Australia
McBain v. State of Victoria & ORS, (July 28, 2000)
Federal Court of Australia
Keywords: Discrimination-Gender/Sex
Brief Summary: The applicant was a gynocologist who was asked to provide a patient with in vitro fertilization (IVF) treatment. While otherwise suitable, the applicant was prevented from providing the treatment to the patient, a single woman, by the Infertility Treatment Act 1995 (Vic) (the State Act), which required women undergoing reproductive treatment to be married or in a de facto relationship. The applicant sought a declaration from the court that s 8 of the State Act is inoperative because it is inconsistent with s 22 of the Sex Discrimination Act 1984 (Cth) (the Commonwealth Act). Section 8(1) provides that women who undergo treatment must either be married and living with their husband on a genuine domestic basis or living with a man in a de facto relationship. Section 22 prohibits, inter alia, discrimination on grounds of marital status in the provision of services (subject to the exclusion under s 32 of treatment that that can only apply to members of one sex).
CEDAW: CEDAW was used to refute the claim of the Catholic Church (which submitted an Amicus Brief). The Catholic Church contended that the term "services" could be read consistently with Section 8. The court noted that since the Sex Discrimination Act was enacted to give effect to CEDAW, and the term could not be read consistently with CEDAW, the terms of CEDAW must prevail.
Attorney-General (WA) v. Marquet, (November 13, 2003)
High Court of Australia
Keywords: Other
Brief Summary: Case involving the Constitutionality of proposed Electoral bills.
CEDAW: CEDAW cited in a footnote in reference to the tremendous progress made in the area of women's suffrage.
B (Infants) & B (Intervener) v. Minister for Immigration & Multicultural & Indigineous Affairs, (June 19, 2003)
Family Court of Australia
Keywords: Other
Brief Summary: This case is an appeal from an order finding that the Family Court of Australia did not have jurisdiction to order the Minister of Immigration to release the Appellant's children from detention.
CEDAW: In dismissing the argument that Australia does not intend to implement the Convention on the Rights of the Child because the domestic laws prior to ratification were not in accord with the document, the Court noted the passage of the Sex Discrimination Act of 1984 after the ratification of CEDAW.
AB v. Registrar of Births, Deaths and Marriages, (August 16, 2006)
Federal Court of Australia
Keywords: Discrimination-Gender/Sex; Sexual Orientation
Brief Summary: Applicant was a married person who had undergone a sex change operation and subsequently applied for alteration of the birth record. The Registrar refused registration based on an Australian law which did not allow alteration of birth records for married persons.
CEDAW: The court held that Australia's Sex Discrimination Act was meant to give legal effect to CEDAW but ultimately held that discrimination on the basis of "marital status" applied only to laws which discrimination against women not to laws which burden both sexes equally.
U v. U, (September 5, 2002)
High Court of Australia
Keywords: Discrimination-Gender/Sex
Brief Summary: The case involved a custody dispute in which the appellant mother sought leave to move to India from Australia with her child who would reside there permanently in her mother's care; the respondent cross-petitioned that the child remain in his permanent custody in Australia.
CEDAW: In determining how custody should be decided, the court acknowledged that the wishes of the child to remain in contact with the father is a legitimate concern, however in today's society such contact does not require physical face to face contact. To require such contact would be to "impose serious deprivations upon the human rights of custodial parents, who are mostly women...[and] to entrench gendered social and economic consequences of caregiving upon women in a way that is contrary to the Convention on the Elimination of All Forms of Discrimination against Women to which Australia is a signatory. That Convention requires that such discrimination and inequality should be eliminated from the law of this country."
Jacomb v. Australian Municipal Administrative Clerical and Services Union, (September 24, 2004)
Federal Court of Australia
Keywords: Discrimination-Gender/Sex
Brief Summary: This discrimination case is a challenge to union rules which imposed inflexible quotas for the election of women representatives. The rules were adopted pursuant to Australian domestic law enacted to give effect to CEDAW. The rules were challenged on the basis that they were discriminatory in nature and did not meet the requirements of a "special measure" within the meaning of the Sex Discrimination Act.
CEDAW: The provisions of CEDAW as well as the purpose of the Convention were discussed in depth by the court. The court also examined how several other countries have dealt with the problem of achieving equality through facially discriminatory means. The court ultimately held that the union laws were discriminatory against men, however in view of the SDA, "read as a whole can render the rules lawful for so long as the rules are required to achieve substantive equality for women."
Ferneley v. Boxing Authority of New South Wales and Another, (December 10, 2001)
Federal Court of Australia
Keywords: Discrimination-Gender/Sex
Brief Summary: Applicant was a professional boxer who applied to the Boxing Authority of New South Wales for registration, but was denied on the basis of her gender; the Boxing and Wrestling Control Act 1986 stated that only men could apply to be registered. Applicant complained to the Human Rights and Equal Opportunity Commission; the complaint was rejected. She later appealed to the Federal Court alleging that her denial was discrimination in contravention of the Sex Discrimination Act 194.
CEDAW: The court recognized that the purpose of the Sex Discrimination Act was to give "effect to [CEDAW]...and prohibits sex discrimination in various fields of public life, including the provision of services. The rights set forth in CEDAW are intended to apply throughout Australia and guarantee that women will be treated on an equal basis with men. Australia is internationally obliged to remove such legislation and other administrative barriers which prevent the equal treatment of men and women in relation to relevant fields of activity." However, the court dismissed the applicant's petition finding that other provisions of the SDA were controlling in the instant case.
Gardner v. All Australia Netball Assn Ltd, (March 13, 2003)
Federal Magistrates Court of Australia
Keywords: Discrimination-Gender/Sex
Brief Summary: Applicant alleges that she was injured by the action of the AANA when they posed an interim ban on pregnant women playing in a netball competition. Applicant later obtained an injunction permitting her to play, but she missed several competitions in the meantime. AANA admitted the ban discriminated against pregnant women but stated that an exemption in the Sex Discrimination Act of 1984 controlled.
CEDAW: The Court discussed CEDAW as it related to the meaning and purpose of the Sex Discrimination Act (SDA) and concluded that prohibiting applicant from playing in the competition due to pregnancy was violative of the SDA as written. The court left to the legislature whether or not to expand the exemptions to the SDA but abstained from judicial legislation.
Royal Women's Hospital v. Medical Practitioners Board of Victoria, (April 20, 2006)
Federal Magistrates Court of Australia
Keywords: Other
Brief Summary: The hospital in question was the subject of an investigation pursuant to their treatment of patient "Ms X" who came to the hospital hysterical upon learning that her child would be born with skeletal dysplasia. Her hysterics and ongoing medical condition led the hospital to grant her an abortion at 32 weeks. The case at issue concerns whether or not patient confidentiality ought to entitle Royal Women's Hospital to withhold patient records in the absence of patient approval.
CEDAW: The hospital relied on CEDAW, stating that "although a lack of respect for the confidentiality of the patient medical information would be likely to affect both men and women, it might in particular deter women from seeking advice and treatment in relation to matters such as reproductive health and sexual or physical violence...a lack of confidentiality...would be likely to affect detrimentally the accessibility and acceptability of health services...which in turn would call into question whether health services would be available on a basis of equality between men and women as required by...CEDAW." The court rejected the hospital's argument on these grounds, finding that the actions of the Board were in no way discriminatory.
Thomson v. Orica Australia Pty Ltd, (July 30, 2002)
Federal Court of Australia
Keywords: Discrimination-Gender/Sex, Employment
Brief Summary: Applicant, Thomson, sued Orica alleging discrimination on the grounds of sex and pregnancy. Applicant, an Orica employee, took maternity leave from the company intending to return to work; she alleges, however, that the circumstances of her return were such that it amounted to a repudiation of her contract of employment and unlawful discrimination under the Sex Discrimination Act.
CEDAW: CEDAW mentioned in conjunction with the applicability of the SDA.