Women and Justice: Court: High Court of Australia

Domestic Case Law

The Queen v. Kilic High Court of Australia (2016)

Domestic and intimate partner violence

This domestic violence case involved an appeal against a sentencing decision. The defendant set fire to the victim when she was 12 weeks pregnant and caused serious injury. After the attack, she terminated her pregnancy due to the permanent nature of her injuries. The trial court sentenced him to 15 years imprisonment. On appeal by the defendant, the Court of Appeal decided that this was “manifestly excessive” compared to other cases of serious injury by fire and resentenced the defendant to 10 years and six months imprisonment. On appeal by the prosecution, the High Court of Australia held that the Court of Appeal had erred in decreasing the sentence and pointed out that there were not enough comparable cases of intentionally causing serious injury by fire and the few cases mentioned could not establish a sentencing pattern.

The State of New South Wales v. Amery High Court of Australia (2006)

Employment discrimination, Gender discrimination

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.

Secretary, Department of Health and Community Services (NT) v. JWB and SMB High Court of Australia (1992)

Forced sterilization

The court held that the applicants, as joint guardians of a 14-year-old child with a severe mental disability, were allowed to authorize the sterilization of the child without a court order, provided that (i) the circumstances were so compelling that the welfare of the child justified such an invasive procedure and (ii)  there was no possibility of the child acquiring the capacity to decide for herself. Generally, it was established that children with the maturity and intelligence to fully understand proposed treatment can make such a decision even though they have not reached the age of adulthood. Parents or guardians of children who do not have sufficient capacity or maturity or intelligence to decide, can make such a decision on behalf of their children, provided that the treatment is in the child’s best interest. However, the parental ability to consent to sterilization is limited to circumstances in which sterilization is required to treat some malfunction or disease. In relation to non-therapeutic purposes, a court order is required to authorize sterilization.

Munda v. Western Australia High Court of Australia (2013)

Domestic and intimate partner violence, Femicide

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.

J. v. The Queen High Court of Australia (2018)

Domestic and intimate partner violence, Sexual violence and rape, Statutory rape or defilement

In 2015, the appellant was charged and convicted for committing five sexual offenses against his sister. The had purportedly occurred over  years,. Most of the charged offenses, sexual exploitation of a child and two rapes, occurred when the appellant was an adult, but prosecutors also charged him with an indecent assault committed when he was 11 or 12 years old and thus presumed to be incapable of the offense. To rebut this presumption, the prosecution offered evidence of the appellant’s earlier, uncharged acts of sexual violence against his sister beginning when he was five or six years old. In the first appeal, the Court of Criminal Appeal found that the prosecution’s rebuttal evidence was insufficient to overcome the doli incapax presumption for the indecent assault charge and the evidence was “too sparse” to sustain a conviction for the third count in the indictment. The court upheld the other three convictions. In this appeal, the High Court examined whether it was permissible for the prosecution to use evidence of the dismissed charges for “contextual” purposes related to the remaining three charges, each of which the appellant was convicted. In dismissing this appeal, the High Court found unanimously that the evidence was relevant because it illustrated the family background in which the appellant and his sister were raised and that it was admissible “relationship evidence.” The court found that without such contextual evidence, the sexual abuse claims could easily have been seen as implausible.

Australian Iron & Steel Pty. Ltd. v. Banovic High Court of Australia (1989)

Employment discrimination, Gender discrimination

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.

Minister for Immigration and Citizenship v. SZMDS High Court of Australia (2010)

Gender-based violence in general, International law, LGBTIQ

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.

Appellant S395/2002 v. Minister of Immigration and Citizenship High Court of Australia (2003)

Gender-based violence in general, International law, LGBTIQ

The appellants, both homosexual male citizens of Bangladesh, arrived in Australia and applied for protection visas. To be recognized as refugees, the appellants had to show that they had a well-founded fear of being persecuted due to their race, religion, nationality, membership in a particular social group, or political opinion. The appellants argued that they belonged to a “particular social group” that was subject to discrimination and harm in Bangladesh by virtue of their homosexuality. A delegate of the Minister for Immigration and Citizenship initially determined that because the appellants had conducted their relationship in a discreet manner in Bangladesh, they would suffer no serious harm if they returned to Bangladesh and continued to keep their relationship secret. For this reason, appellants were initially denied protection visas, and the Refugee Review Tribunal affirmed this decision. The appellant’s appealed to the Federal Court for judicial review and the primary judge dismissed the application, agreeing with the delegate’s reasoning about the discreetness of the appellants’ relationship. Appellants appealed to the Full Federal Court, which also dismissed their appeal. Appellants then appealed to the High Court, which granted them special leave to appeal. The High Court considered whether the Tribunal had erred in requiring or expecting the appellants to behave discreetly in order to avoid persecution. In a four-to-three decision, the High Court found that the Tribunal had erred because it improperly split the social group of homosexual men into two groups, discreet and non-discreet. The High Court held that the expectation that a person take reasonable steps to avoid persecutory harm, does not include the need to be discreet about sexuality, especially given that the appellants may have only been acting discreetly due to the persecution of openly homosexual men in Bangladesh. The case was referred back to the Tribunal for redetermination.

Munda v. State of Western Australia High Court of Australia (2013)

Domestic and intimate partner violence

The accused, a 32-year-old Aboriginal man (Munda), killed his de facto wife during an argument by punching her in the face and head numerous times and ramming her head into the wall. Both were intoxicated, and Munda had used some cannabis. Munda had a history of alcohol and drug abuse. At the time of the incident Munda was subject to a lifetime violence restraining order prohibiting him from having any contact with the deceased. The order was imposed after a previous incident for which Munda was convicted of causing grievous bodily harm to the deceased. Munda and the deceased ignored the restraining order and chose to continue their relationship. Munda pleaded guilty to manslaughter and was sentenced to five years, three months’ imprisonment. The prosecution appealed on the ground that the sentence was manifestly inadequate. Munda was resentenced to seven years, nine months’ imprisonment. Munda appealed to the High Court. The High Court noted that a just sentence must accord due recognition to the human dignity of the victim of domestic violence and the interest of the community in the denunciation and punishment of a “brutal, alcohol-fuelled destruction of a woman by her partner.” While the High Court acknowledged that Munda had a drug / alcohol addition, it held that courts must exercise caution in characterizing or treating an offender as a ‘victim’ because it can lead adult perpetrators to wrongly believe that they are not truly responsible for their conduct, which can lead to a failure to properly protect the community. While the High Court acknowledged that Munda’s severe social disadvantages must be considered, that consideration must be balanced with the seriousness of the offense. The court noted that indulging in drunken bouts of domestic violence is an example of moral culpability to a “very serious degree” and that this was not reflected in the original sentence. The appeal was dismissed by a majority (Bell J dissenting).

New South Wales v. Lepore High Court of Australia (2003)

Sexual violence and rape

This decision concerned three separate cases of assault: New South Wales v. Lepore, Samin v. Queensland, and Rich v. Queensland. Each case involved the abuse of students by public school teachers. The victims alleged that the educational authority was liable on the basis of a non-delegable duty of care. The Court found the argument unpersuasive and overly broad: “The proposition that, because a school authority's duty of care to a pupil is non-delegable, the authority is liable for any injury, accidental or intentional, inflicted at school upon a pupil by a teacher, is too broad.” The victims also sought damages from the government on an alternative theory of vicarious liability. The Court considered related decisions by the Supreme Court of Canada and the House of Lords where educational authorities were held vicariously liable for the conduct of their employees. The Court asserted that vicarious liability for the criminal conduct of an employee exists where the employee was acting as agent, servant, or representative of the employer when the incident occurred. The Court ordered a new trial in the case of Lepore, and dismissed the appeals of Samin and Rich.

Sok v. Minister for Immigration and Citizenship High Court of Australia (2008)

Domestic and intimate partner violence

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.

Banditt v. R High Court of Australia (2005)

Sexual violence and rape

The relevant offense occurred when the appellant broke into and entered the home of the complainant, who was asleep. The appellant had sexual intercourse with the complainant without her consent. The appellant was convicted in a jury trial. The appellant challenged his conviction based on an instruction provided by the trial judge to the jury concerning the meaning of “reckless.” The appellant claimed that the instruction was insufficient, arguing that recklessness “is satisfied by "a discrete mental state which is, 'Even if I knew, I would continue. It does not matter to me'." The High Court held that the jury instruction was proper as administered and dismissed the appeal.

Croome v. Tasmania High Court of Australia (1997)

Gender-based violence in general

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.

Phillips v. The Queen High Court of Australia (2006)

Gender-based violence in general, Sexual violence and rape

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.

PGA v. The Queen High Court of Australia (2012)

Domestic and intimate partner violence, Gender-based violence in general, Sexual violence and rape

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.

NSW Registrar of Births, Deaths, and Marriages v. Norrie High Court of Australia (2014)

Gender discrimination

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.

Minister for Immigration and Multicultural Affairs v. Khawar High Court of Australia (2002)

Domestic and intimate partner violence

A Pakistani citizen and her children applied for protection visas in Australia. The issue was whether Pakistan failed to provide protection against domestic violence and if this failure can be considered persecution (allowing refugee status). The Court found that the woman could be considered a part of a persecuted "social group" because women are a "distinct and recognizable group" and that failure to protect can be persecution if there is 1) "criminal conduct of private citizens" and 2) "condonation [sic] of such conduct by the state or its agents, in circumstances where the state has a duty to protect against such harm."