition in pleading guilty, and the effect of the violence on her state of mind, which made it “exceptionally difficult” for her to resist the requests of those in positions of influence. The Court of Appeal found that there was no basis for drawing an adverse inference from the disproportionate violence used to kill Mr. Nankervis. Instead, against the background of family violence, the violence was indicative of the applicant’s fear that Mr. Mifsud would kill her family.

The defendant had been found guilty of murdering his estranged wife in her home. This decision concerned his sentence. The court noted that “family violence” or “gender-based violence” are not separate crimes, but instead categorical descriptions of the relevant crime (here, murder), and that standard sentencing principles apply. The court condemned “family violence in the strongest possible terms” and stressed that general deterrence, denunciation, and just punishment were strong sentencing considerations. In accordance with the Sentencing Act 1991 (Vic), the court considered factors such as the gravity of the offense of murder, the premeditated nature of the offense, as well as the trauma that the victim’s death had imposed upon her family members and friends. The court also gave weight to the fact that a family-violence intervention order had been in place for the victim’s safety, and that the defendant showed no remorse and maintained his innocence. The court discussed the approach adopted by the police and the courts in relation to family violence, and noted that the evolution of society’s values in relation to the treatment of women must be taken into account in sentencing. The court sentenced the defendant to 30 years’ imprisonment (without parole-eligibility for 25 years).