Women and Justice: Location

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.



Dranichnikov v. Australia Human Rights Committee (2004)

Gender discrimination

HRC held sex discrimination claim inadmissible for non-exhaustion of domestic remedies because of High Court judgment in petitioner's favor.



Domestic Case Law

Carne v Wride & Carne v Nicholas Supreme Court of the Northern Territory (2012)

Domestic and intimate partner violence

The appellant Barry Carne was formerly in a relationship with L.S., the victim and the mother of his four children.  One day Carne entered L.S.’s home without consent, destroyed property, and confronted L.S..  During the altercation he grabbed and twisted L.S.’s right hand and fingers, causing her to fall in pain.  As a result he was charged with aggravated assault, and a domestic violence order was issued against him.  The domestic violence order restrained him from contacting, approaching, intimidating or harassing the victim and from exposing their children to domestic violence.  While the domestic violence order was in force, Carne again went to L.S.’s house.  After L.S. did not answer, he attempted to hang himself outside the home, only to be saved by his son, who was 14 at the time.  Carne was charged with breaching the domestic violence order, and pleaded guilty.  The sentencing magistrate sentenced him to eight months’ imprisonment for the breach and two months for the aggravated assault, to be served concurrently.  Carne appealed the sentence, claiming that it was manifestly excessive, and argued that the magistrate took into account irrelevant matters, in particular his suicide attempt.  The court of appeal considered the definition of “domestic violence” and whether Carne’s attempted suicide in front of the children was an attempt to cause mental harm to L.S. and/or her children.  The court held that the sentencing magistrate had not received sufficient evidence from the prosecution demonstrating that Carne had attempted the suicide in order to cause mental harm to L.S. and/or her children and, accordingly, it was not open to the magistrate to make such a finding.  The magistrate was required to exclude any other reasonable hypothesis, permitted by the facts, regarding the attempted suicide before concluding that the intent was to cause mental harm.  As such, the sentence was reduced to one month’s imprisonment.



Hofer v. Anti-Discrimination Commissioner Supreme Court of the Northern Territory (2011)

Employment discrimination, Sexual harassment

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



The Queen v. D.A. Supreme Court of the Northern Territory (2017)

Sexual violence and rape

The complainant, a 32-year-old nurse, woke up to the sound of someone breaking into her house in the early hours.  She screamed and struggled for 20 minutes as the perpetrator attempted to have sexual intercourse with her, eventually succeeding.  The victim managed to call the police as the perpetrator was masturbating, which caused the perpetrator to flee the scene.  The accused, who was 16 years old at the time of the offense, pleaded not guilty to having sexual intercourse with the victim without the victim’s consent while knowing or being reckless as to the lack of consent.  DNA tests revealed a match between the DNA of the perpetrator and the sperm found in the victim.  The accused challenged the admissibility of the DNA test, arguing that he did not properly consent to the test.  The court held that the benefit the public would gain from admitting the DNA evidence outweighed any undesirability of admitting the evidence, such as encouraging improper police conduct.  Accordingly, the evidence was ruled admissible.



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.



Castles v. Secretary to the Department of Justice Supreme Court of Victoria (2010)

Abortion and reproductive health rights, International law

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



Plaintiff S99/2016 v. Minister for Immigration and Border Protection Federal Court of Australia (2016)

Sexual violence and rape

This case considered whether the Australian Minister for Immigration owed a duty of care to procure the safe and legal abortion for the Applicant refugee who arrived unlawfully in Australia from Africa (personal identifying information is redacted). After being resettled as a “transitory person” on Nauru, she was raped while unconscious during a seizure and became pregnant. Specifically, the Applicant sought an injunction preventing her abortion from occurring in Papua New Guinea where it would not be safe and legal and instead sought to be returned to Australia for the procedure. The Court granted the injunction to prevent the Applicant’s abortion from being performed in Papua New Guinea or any location where a participant could be subject to criminal liability. The Court held that the Minister for Immigration and the Australian Government owed the applicant a duty of care, which required them to “exercise reasonable care in the discharge of the responsibility that they assumed to procure for her a safe and lawful abortion.” However, the Court declined to require that the Minister bring the Applicant to Australia for the procedure. In reaching this decision, the Court considered the risks of the applicant seeking an abortion in Papua New Guinea, including the illegality of abortions, the poor quality of medical care, the Applicant’s dependence on Australia, and the Applicant’s medical needs. The Court also considered the imminence of harm and the insufficiency of damages as a remedy for this harm.



McBain v. State of Victoria Federal Court of Australia (2000)

Gender discrimination

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



CES v. Superclinics New South Wales Court of Appeal (1995)

Gender discrimination

The appellant, CES, brought a medical negligence case against the respondent, Superclinics, seeking damages for loss of the opportunity to terminate her pregnancy after a number of medical practitioners repeatedly failed to properly diagnose her pregnancy. The medical negligence claim aside, the Court of Appeal considered the decision of R v. Wald – namely that that an abortion is lawful if a doctor is able to say that, in the particular woman’s circumstances, an abortion is required to avoid a “serious danger to her life or to her physical or mental health” (including “the effects of economic or social stress”). Justice Kirby liberalized and extended the R v Wald decision by finding that when determining whether to perform an abortion, consideration should be given not only to the woman’s health during the pregnancy, but also after the child is born. Justice Kirby’s interpretation of the law now represents the legal position in New South Wales, Australia.



R. v. Davidson Supreme Court of Victoria (1969)

Gender discrimination

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

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



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).



Smythe v. Banks Family Court of Australia (2016)

Domestic and intimate partner violence

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



Equal Remuneration Case Fair Work Australia (2012)

Employment discrimination, Gender discrimination

The Australian Services Union brought a claim against Fair Work Australia (FWA) on behalf of non-government workers in the Social, Community and Disability Services (SACS) industry for gender-related underpayment. They argued because the majority of workers in the SACS industry were female, they were compensated less than other state and local government employees in more male-dominated fields. The Full Bench of FWA found that gender had an important influence on the alleged pay gap, even though it was not the sole cause. In a landmark decision, FWA ordered increases of between 19% and 41% to the award rate to remedy the part gender had played in inhibiting long-term wage growth in the SACS industry – i.e., to prevent the SACS employees from suffering disadvantageous treatment for being predominantly female.



Poppy v. Service to Youth Council, Inc. Federal Court of Australia (2014)

Employment discrimination, Gender discrimination

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



Stanley v. Service to Youth Council, Inc. Federal Court of Australia (2014)

Employment discrimination, Gender discrimination

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



Minister for Immigration and Citizenship v. SZONJ Federal Court of Australia (2011)

Domestic and intimate partner violence, Gender discrimination

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

This decision disproves the previous position in AZAAR v. Minister for Immigration and Citizenship, Federal Court 2009.



Minister for Immigration and Citizenship v. SZONJ Federal Court of Australia (2011)

Domestic and intimate partner violence, Gender discrimination

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



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.



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.



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.



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.



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.



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.



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.



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.



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."



Legislation

Criminal Code of the Northern Territory of Australia (1983)

Sexual violence and rape

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



Domestic and Family Violence Act (Northern Territory) (2017)

Domestic and intimate partner violence

The Domestic and Family Violence Act 2007 (NT) empowers the Magistrates’ Court to issue orders for the protection for victims of domestic violence.  A domestic violence order may impose restrictions on the ability of the person whom the order is against to contact, use violence against, damage the property of, threaten, stalk or harass the victim.  A domestic violence order may be issued to victims including: a spouse or former spouse of the perpetrator of the violence; a person who is or has been living with the perpetrator; a relative or former relative of the perpetrator; and a person who has or has had an intimate personal relationship with the perpetrator.  The domestic violence order may be sought by the victim (if over 15 years old), his/her legal representative, a police or child protection officer, or a court.  Knowingly breaching a domestic violence order is a criminal offence, punishable by up to 400 penalty units ($62,000 as of August 2018) or imprisonment for two years.  The domestic violence order remains in force for the period stated, but may be revoked earlier by the victim’s consent or a court order.



Anti-Discrimination Act (Northern Territory) (2018)

Employment discrimination, Gender discrimination, LGBTIQ, Sexual harassment

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



Termination of Pregnancy Law Reform Act of 2017 (Northern Territory) (2017)

Abortion and reproductive health rights

The Termination of Pregnancy Law Reform Act 2017 (NT) reforms the laws in the Northern Territory relating to terminations of pregnancy by improving access to abortion and abortion drugs, and prohibiting harassing conduct targeted at persons seeking abortion.  From July 1 2017, termination was made available in the Northern Territory up to 14 weeks into a pregnancy if a medical practitioner considers the termination to be appropriate having regard to: all relevant medical circumstances; the woman’s current and future physical, psychological and social circumstances; and professional standards and guidelines.  For women who are more than 14 weeks but fewer than 23 weeks into the pregnancy, an abortion is permitted if two medical practitioners agree that the termination is appropriate having regard to the same factors.  Only terminations necessary to preserve the life of the pregnant woman are permitted 23 weeks or more into the pregnancy.  The Act makes it an offense to engage in harassing conduct in termination facilities or any area that is within 150m of such facilities.  The maximum penalty for such an offense is 100 penalty units ($15,500 as of August 2018) or 12 months’ imprisonment.