Tasmania

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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.



Legislation

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.