Women and Justice: Jurisdiction

Domestic Case Law

Clubb v. Edwards (2019)

Abortion and reproductive health rights

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.

McCauley v. Club Resort Holdings Pty Ltd. Queensland Civil and Administrative Tribunal (2013)

Employment discrimination, Sexual harassment

The complainant worked at the Club Resort Holdings Pty Ltd., the respondent.  She was working in a cold larder preparing food when a colleague sexually harassed her.  The complainant sought an investigation by their employer.  The complainant alleged that the employer improperly conducted this investigation, resulting in further distress for the complainant and her needing to take several months of work.  Ultimately, she resigned.  The complainant also alleged that their mutual employer was vicariously liable for these acts as a result of a failure to take “reasonable steps” to prevent such acts.  The Tribunal awarded damages to the complainant, finding that: (i) the complainant was sexually harassed by her colleague; (ii) the sexual harassment constituted sex discrimination; (iii) the harassment constituted age discrimination; (iv) that the complainant was not victimized by her employers because she brought a sexual harassment complaint; and (v) respondent did not take reasonable steps to prevent the sexual harassment. 

Douglas v. CTML Pty Ltd. Queensland Civil and Administrative Tribunal (2018)

Gender discrimination, Property and inheritance rights

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.  

R.A. v. N.C. Queensland Civil and Administrative Tribunal (2018)

Gender discrimination

The complainant was a Muslim woman who wore a hijab covering her hair.  While the complainant and the respondent were in a residential elevator, the defendant made disrespectful remarks to the complainant about the complainant’s presumed religion.The two did not know each other – the complainant’s hijab was the only way for the defendant to identify her religion.  The complainant sought an apology.  Video evidence was submitted at trial from CCTV.  Importantly, there was an additional individual in the lift.  As a result of this witness, the tribunal was able to find that the defendant had committed a “public act” for the purposes of the Anti-Discrimination Act 1991 (Qld).  However, the tribunal ultimately did not find for the complainant as the words used were determined by the tribunal to not, in fact, result in religious vilification as the additional individual in the lift did not react to the words. This case is relevant as it goes directly to ongoing discrimination women may face in Australia as a result of expressing their religion (through, for example, wearing a hijab).

J.M. v. Q.F.G. and G.K. Anti-Discrimination Tribunal Queensland (1997)

Abortion and reproductive health rights, Gender discrimination, LGBTIQ

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.

R. v. H. Supreme Court of Queensland (2002)

Sexual violence and rape, Statutory rape or defilement, Trafficking in persons

The appellant advertised in Korea for families to come to Australia to attend a missionary school. The appellant was responsible for settling those families’ affairs, and they were dependent on him to organize the necessary extensions of visas. Most of the time, the parents spoke no English and their children spoke little English. The appellant organized accommodation for the parents of the complainant among other families, and at the same time he arranged for separate accommodation for their daughter with children of other families.  The accommodation for the daughter was close to the appellant’s house, but an hour’s drive from her parents’ house. The appellant was the only individual who had the keys to the children’s rooms. The appellant advised the father of the complainant to return to Korea to seek more families, and he did. One night, the appellant returned around 1:00 AM to the children’s accommodation and entered the complainant’s room where another girl was with her.  That girl left after certain remarks by the appellant.  The appellant took the complaint in his van to a remote place where he proceeded to touch her, took off her pyjamas, and then had sexual intercourse with her, despite her resistance.  During this resistance, they both fell to the floor of the van and the appellant injured his arm. The appellant threatened the complainant not to inform anyone about this incident, reminding her that her family needed him to renew their visas. The complainant immediately told her friends at the accommodation of the sexual assault. In the morning, the complainant walked to a public telephone where she called her father in Korea and told him about the incident, and then called her mother to inform her of the same. In fear with respect to their visas, the family went with the appellant to Brisbane where they had their visas renewed, acting as if nothing happened. Later, the father flew back to Australia and immediately lodged a complaint with the police. Through investigation, the police found physical evidence of rape, including injuries to her genitals consistent with rape, the appellant’s DNA, and wounds consistent with complainant’s statement of the rape.  Based on the evidence, the District Court sentenced the appellant to eight years for two counts of rape and one count of indecent dealing with a circumstance of aggravation. Relying on older cases, the appellant filed this appeal to lower his sentence, claiming it was too high for someone his age, considering he had no previous convictions and that there were no violence or weapon used. The Queensland Court of Appeal dismissed these arguments, stating that the older cases referenced by the appellant were dated before the implementation of new rules that increased the sentences for rape. In addition, even though no violence was used against the complainant, the court found that the appellant took advantage of her because of her visa situation, and this was an aggravating factor. Therefore, the appeal was dismissed.

Du Bois-Hammond v. Ariel Anti-Discrimination Tribunal Queensland (2004)

Employment discrimination, Gender discrimination

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.

McRostie v. Boral Resources Anti-Discrimination Tribunal Queensland (1999)

Employment discrimination, Gender discrimination

The complainant was an employee of the respondent company. The complainant filed this complaint against the respondent primarily for appointing a man, J., in the position of Administration Manager without advertising the position and therefore not giving the complainant an opportunity to compete for the position. The complaint rested on the following: (i) discriminating in complainant’s salary because  J., even though he held positions of similar ranking and job descriptions over the years, always received a higher salary than the complainant by at least $5,000; (ii) removing complainant’s name from the list of attendees to the Perth Conference of the Institute of Quarrying; (iii) not giving her the opportunity to relieve her line manager from his duties during his absence and giving this task to J.; (iv) deciding not to give her the task of delivering a presentation even though she was the project coordinator and instead giving it to J.; (v) placing J. on the Archipegalo Project and denying complainant’s request for leave time; and (vi) selecting J. to conduct a computer training when complainant had expertise in the area.  The complainant suffered from emotional distress and subsequently resigned from her position.  The complainant sought compensation for the ongoing financial loss caused by not finding a full-time employment since her resignation. The Anti-Discrimination Tribunal did not find discrimination on the part of respondent based on complainant’s allegations, except for two years of salary discrimination.  Accordingly, the Tribunal ordered the respondent to pay the complainant a compensation sum for the difference in the salaries within 30 days.

R. v. Hunter Supreme Court of Queensland (2014)

Domestic and intimate partner violence, Femicide

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. 

Brown v. Moore Supreme Court of Queensland (1996)

Employment discrimination, Gender discrimination, Sexual harassment

The respondent was a married aboriginal woman employed at the The Black Community Housing Service as a bookkeeper since 1985 and later as an Administrator until her resignation in August 1992. The first appellant became the director of the Housing Service in December 1990, and the second appellant was the employer, The Black Community Housing Service. The respondent started receiving calls from the appellant where he expressed his love to her and made inappropriate sexual remarks. The appellant also made inappropriate sexual remarks to the respondent when attending meetings together, on other occasions he gifted her “sexually explicit figurines,” and “touched her sexually suggestively on numbers of occasions.” The respondent did not confront the appellant in fear of losing her job, but she did complain to the board of directors who took no action against the appellant. Respondent filed a complaint against the appellant on the basis of sexual harassment and discrimination, and ultimately resigned when the board of directors would not remove appellant from his position while the investigation was underway. The Anti-Discrimination Tribunal found the claims of the respondent to be true. The Tribunal also learned that the employer did not have any policies on discrimination or sexual harassment, nor provided its employees with a training regarding the same. Since these are considered unlawful acts under the Anti-Discrimination Act 1991, the Tribunal ordered the employer and the appellant pay the respondent compensation for damages caused by the discrimination and sexual harassment. The first appellant filed this appeal stating that the Tribunal had no evidence that the respondent suffered any hurt and/or humiliation, nor that the respondent’s resignation was due to the behaviour of the appellant. The first appellant also objected on the compensation amount being “excessive in the circumstances.” The second appellant appealed, stating that the employer was not vicariously liable for the acts of the first appellant. The Supreme Court dismissed the appeal and affirmed the orders of the Tribunal.

Mount Isa Mines, Ltd. v. Hopper Supreme Court of Queensland (1998)

Employment discrimination, Gender discrimination, Sexual harassment

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.

RRT Case No. 1101038 Refugee Review Tribunal (2011)

Female genital mutilation or female genital cutting, Forced and early marriage, Harmful traditional practices

The applicant appealed a decision denying her a protection visa. The applicant demonstrated evidence that if she returned to Uganda, she would be forced to undergo FGM.  The applicant was a member of the Sabiny tribe, meaning her father’s family had the right under Ugandan law to take her away from her mother and compel her to obey traditional practices, including FGM. She further testified that if she returned to Uganda there would be a risk of abuse as she was a Christian, which was not accepted in her family village. Furthermore, when she was 12, her family found a potential husband for her, a witchdoctor who believed in Satan and professed sacrificing people to achieve a particular objective. She was therefore afraid that if she returned to Uganda, she would be forced to marry this individual, who believed that sacrificing people could bring him power and money. The tribunal found that the applicant was a person to whom Australia owed protection obligations.

RRT Case No. 0808751 Refugee Review Tribunal (2009)

Female genital mutilation or female genital cutting, Harmful traditional practices

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 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.

In the Marriage of Pavey Family Court (1976)

Divorce and dissolution of marriage

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.

In the Marriage of Todd (No. 2) Family Court of Australia (1976)

Divorce and dissolution of marriage

Mr. Todd and Mrs. Todd were married in 1960 and had two children. On 23 November 1974, Mrs. Todd left the matrimonial home with the two children, but all three moved back in on 21 April 1975, where they continued to reside until the parents decided to divorce in 1976. The application for divorce under the Family Law Act 1975 (Cth) (the “Act”) initiated in the Family Law Division of the Supreme Court of New South Wales was transferred to the Family Court of Australia. On the question of divorce, one key issue was what constituted “separation” and “separated and apart” for a continuous period of not less than 12 months. The court held that this marriage had irretrievably broken down since 23 November 1974, and a continuous separation for 12 months the application for divorce had been satisfied. The Court held that “separation” was broader than mere physical separation and concerned the martial relationship itself. According to the Court, “Separation can only occur in the sense used by the Act where one or both of the spouses form the intention to sever or not to resume the marital relationship and act on that intention, or alternatively act as if the marital relationship has been severed.” In this case, the Court held although the spouses moved back in together in April 1975, they never restored the marital relationship.

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.

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.

RO v. R Supreme Court of New South Wales (Court of Criminal Appeal) (2013)

Sexual harassment, Sexual violence and rape

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.

Jeffries v. R Supreme Court of New South Wales (Court of Criminal Appeal) (2008)

Domestic and intimate partner violence

The appellant in this case was convicted of multiple domestic violence offenses and sentenced to prison. The appellant sought an appeal on the basis that the judge in the lower court “erred in failing to consider special circumstances in relation to the question of accumulation” and also imposed a “manifestly excessive” sentence. In light of the seriousness of the appellant’s offenses, as well as his history of domestic violence against the victim in the case, the Court ordered the appeal dismissed. When dismissing the appeal, the Court noted the appellant’s “pessimistic . . . prospects of rehabilitation,” as well as general goals of deterrence and community safety.

R v. Hamid Supreme Court of New South Wales (Court of Criminal Appeal) (2006)

Domestic and intimate partner violence

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.

Gilroy v. Angelov Federal Court of Australia (2000)

Employment discrimination, Gender discrimination, Sexual harassment

Leoni Gilroy made allegations of sexual harassment against a co-worker, Branko Angelov, who is the respondent in this case. Gilroy sought damages against her employers, Craig and Toni Botting, the second respondents. Gilroy reported the sexual harassment to Mr. Botting, who told Gilroy that he didn’t believe Angelov would act in such a way. Nevertheless, Bottling agreed to keep Angelov away from her at work. Later, Mr. Botting terminated Gilroy’s employment, stating that Mrs. Botting believed that Mr. Botting and Gilroy were having an affair. The Court entered judgment in favor of Ms. Gilroy for $24,000 against the Bottlings, highlighting the emotional and financial difficulties experienced by Ms. Gilroy.

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.

DW v. R Court of Criminal Appeal (New South Wales) (2014)

Sexual violence and rape, Statutory rape or defilement

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.

Montero v. R Court of Criminal Appeal (New South Wales) (2013)

Sexual violence and rape, Statutory rape or defilement

The complainant, age 15, was sexually assaulted while staying at the applicant’s home. The applicant was convicted of the sexual offense and appealed the conviction. The applicant argued that the judge inappropriately used the location of the offenses, the applicant’s home, as an aggravating factor. The Court held that the application of this sentencing factor was appropriate as it concerns the violation of a visitor’s “reasonable expectation of safety and security.” The Court held that the sentencing judge did not err in terms of the administration of the sentence.

AZAAR v. Minister for Immigration and Citizenship (2009)

Domestic and intimate partner violence

The appellant’s claims concerned domestic violence perpetrated by her husband and assertions of inadequate state protection from such violence. The appellant claimed that she did not receive, and would not receive, effective state protection in Vanuatu from such violence “because of systemic discrimination against women resulting from cultural norms and practices.” Prior to review by the Federal Court, a lower court held that “it was not satisfied that there was a real chance of her being denied protection by the authorities in Vanuatu should she require it” although there was evidence of domestic violence and potential future harm. The lower court noted that the victim had not actually sought the protection of authorities. The Federal Court subsequently determined that any suggestion that victims of domestic violence must actually seek the protection of the authorities as “a prerequisite for a finding of absence of adequate State protection” was erroneous. Therefore, victims of domestic violence do not have to actually go to the police in order to substantiate claims of inadequate protection where other evidence, such as cultural norms and practices, would otherwise substantiate the claims.

Hickie v. Hunt & Hunt Human Rights and Equal Opportunity Commission (1998)

Employment discrimination, Gender discrimination

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.

Kumar v. Minister for Immigration & Multicultural Affairs Federal Court of Australia (2002)

Sexual harassment, Sexual violence and rape

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.

SVFB v. Minister for Immigration & Multicultural & Indigenous Affairs Federal Court of Australia (2004)

Female genital mutilation or female genital cutting, Gender-based violence in general, Harmful traditional practices, Sexual harassment, Sexual violence and rape

A citizen of Nigeria sought protection for fear that she would be subject to female genital mutilation. The Refugee Review Tribunal found that female genital mutilation constitutes serious harm amounting to persecution, but that on the facts, there was no real risk that the applicant would be subjected to female genital mutilation.

VWFG v. Minister for Immigration & Multicultural and Indigenous Affairs Federal Court of Australia (2005)

Female genital mutilation or female genital cutting, Forced and early marriage, Gender-based violence in general, Harmful traditional practices

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.

Minister for Immigration & Multicultural Affairs v. Ndege Federal Court of Australia (1999)

Domestic and intimate partner violence, Sexual violence and rape

A citizen of Tanzania sought protection on the basis that she feared persecution as a married woman in Tanzania. The applicant had been raped by her husband and argued that Tanzanian authorities were unwilling or unable to protect female citizens. The Refugee Review Tribunal denied the application because there was no evidence that the husband’s violence was related to any protected status. The court affirmed, but nevertheless remitted to the Tribunal to consider whether the husband’s violence against the applicant had been motived by a Convention related reason, such as race, religion, nationality, political opinion or of her membership in a particular social group.

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.

Weheliye v. Minister for Immigration & Multicultural Affairs Federal Court of Australia (2001)

Femicide, Gender-based violence in general, Sexual violence and rape

A citizen of Somalia sought a protection order on the basis that she feared persecution due to her status as young, a Somali and a woman. The application asserted that she had been sentenced to death by stoning for adultery in Somalia. The Refugee Review Tribunal denied the application, finding the applicant not credible and holding that neither married nor divorced Somalia women constituted a protected group. The court held that the Tribunal erred because it did not examine whether the law against adultery was applied and administered in Somalia in a discriminatory manner.

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.

SYLB v. Minister for Immigration and Multicultural and Indigenous Affairs Federal Court of Australia (2005)

Sexual violence and rape

A married couple, citizens of Yugoslavia and ethnic Albanians, sought protection on the basis that the wife feared persecution in Kosovo. The wife was raped by a Serbian soldier. The Refugee Review Tribunal concluded that the applicants each had a well-founded fear of persecution in Kosovo at the time they fled, but that those conditions no longer existed. The court concluded that the Tribunal misunderstood the legal test to be applied for the purpose of determining whether the female applicant was unwilling, due to a well-founded fear of persecution, to avail herself of the protection of her country.

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.

SZEGN v. Minister for Immigration and Multicultural and Indigenous Affairs Federal Court of Australia (2006)

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

A citizen of Fiji sought an extension of time to appeal a decision by a Federal Court Magistrate who affirmed a decision by the Refugee Review Tribunal to deny a protection visa. She alleged that she had a well-founded fear of persecution if returned to Fiji as a person who had been subjected to domestic violence by her former husband and as a member of the social group of “women at risk in Fiji.” The Tribunal found that while women had historically been at risk in Fiji, recent police forms and judgments suggested that she no longer had a reasonable fear of persecution. On appeal, she alleged that the Tribunal failed to provide her with a copy of certain country information as required by Australian law. The court found that the Tribunal was prepared to accept that the applicant was a member of a protected social group but did not accept that there was a lack of state protection. The court further found that the Tribunal adequately laid out the bases for its decision and that it did not rely on the material not provided to the applicant.

Richardson v. Oracle Corporation Australia Pty Ltd Federal Court of Australia (2014)

Gender discrimination, Sexual harassment

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.

Ayoub v. AMP Bank Limited Court of Appeal of Australia (2011)

Employment discrimination, Gender discrimination, Sexual harassment

Ms. Ayoub claimed harassment and discrimination following a performance appraisal after which her position was made redundant. She also sought worker’s compensation for anxiety/distress caused by the alleged conduct. An arbitrator found for Ms. Ayoub on the basis that the company had failed to consult her on the redundancy decision and mishandled the performance appraisal and these actions caused her mental injuries. A court overturned the arbitrator, finding that first, while it would be unreasonable for an employer to inform a worker of her redundancy in a callous way, the redundancy decision was unrelated to Ms. Ayoub’s performance, and second, Ms. Ayoub’s position was such that she did not legally have to be consulted ahead of time. The Court of Appeals affirmed the Acting Deputy President’s decision, finding no error of law.

VSAI v. Minister for Immigration & Multicultural & Indigenous Affairs Federal Court of Australia (2004)

Sexual harassment, Sexual violence and rape

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.

SZAIX v. Minister for Immigration & Multicultural & Indigenous Affairs and Refugee Review Tribunal Federal Court of Australia (2006)

Sexual harassment, Sexual violence and rape

A citizen of Indonesia sought protection on the basis that she feared persecution on the grounds of race, religion and membership of a particular social group, alleged to be either Indonesian women or Chinese Christian women in Indonesia. The appellant was raped in Indonesia. The Refugee Review Tribunal concluded that perpetrators of sexual assault in Indonesia do not engage in rape as a means of persecuting ethnic Chinese women (or women) as a particular social group. The court found that the Tribunal did not fully consider the applicant’s arguments that she feared persecution from local authorities for reporting the rape and the applicant was granted leave to amend her application to raise that ground and any other new grounds.

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."


Anti-Discrimination Act (1998)

Employment discrimination, Gender discrimination, LGBTIQ

The Anti-Discrimination Act 1998 makes it unlawful to directly or indirectly discriminate on the basis of certain grounds (“attributes”) in connection to public life; including employment, education and training, and provision of facilities, goods and services. The various unlawful grounds of discrimination include: sexual orientation, lawful sexual activity, gender, gender identity, intersex variations of sex characteristics, martial status, relationship status, pregnancy, breastfeeding, parental status, family responsibilities, irrelevant medical record, association with a person who has, or is believed to have, any of these attributes. Additionally, the Act prohibits inciting hatred towards a person on the grounds of their race, disability, religious beliefs, sexual orientation, or gender identity, as well as harassment, sexual harassment, and victimization towards a  person based on protected attributes or their intent to file a claim under this Act. It also prohibits a person from promoting discrimination through a sign, notice, or advertisement. The Act also establishes the Anti-Discrimination Commissioner to investigate and  resolve complaints. Complaints can be initiated by the person targeted by the discrimination, a trade union, or another representative for the targeted person. The Commission can also investigate any discrimination ex officio. If the Commissioner believes that the complaint cannot be resolved by conciliation or that the nature of the complaint is such that it should be referred to the Tribunal, the Commissioner can refer the complaint to the Anti-Discrimination Tribunal. If the Tribunal finds that a complaint is substantiated, it may, among other remedies, order the respondent to pay the complainant an amount the Tribunal thinks appropriate as compensation for any loss or injury suffered by the complainant and caused by the respondent's discrimination or prohibited conduct.

Justices Act (1959)

Domestic and intimate partner violence, Stalking

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.

Justice and Related Legislation (Marriage and Gender Amendments) Act (2019)

Gender discrimination, LGBTIQ

The Act was adopted to amend several major pieces of legislation in Tasmania, including the Adoption Act 1988, the Anti-Discrimination Act 1998, and the Births, Deaths and Marriages Registration Act 1999, with the purpose of improving and strengthening the rights of trans people. The new provisions make it possible to change legal gender through statutory declaration and remove the previous requirement of having completed gender reassignment surgery before amending a birth certificate. Additionally, gender is now allowed to be taken of birth certificates altogether. The Act entered into force on 5 September 2019.

Criminal Code Act (1924)

Abortion and reproductive health rights, Domestic and intimate partner violence, Female genital mutilation or female genital cutting, Gender-based violence in general, Sexual violence and rape, Stalking, Statutory rape or defilement

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.

Reproductive Health (Access to Terminations) Act (2013)

Abortion and reproductive health rights

The Act allows abortion by a medical practitioner up to 16 weeks of pregnancy with the woman’s consent. After 16 weeks, pregnancy may be terminated if two medical practitioners reasonably believe the continuation of pregnancy would involve greater risk to the mother’s physical or mental health than termination. At least one of the medical practitioners must specialize in obstetrics or gynaecology. In assessing the physical or mental health, the practitioners must consider the woman’s physical, psychological, economic, and social circumstances. A medical practitioner is not required to perform an abortion unless it is necessary to save the life of a pregnant woman or prevent her serious injury, and a nurse and midwife are required to assist in an emergency. However, a medical practitioner must provide the full range of pregnancy options to a woman. The Act also established “access zones” by criminalising interference, intimidation, recording, and similar behaviour within a radius of 150 meters from abortion clinics.

The Marriage Act of 1961 (2017)

Forced and early marriage, Gender discrimination

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.

Sex Discrimination Act of 1984 (2017)

Employment discrimination, Gender discrimination

Section 5 prohibits sex discrimination. The Act specifies that a person has committed sex discrimination if they treat someone less favorably because of their sex. Section 6 further prohibits discrimination based on marital or relationship status and section 7 prohibits discrimination based on pregnancy or potential pregnancy. Further, section 7AA prohibits breastfeeding discrimination . Moreover, section 7B deals with indirect discrimination and specifies that if an imposition of a condition, requirement, or practice has or is likely to have the disadvantaged effect, it is only allowed if such condition, requirement or practice is reasonable. Finally, pursuant to section 7D a person may take special measures for the purpose of achieving substantive equality. Such measures are not discriminatory.

Family Law Act of 1975 (2018)

Divorce and dissolution of marriage, Domestic and intimate partner violence

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.

Criminal Code Act of 1995 (2018)

Forced and early marriage, Trafficking in persons

Division 270 of the Criminal Code Act prohibits slavery and slavery-like offenses. Section 170.1A defines these offenses and related terms including coercion, forced labor, and forced marriage. Section 270.2 specifies that slavery offenses are unlawful, whether committed inside or outside of Australia. Section 270.4 criminalizes servitude offenses, 270.6A criminalizes forced labor offenses, section 270.7B criminalizes forced marriage offenses, section 270.8 criminalizes slavery-like offenses, 271.2 criminalizes trafficking in persons, 271.4 criminalizes trafficking in children, and 271.5 criminalizes domestic trafficking in persons. Section 270.11 clarifies that for all above offenses it is not a defense that a person consented to or acquiesced to prohibited conduct.

International Case Law

C. v. Australia Human Rights Committee (ICCPR) (2018)

Divorce and dissolution of marriage, International law, LGBTIQ

C. was a citizen of Australia and the United Kingdom who lived with A. as a couple in the State of Victoria and then Queensland.  They agreed to have a baby and that C. would be the birth mother.  They traveled to Canada and got married and then separated shortly after the marriage.  C. is the sole caregiver of the baby and no longer knows of the whereabouts of A.  C. wanted to formally dissolve her Canadian legal marriage so that she could remarry or enter a civil partnership in the future.  She also wanted to ensure she was not held responsible for A.’s debts.  Finally, when traveling abroad, she did not want A. to be deemed her legal spouse in certain countries where the marriage might be recognized and A deemed next of kin.  In Queensland, in order to obtain a file a divorce application to dissolve a marriage, a marital relationship must be legally recognized as a marriage.  Section 5(1) of the Marriage Act of 1961, which provided the relevant definition of marriage, define this term to mean “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.”  Further, Section 88EA of the Act provided that, “a union solemnized in a foreign country between: (a) a man and another man, or 9b) a woman and another woman, must not be recognized as a marriage in Australia.”  C. did not file for divorce in Australia because of the laws, nor did she apply in Canada or the United Kingdom because both had residency requirements for divorce.  C. filed her claim with the Committee claiming that the denial under Australian law of access to divorce proceedings for same-sex couples who have validly married abroad and the consequential denial of court-based relief in the form of a court order amounts to discrimination on the basis of sexual orientation, contrary to article 1491), ready together with article 291) (equal access to courts and tribunals), and article 26 (equality before the law) of the Covenant.  The Committee determined that C. was precluded from accessing divorce proceedings in Australia because her same-sex marriage was not recognized under sections 5(1) and 88EA of the Marriage Act of Australia, whereas couples in specific opposite-sex marriages not recognized in Australia, such as polygamous couples, do have access to divorce.  This was found to constitute differential treatment.  Australia stated they made a reasonable exception for polygamous marriages to enable parties to such marriages access to the assistance, relief and help provided by the family law courts in relation to (but not limited to) children’s matters, property matters, maintenance matters or divorce.  The Committee determined that Australia did not explain why this stated reason does not apply equally to unrecognized foreign same-sex marriages.  In the absence of more convincing explanations from Australia, the Committee found that the differentiation of treatment based on sexual orientation to which C. was subjected regarding access to divorce proceedings was not based on reasonable and objective criteria and therefore constitutes discrimination under article 26 of the Covenant.  Under article 2(3) of the Covenant, the Committee stated that Australia was under an obligation to provide C. with an effective remedy by providing full reparation for the discrimination suffered through lack of access to divorce proceedings.  Australia also was obligated to take steps to prevent similar violations in the future and to review its laws in accordance with the Committee’s views, and to provide the Committee information about the measures taken to give effect to the Committee’s views within 180 days.