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INSIDE THIS ISSUE
1. Introduction and forthcoming seminar detailsWelcome to the August 2003 edition of the Legal Bulletin, covering developments in domestic and international human rights law during the period 1 May to 31 July 2003. Most readers will be aware that the HREOC Legal Section is now conducting seminars in connection with the publication of each new edition of the Bulletin. Those seminars will focus upon one or more developments in domestic or international human rights law discussed in each new edition. At our first seminar, we discussed the Full Federal Court’s decision in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 197 ALR 241. That seminar was presented by Craig Lenehan, A/g Deputy Director of the Legal Section, who had carriage of the Commission’s intervention in that case. The seminar was attended by approximately 50 people. We would like to thank those who came for their attendance and for their very useful feedback.
Apart from Mayer, there have been a number of significant developments in domestic and international human rights law since the June edition of the Legal Bulletin. In the Australian context:
In the international sphere, the European Court of Human Rights has handed down an interesting decision regarding discrimination on the ground of sexuality (see Karner v. Austria (24 July 2003) discussed in section 3.2 below) and the United States Supreme Court has held that State laws criminalising sodomy are invalid under the United States Constitution (see Lawrence et al v Texas in section 3.3 below). Our next edition of the Bulletin will be published in November 2003, covering the period 1 August 2003 to 31 October 2003. That period is already shaping up as an interesting time for our practice area and we look forward to bringing you the next edition. 2. Selected general Australian jurisprudential/legislative developments relevant to human rights2.1 JurisprudenceB and B v Minister for Immigration and Multicultural and Indigenous Affairs [2003] Fam CA 451Facts and Background This matter involved an appeal from a decision of Dawe J, in which her Honour held that the Family Court had no jurisdiction to make orders in respect of certain children held in immigration detention. In those proceedings, two male children (aged 14 and 12) detained under s196 of the Migration Act 1958 (Cth) sought orders that the respondent release them from the detention centre in which they were detained. Those orders were sought on the basis that their continuing detention was harmful to their welfare. The appeal was brought on behalf of the two boys by their mother. Although not parties to the original application, the mother also was also given leave to add as appellants the boys’ three sisters aged 11, 9 and 6. The children’s father (who intervened at first instance) was also an appellant. The Full Court (Nicholson CJ and Ellis and O'Ryan JJ) considered whether the Family Court, in exercising its welfare jurisdiction and injunction powers, could make orders to release the children from detention. Jurisdiction All members of the Full Court held that the Family Court has a broad jurisdiction in relation to the welfare of children, akin to the ancient parens patriae jurisdiction of the English Courts. That jurisdiction:
As regards the last requirement, the majority of the Court (Nicholson CJ and O'Ryan J) held that the subject matter of the orders sought by the appellants against the Minister was sufficiently connected with the heads of constitutional power supporting the relevant parts of the Family Law Act 1975 (Cth) conferring the Court’s welfare jurisdiction. In discussing s51(xxi) (marriage power) and s51(xxii) (power to make laws with respect to divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants), Nicholson CJ and O’Ryan said (at [241]):
Ellis J dissented in relation to that issue and held that the subject matter of the orders sought by the children was not sufficiently connected with the legislative heads of power conferred by s51(xxi) and s51(xxii) of the Constitution (see at [420]). The majority stated (in obiter comments) that provisions of the Family Law Act 1975 (Cth) conferring the welfare jurisdiction were also supported by the external affairs power (s51(xxix) of the Constitution), in that the Family Law Reform Act 1995 (Cth) had amended those provisions so as to partially implement the United Nations Convention on the Rights of the Child (CROC) (see at [248]-[288]). As such, that jurisdiction was said to extend to ex-nuptial children rather than being limited to children of marriages. Ellis J disagreed and was of the view that Parliament, in enacting the Family Law Reform Act 1995 (Cth), did not implement CROC (see at [424]). Migration Act 1958 (Cth) and lawfulness of detention At first instance, Dawe J held that section 196 deprived the Family Court of any jurisdiction to release an unlawful non-citizen. That section relevantly provides:
Nicholson CJ and O’Ryan J noted that those provisions had been considered in the decisions of the Full Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 197 ALR 241 and Minister for Immigration and Multicultural and Indigenous Affairs v VFAD of 2002 (2002) ALR 111. As noted above, Al Masri was the subject of our first Legal Bulletin Seminar and was discussed in the last edition of the Legal Bulletin which may be accessed at: http://www.humanrights.gov.au/legal/bulletins/volume_4.html. Having regard to the reasoning in those authorities, their Honours considered that the Migration Act 1958 (Cth) did not prevent the making of orders for the release of the children, under the Court’s broad welfare jurisdiction, if the detention was unlawful. Their Honours’ approach differed from that of the trial judge and the Court indicated that her Honour was “plainly wrong” in that regard (at [365]). Their Honours went on to discuss (at [367]-[390]), without finally deciding how issues of lawfulness might arise in relation to the children in the present proceedings. They stated that the Full Court in Al Masri emphasised the importance of the ability of unlawful non-citizens to be able to bring their detention to an end under section 198(1) of the Migration Act 1958 (Cth). Section 198(1) provides:
Their Honours said that raised particular issues for children, who may well lack the legal capacity or legal competence to be able to bring their detention to an end under that provision. The children in the present matter were therefore said to potentially be in a somewhat similar position to Mr Al Masri, in that they were unable to bring their detention to an end of their own accord. Their parents could have done so, but their Honours said that children were not to be regarded as chattels of their parents and were entitled to the same protections under law as adults. On that basis, their Honours said that the children appeared to be in “indefinite detention”, which could only be ended by the actions of their parents or by the children making a request for repatriation themselves after they achieved sufficient legal capacity to do so. Their Honours said that this raised the possibility that the children would spend their entire childhoods in detention, which could not have been intended by Parliament and was said to be potentially unconstitutional. Their Honours also referred to article 37 of the CROC in support of their conclusion that the detention was probably unlawful. Ellis J did not consider that the continued detention of the children was unlawful as it could not be said that there was no real likelihood or prospect in the reasonable foreseeable future of the children being removed and thus released from detention (at [426]). Orders not contingent upon a finding of unlawfulness of detention Nicholson CJ and O’Ryan J further stated that, if they were wrong as to the probable unlawful nature of the detention, the Court might still make orders regarding the nature and type of detention in which the children were held and might also make orders relating to the provision of medical treatment and appropriate education to the children while in immigration detention (see at [391]-[400]). Ellis J agreed with that part of the majority’s judgement – at least in relation to orders regarding medical treatment and the protection of children from violence and trauma (see at [421] and [428]). Orders and further steps The Court set aside the relevant orders of Dawe J and ordered that the case be remitted for rehearing as a matter of urgency. The matter has since been the subject of a number of decisions, which have been handed down after the cut-off date for this edition of the Bulletin, including a further decision of a differently constituted Full Family Court, in which the Minister was ordered to release the children on an interlocutory basis pending final hearing. Those decisions will be discussed in the next edition of the Bulletin. It should also be noted that an appeal from the first decision of the Full Family Court (discussed above) will be heard by the High Court on 30 September 2003. Mulholland v Australian Electoral Commission [2003] FCAFC 91 (13 May 2003)This matter involved an appeal from the decision of Marshall J. In 1983, the Commonwealth Electoral Act 1918 was amended so as to make provision for the direct funding of political parties; “list” voting in the Senate; and for recording party affiliations on the ballot paper. These reforms required some machinery to distinguish between political parties and other organisations. The machinery adopted was a registration system contained in the new Part IX of the Act. Subsequently, there have been a number of amendments to the registration provisions including the requirement for a party to have at least 500 members; a prohibition on two or more parties relying on the same person as a member in calculating the number of members; and a new power given to the AEC to review the eligibility of political parties and to request specified information on the party’s eligibility to be registered. The AEC formally requested the Democratic Labour Party (DLP) to provide it with certain information, including the names and addresses of its members. The DLP did not make that information available and on 16 November 2001, the AEC informed the DLP that it was considering deregistering the party on the basis of its failure to provide the information sought. The appellant argued that some provisions of the legislative scheme were invalid for breach of the implied requirements for freedom of communication and participation and an implied right to “political privacy” said to be implicit in the Constitution. The main issue considered by the Full Court was the issue of the requirement for freedom of communication. The Court referred to the test laid down in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 where the High Court stated (at 567-568) that when a law of a State or Federal Parliament or a Territory legislature is alleged to infringe the requirement of freedom of communication, two questions must be answered before the validity of the law can be determined:
If the first question is answered “yes” and the second is answered “no”, the law is invalid. The Full Court answered the first Lange question in the affirmative, identifying the legislative burden as the requirement that a party be registered before it could receive the various privileges available to registered parties. The Court then considered whether the law was reasonably appropriate and adapted to serve a legitimate end. It found the requirement of registration to be part of the legitimate objective of the regulation of elections. In respect of the requirement for 500 members, the Court found that while “500” may be an arbitrary number, nothing was put before it to suggest it was inappropriate. The Court noted that the prohibition on two or more parties relying on the same person as a member in calculating the number of members had the effect of changing the requirement from 500 members, to 500 members who are prepared to acknowledge their membership and whose membership is not relied on by another political party for the purposes of being registered. That provision was directed to the problem of a party registering a number of other parties with the same 500 members but with new party names that might be attractive to the electorate and then using these “dummy” parties to direct preference votes. The Court felt that there was no reason to think that “practical increase” in the number of required members rendered the scheme one that was not reasonably appropriate and adapted to the legitimate end. The Court concluded that the answer to the second Lange question was “yes”. Thus, the relevant provisions of the Act were not invalid by reason of any constitutional limitation respecting the freedom of political communication. The Court agreed with Marshall J’s conclusion that there was no right to "political privacy" implicit in the Constitution. KN v SD and Secretary, Department of Immigration & Indigenous and Multicultural Affairs (29 July 2003)This matter involved an appeal to the Full Family Court from a decision of Chisholm J handed down on 10 October 2002. The mother fled Russia after witnessing a murder in a nightclub and being raped by casino security guards and police. She arrived in Australia in 1997 on a false passport. She subsequently had a relationship with the first respondent. Their child, to whom the trial judge referred to “Mark” for the purposes of anonymity, was born on 14 December 2001. Mark lived with his father from the end of May 2002, when his mother was taken into Villawood Immigration Detention Centre. Section 198 of the Migration Act 1958 (Cth) deals with the removal from Australia of unlawful non-citizens as soon as is “reasonably practicable”. Before Chisholm J, lawyers for the mother argued that where the removal of a parent under s198(6) of the Migration Act 1958 (Cth) would be contrary to the best interests of a child, such a removal is not “reasonably practicable” within the meaning of that section. Chisholm J held that as a matter of ordinary language, this was not a plausible interpretation of the opening words. He commented:
His Honour further held that the construction advanced by the mother would defeat the clear intention of specific provisions in the Migration Act 1958 (Cth) which provide a detailed code dealing with removal from Australia. The issues before the Full Court were:
The Court referred to the Full Family Court’s decision in B and B and Minister for Immigration & Multicultural & Indigenous Affairs (see above) where it was held that the Convention on the Rights of the Child (CROC) was sufficiently incorporated by the Family Law Reform Act 1995 (Cth) (which inserted s60B), to provide a source of constitutional power to make orders under s67ZC of the Act (relating to the welfare of children). The Court rejected the proposition that fundamental rights are limited to those conferred by the common law and held that s60B confers fundamental rights on a child. Lawyers for the mother asserted that the rights so conferred upon the child could be relied upon by the mother to avoid deportation pursuant to s198(6) of the Migration Act 1958 (Cth). In the view of the Full Family Court, such an interpretation extended beyond the intended ambit of s60B. Their Honours said in that regard:
The Court held that s198 of the Migration Act 1958 (Cth) was expressed in terms that override Australia’s international obligations as incorporated in Australian municipal law and the Family Law Act 1976 (Cth). As such, those provisions overrode the rights of an Australian child to know and have contact with one of its parents who entered Australia on a false passport. While the Court felt great sympathy for the mother and child, in its view, rights conferred by s60B and CROC could not be interpreted as interfering with the reasonable practicability of removing the mother pursuant to s198(6) of the Migration Act 1958 (Cth). The Court agreed with the conclusion of the trial judge that as a matter of ordinary language, the proposition advanced on behalf of the mother was not a plausible interpretation of the words “reasonably practicable” in s198(6). It was implicit in the submissions on behalf of the mother that in the event that she was unsuccessful on the first issue, it would be unnecessary for the Court to consider the second issue. The Court ordered that the appeal be dismissed and that there be no order as to costs of and incidental to the appeal. Gardner; re BWV [2003] VSC 173 (29 May 2003)On 28 February 2003, the Victorian Civil and Administrative Tribunal appointed the Public Advocate (plaintiff) to be a limited guardian of BWV, a woman aged 68 who suffered from dementia. BWV had not appeared to be conscious for approximately three years and required full nursing care. There was no prospect of any recovery or improvement of any kind in BWV’s condition. In these circumstances, the plaintiff sought declarations from the Court that:
The significance of the distinction between “medical treatment” and “palliative care” revolved around the provisions of ss3, 4 and 5B of the Medical Treatment Act 1988 (Vic), which allow a guardian, on behalf of a patient, to refuse medical treatment, but not to refuse palliative care. The Public Advocate, on behalf of BWV, intended to refuse further medical treatment in the form of the provision of nutrition and hydration via the PEG which would result in her death within one to four weeks of the withdrawal of such nutrition and hydration. Morris J considered whether the use of a PEG for artificial nutrition and hydration was a “medical” procedure. His Honour commented that artificial nutrition and hydration involved protocols, skills and care which draw from and depend upon medical knowledge. It required careful choice of and preparation of materials to be introduced into the body, close consideration to dosage rates, measures to prevent infection and regular cleaning of conduits. Morris J concluded that those are not matters of common knowledge and found that the use of a PEG for artificial nutrition and hydration, or any form of artificial feeding was a “medical” procedure. His Honour went on to state that the expression “palliative care” means care, not to treat or cure a patient, but to alleviate pain or suffering when a patient is dying. He found that the administration of artificial nutrition and hydration via a PEG could not be regarded as palliative care as such a procedure is, in essence, a procedure to sustain life. His Honour consequently made the declarations sought by the Public Advocate. Cattanach v Melchior [2003] HCA 16 (16 July 2003)In this matter the issue before the High Court was: if, in consequence of medical negligence, a couple become the parents of an unintended child, can a court, in an award of damages, require the doctor and health authority to bear the cost of rearing the child? In 1991 Mr and Mrs Melchior, who then had 2 children, decided that they did not wish to conceive again. Mrs Melchior was referred to Dr Cattanach, a specialist obstetrician and gynaecologist, who recommended, and subsequently performed, a tubal ligation. Mrs Melchior had informed Dr Cattanach that her right ovary and right fallopian tube had been removed when she underwent an appendectomy as a 15 year old. Dr Cattanach’s observations during the sterilisation procedure were consistent with that history. He attached a clip only to the left fallopian tube. However, in 1997, Mrs Melchior gave birth to a healthy son. The Supreme Court of Queensland found that Dr Cattanach was negligent. The State of Queensland, as the operator of the hospital where the operation was performed, admitted it was vicariously liable. The finding of negligence was based upon a conclusion that Dr Cattanach had too readily and uncritically accepted his patient's assertion that her right fallopian tube had been removed, that he should have advised her to have that specifically investigated, and that he should have warned her that, if she was wrong, there was a risk that she might conceive. (The Court found the doctor was not negligent in failing to observe her right fallopian tube at the time of the sterilisation procedure. It was obscured by adhesions from the earlier operation.) The award of damages had three components. The first was an award to Mrs Melchior of $103,672.39 consisting of damages for her pain and suffering in respect of the pregnancy and birth, the effect on her health, lost earning capacity (past and future), and various expenses including hospital and medical expenses and the cost of the care she might need. The second was an award to Mr Melchior of $3,000 for loss of consortium for domestic disadvantages suffered by a husband in consequence of the impaired health or bodily condition of his wife. The third was an award to Mr and Mrs Melchior for $105,249.33 for the past and future costs associated with raising and maintaining their child until the age of 18. No appeal was taken in respect of the first two categories of damages. The third was appealed unsuccessfully to the Queensland Court of Appeal and then appealed, by special leave, to the High Court. The appellants submitted to the High Court that there can be no award in damages for the costs or rearing a healthy child. This was because the birth of a healthy child is not a legal ‘harm’ for which damages can be recovered. Further, and in the alternative, any damages should be offset by the benefits to the parents of the arrival of the healthy child. The High Court dismissed the appeal by a majority of four (McHugh, Gummow, Kirby and Callinan JJ) to three (Gleeson CJ, Hayne and Heydon JJ). The majority held that ordinary principles of tort liability entitled Mr and Mrs Melchior, as victims of Dr Cattanach’s negligence, to recover from the appellants all aspects of their harm that were reasonably foreseeable and not too remote. That would include a component in the damages awarded for the costs of child rearing. It was further held that that component should not be offset by an allowance for the benefits enjoyed by Mr and Mrs Melchior from the birth of the child. In his dissenting judgment Gleeson CJ stated that the claim was not a claim for financial loss resulting from personal injury to a plaintiff or to their property but was a claim for recovery of pure economic loss arising out of the creation of the parent-child relationship. That relationship was the immediate cause of the anticipated expenditure that Mr and Mrs Melchior sought to recover. If they suffered actionable damage it was because of the creation of that relationship and the responsibilities entailed. His Honour:
Further, Gleeson CJ stated the liability sought to be imposed was indeterminate, it was difficult to relate to rules of common law and statute and it was based upon a concept of financial harm that was imprecise. His Honour noted that the accepted approach is that the law should develop novel categories of negligence incrementally and by analogy with established categories and “the recognition of the present claim goes beyond that, and is unwarranted”. 2.2 Legislative DevelopmentsAge Discrimination Bill 2003The Age Discrimination Bill 2003 (Bill) was introduced into the House of Representatives on 26 June 2003. The Bill makes age discrimination unlawful in key areas of public life including employment, education, access to goods and services, and the administration of Commonwealth laws and programs. The Bill contains a number of exemptions and exceptions including youth wages, inherent requirements of the job, positive discrimination, superannuation and credit, pensions, allowances and benefits, acts done in compliance with specified Commonwealth laws, with State and Territory laws, and acts done in compliance with awards and agreements. The Bill differs from other Commonwealth anti-discrimination legislation in two main respects, firstly, the breadth of the exemptions and exceptions and, secondly, it contains a dominant reason test. Under the Disability Discrimination Act 1992 (Cth) (‘DDA’), Racial Discrimination Act 1975 (Cth) (‘RDA’) and Sex Discrimination Act 1984 (Cth) (‘SDA’) if an act is done for two or more reasons and a discriminatory ground is one of those reasons, then the act is taken to be done for the discriminatory reason whether or not it is the dominant or substantial reason for doing the act. In practice, this means that to substantiate a complaint a person only needs to show that a ground of discrimination, for example their race, sex or disability, was a reason for the less favourable treatment they received. The Bill departs from the standard practice in Commonwealth anti-discrimination law and introduces a dominant reason test. A copy of the Bill
and the Explanatory Memorandum can be found at the following website: http://www.ag.gov.au/www/civiljusticeHome.nsf/Alldocs/576854788F78E237CA256B8800802574? The development of the Bill followed consultations carried out by the Government in 2002 and 2003 including the establishment of the Core Consultative Group of which the Human Rights and Equal Opportunity Commission was a part. In January 2003, the Government released for public comment its Information Paper: Proposals for Commonwealth Age Discrimination Legislation and the Commission provided its detailed response to that Information Paper on 12 February 2003: http://www.humanrights.gov.au/legal/age_discrimination_legislation.html The Commission has called for the introduction of Commonwealth age discrimination legislation for some time. In May 2000, it produced its report Age Matters: a report on age discrimination, which recommended the enactment of comprehensive Federal age discrimination legislation and the review and amendment of a number of Commonwealth laws that contained age discriminatory provisions. Recommendations to this effect were also contained in reports to Parliament on age discrimination complaints in 1996 and 1997. A copy of the Age Matters report can be found at: http://www.humanrights.gov.au/human_rights/older_australians/age_matters.html Australian Human Rights Commission Legislation Bill 2003Readers will recall from the last edition of the Bulletin that this Bill was introduced into the Federal Parliament on 27 March 2003 and its provisions were referred to the Senate Legal and Constitutional Committee. The Commission’s submission to that Committee may be accessed at: http://www.humanrights.gov.au/ahrc/submission.html The Committee’s report may be accessed at: http://www.aph.gov.au/senate/committee/legcon_ctte/reports/index.htm The bill passed the House of Representatives on 27 June 2003 and was introduced into the Senate on 11 August 2003. Australian Security Intelligence Organisation Legislation Amendment Act 2003This act was passed by the Senate on 25 June 2003, with an assent date of 22 July 2003. The Commission’s submission to the Joint Parliamentary Committee on ASIO, ASIS and DSD (which considered an early version of the Bill which preceded the act) may be found at: http://www.humanrights.gov.au/human_rights/terrorism_sub/asio_asis_dsd.html A statement released by the Commission shortly after the bill passed the Senate may be found at: http://www.humanrights.gov.au/media_releases/2003/35_03.html Migration Duration of Detention Bill 2003This Bill passed the House of Representatives on 26 June 2003, was introduced into the Senate on 11 August 2003 and is the subject of a number of proposed Government amendments. If passed with those proposed amendments, the Bill would oust the jurisdiction of Courts to order the interlocutory release of the following classes of people from immigration detention:
The Federal Court’s ability to make such orders was recently affirmed by the Full Federal Court in Minister for Immigration and Multicultural and Indigenous Affairs v VFAD of 2002 (2002) ALR 111. The Commission intervened in that case. There has been some concern expressed that the Bill may also override the Full Federal Court’s decision in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 197 ALR 241 (see the comments made by Mr Duncan Kerr MP during the second reading debate on the bill on 26 June 2003 at Hansard 17795). 3. Selected International Human Rights jurisprudence3.1 United Nations Human Rights CommitteeCarpo et al v Philippines, Communication No. 1077/2002, U.N. Doc. CCPR/C/77/D/1077/2002 (15 May 2003)Prior to 1987, the death penalty existed in the Philippine legal system with numerous crimes punishable by death, including murder. In February 1987, a new Constitution took effect which abolished the death penalty. However, in December 1993, the Philippines Congress reintroduced the death penalty by electrocution in respect of “certain heinous crimes” including murder in various circumstances. In January 1998, the authors were convicted of multiple murder and attempted murder and sentenced to death. They argued that re-imposition of the death penalty and its application to them was inconsistent with the first sentence of article 6(2) of the International Covenant on Civil and Political rights (‘ICCPR’) [in countries which have not abolished the death penalty, the sentence of death may only be imposed for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the Covenant]. Further to this, they argued that as “murder” was not punishable by death in the Philippines between February 1987 and December 1993, it could not constitute a “most serious crime” after its reintroduction when the offence of murder remained otherwise wholly unchanged in terms of its substantive definition. The Committee noted that the offence of murder in the Philippines entailed a broad definition, requiring simply the killing of another individual. In the present case, the Committee observed that the Supreme Court considered the case to be governed by article 48 of the Revised Penal Code according to which, if a single act constitutes at once two crimes, the maximum penalty for the more serious crime must be applied. Thus, in this case, the maximum penalty for murder – the death penalty – was imposed automatically. The Committee found that automatic imposition of the death penalty by virtue of article 48 violated their rights under article 6(1) of the ICCPR. The Committee referred to its previous jurisprudence that mandatory imposition of the death penalty constitutes arbitrary deprivation of life in violation of article 6(1) in circumstances where the death penalty is imposed without regard being paid to the defendant’s personal circumstances or the circumstances of the particular offence. In light of the above finding, the Committee did not need to address the authors’ remaining claims which all concerned the imposition of capital punishment. Evans v Trinidad and Tobago, Communication No. 908/2000, U.N. Doc. CCPR/C/77/D/908/2000 (5 May 2003)The author was charged with and ultimately convicted of murder and sentenced to life imprisonment. He claimed to be victim of a number of violations. The Committee found that a delay of 2 years and 3 months between the author’s arrest and his trial which remained unexplained by the State party constituted a violation of the author’s right under article 9(3) of the ICCPR to be tried within a reasonable time or to release. The author also complained of a delay of five years and nine months between conviction and the dismissal of his appeal by the Court of Appeal. The Committee found a violation of articles 14(3)(c) [right to be tried without undue delay] and (5) [right to a conviction and sentence being reviewed by a higher tribunal according to law], recalling its jurisprudence that the rights contained in article 14(3)(c) and (5), when read together, conferred a right to review of a decision at trial without delay. As to the claim that the conditions of detention to which the author was subjected during his period on death row violated article 7 [prohibition on torture and cruel, inhuman or degrading treatment or punishment] and 10(1) [all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person], the Committee noted that the author was detained in solitary confinement for a period of five years in a cell measuring 6 by 9 feet, with no sanitation except for a slop pail, no natural light, only being allowed out of his cell once or twice a week during which he was restrained in handcuffs and with wholly inadequate food that did not take into account his dietary requirements. The Committee found that when taken together, those (uncontested) conditions of detention violated article 10(1). Gelazauskas v Lithuania, Communication No. 836/1998, U.N. Doc. CCPR/C/77/D/836/1998 (2 June 2003)The author was sentenced to 13 years imprisonment for murder in 1994. The author alleged a violation of article 14(5) of the ICCPR on the grounds that he had no avenues to pursue an appeal against the judgement. The Committee noted the State party’s contention that the author had a right to address the Chairperson of the Supreme Court of Lithuania, the Prosecutor-General and their deputies with a request to submit a supervisory protest and that this constituted an extraordinary remedy (dependent upon the exercise of those discretionary powers). The Committee recalled its previous jurisprudence that article 14(5) implies the right to a review of law and facts by a higher tribunal. The Committee considered that the request of a “supervisory protest” did not constitute a right to have one’s sentence and conviction reviewed by a higher tribunal under article 14(5). 3.2 European Court of Human Rights (ECHR)Karner v. Austria (40016/98) (24 July 2003) - Articles 8 and 14 of the ECHR - “sexual orientation”Background From 1989 the applicant, Mr Siegmund Karner, lived with Mr W, with whom he had a homosexual relationship, in a flat rented by W in Vienna. They shared the outgoings on the flat. W died in 1994, after contracting the AIDS virus. He had designated the applicant as his heir. In 1995 Mr W’s landlord brought proceedings in the District Court against the applicant for termination of the tenancy. The Court dismissed the claim. It considered that s14(3) of the Rent Act, which provided that family members had a right to succeed to a tenancy, was also applicable to a homosexual relationship. In December 1996 the Supreme Court quashed the lower court's decision and terminated the lease. It found that the notion of “life companion” in s14(3) of the Rent Act was to be interpreted as at the time it was enacted, and the legislature's intention in 1974 was not to include persons of the same sex. The applicant claimed to have been a victim of discrimination on the ground of his sexuality in that the Supreme Court, in its decision, had denied him the status of “life companion” of the late Mr W, within the meaning of s 14 of the Rent Act, thereby preventing him from succeeding W's tenancy. He invoked Articles 14 and 8 of the European Convention on Human Rights. Article 14 states:
Article 8 states:
On 26 September 2000 the applicant died. The ECHR decided to hear the case as it considered that the subject matter of the application – the difference in treatment of homosexual people as regards succession to tenancies under Austrian law – involved an important question of general interest not only for Austria but also for other Member States of the Convention. Decision The Government in its submission had accepted that the applicant had been treated differently on the ground of his sexual orientation. However, it said the difference in treatment had an objective and reasonable justification as the aim of the relevant provision of the Rent Act had been the protection of the traditional family. The ECHR stated: . . for the purposes of Article 14, a difference in treatment is discriminatory if it has no objective and reasonable justification, that is, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. . . Just like differences based on sex, differences based on sexual orientation require particularly serious reasons by way of justification The ECHR found a violation of Article 14, taken together with Article 8. It stated: The Court can accept that protection of the family in the traditional sense is, in principle, a weighty and legitimate reason which might justify a difference in treatment (see Mata Estevez v. Spain (dec.), no. 56501/00, 10 May 2001, unreported). It remains to be ascertained whether, in the circumstances of the case, the principle of proportionality has been respected. The aim of protecting the family in the traditional sense is rather abstract and a broad variety of concrete measures may be used to implement it. In cases in which the margin of appreciation afforded to member States is narrow, as the position where there is a difference in treatment based on sex or sexual orientation, the principle of proportionality does not merely require that the measure chosen is in principle suited for realising the aim sought. It must also be shown that it was necessary to exclude persons living in a homosexual relationship from the scope of application of s 14 of the Rent Act in order to achieve that aim. The Court cannot see that the Government has advanced any arguments that would allow of such a conclusion. Finucane v. the United Kingdom (29178/95) (1 July 2003) – Article 2 of the ECHR– “Right to life to be protected by law”Background On 12 February 1989 the applicant’s husband, solicitor Patrick Finucane, was shot dead in front of her and their three children by two masked men who broke into their Belfast home. Responsibility was claimed by an illegal paramilitary group, the Ulster Freedom Fighters (“UFF”). Mr Finucane had represented clients from both sides of the conflict in Northern Ireland and had been involved in high-profile cases. According to Mrs Finucane, her husband had received death threats, via his clients, from officers of the Royal Ulster Constabulary ("RUC"). After the shooting the RUC began an investigation and many suspected members of the UFF were detained and interviewed. A further suspect, William Stobie, was arrested and questioned but it was decided that there was insufficient evidence to prosecute him. On 14 September 1989, John Stevens, a senior police officer from England, was appointed to investigate allegations of collusion between members of security forces and loyalist paramilitaries. No charges were laid against members of the RUC but Brian Nelson, who had worked as an undercover agent providing information to British military intelligence and had become the chief intelligence officer of the Ulster Defence Association (UDA) (an illegal paramilitary group which directed the activities of the UFF), was arrested. At his trial the British authorities claimed that he had got out of hand and had become personally involved in loyalist murder plots. He was sentenced to imprisonment for a term of ten years. In prison he allegedly admitted that he had targeted Mr Finucane and, in his capacity as double agent, had informed British Army handlers of this at the time. He had also allegedly passed a photo of Mr Finucane to the UDA before he was killed. A second Stevens inquiry followed. According to the Government, he inquired into the alleged involvement of Mr Nelson and members of the Army in Mr Finucane’s death. Mrs Finucane alleged that no one contacted her or her lawyers regarding the death threats she claimed were made prior to her husband’s murder. On 17 February 1995 the Director of Public Prosecutions (“DPP”) decided that there was insufficient evidence to prosecute any person. In 1999 Mr Stevens was appointed to conduct an independent investigation into Mr Finucane’s murder. On 17 April 2003 he submitted his report to the DPP. An overview was made public: in that document, it was said that there had been collusion and the murder could have been prevented. In the meantime Mr Stobie had been charged with Mr Finucane’s murder but acquitted for lack of evidence. Mr Stobie was shot dead shortly after. The applicant complained that there was no effective investigation into the death of her husband which had occurred in circumstances giving rise to suspicions of collusion of the security forces with his killers. She invoked Article 2 of the Convention which provides as relevant:
The Court’s assessment The police investigation into the murder had been started immediately and had involved the necessary steps to secure evidence. However, it had been conducted by officers who were part of the police force suspected by the applicant of making death threats against her husband. There had therefore been a lack of independence, which raised serious doubts as to the thoroughness or effectiveness with which the possibility of collusion had been pursued. The inquest had not involved any inquiry into the allegations of collusion and the applicant had been refused permission to make a statement about the alleged threats to her husband. The inquest had therefore failed to address serious and legitimate concerns and could not be regarded as having constituted an effective investigation. Of the three Stevens inquiries, it was not apparent that the first two had been concerned with investigating the death of the applicant’s husband with a view to bringing a prosecution and, in any event, the reports had not been made public, so the necessary elements of public scrutiny and involvement of the family were missing. While the third inquiry was specifically concerned with the murder, the Government admitted that, taking place some 10 years after the event, it could not be regarded as having been carried out promptly and expeditiously. Moreover, it was not apparent to what extent the report itself would be made public. The DPP did not give reasons for his decisions not to prosecute and there was no possibility in Northern Ireland to challenge such decisions by way of judicial review. No information had been provided to reassure the applicant and the public that the rule of law had been respected. The Court concluded that there had been a failure to provide a prompt and effective investigation into the allegations of collusion by security personnel and that that amounted to a violation of Article 2. See also the discussion in section 5 below of the decisions of the ECHR in Y.F. v. Turkey (22 July 2003) and Perry v. the United Kingdom (17 July 2003), both relating to the right to “private life” (article 8).3.3 United States of AmericaLawrence et al v Texas (02-102) – Constitutional validity of state criminal sodomy lawsPolice in Texas entered a private home in response to a reported weapons disturbance. There they saw Mr Lawrence and Mr Garner engaging in a private, consensual sexual act. Mr Lawrence and Mr Garner were arrested and convicted in violation of a Texas statute forbidding two people of the same sex from engaging in intimate sexual conduct. The State Court of Appeals confirmed the conviction, and held that the statute was not unconstitutional under the Due Process Clause of the Fourteenth Amendment. In its decision in June, the Supreme Court of the United States considered the earlier decision of Bowers v Hardwick, 478 U.S. 186; found the decision in Bowers to be incorrect; and overruled it. The Supreme Court found that the liberty protected by the Constitution allows people the right to enter into the relationships of their choice and retain their dignity as free people, and that the Texas statute furthered no legitimate state interest which could justify its intrusion into the individual’s personal and private life. The judgement of the Court of Appeals in Texas was therefore reversed, and the case remanded for further proceedings not inconsistent with the opinion of the Supreme Court. Grutter v Bollinger et al (01-241) - university affirmative action admissions policyThe University of Michigan Law School followed an admissions policy that sought to achieve diversity in the student population. Prospective students were assessed on academic ability coupled with a flexible assessment of their talents, experiences and potential. The policy reaffirmed the Law School’s commitment to diversity with special reference to the inclusion of African-American, Hispanic, and Native-American students, who otherwise might not be represented in the student body in meaningful numbers. By enrolling a “critical mass” of underrepresented minority students, the policy sought to ensure their ability to contribute to the Law School’s character and to the legal profession. The applicant in this matter was a white student who claimed she was discriminated against on the basis of her race when she failed to gain admission to the Law School. The US Supreme Court held that the Law School’s policy did not establish quotas for members of certain racial or ethnic groups or put them on separate admissions tracks. It found that there was no policy, either de jure or de facto, of automatic acceptance or rejection based on any single “soft” variable. Rather, the Law School engaged in a highly individualised, holistic review of each student’s application, giving serious consideration to all the ways in which a student might contribute to a diverse educational environment, and race or ethnicity was potentially considered as a “plus” in a particular student’s case. The Supreme Court held that the Law School’s use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body is not discrimination on the basis of race, and is not prohibited by the Equal Protection Clause, Title VI of the Civil Rights Act 1964, and 42 U.S.C 1981. 3.4 United KingdomRegina v Her Majesty’s Attorney General ex parte Rusbridger and another [2003] UKHL 38 - Human Rights Act 1998 (UK), treason and freedom of speechThis case, before the House of Lords, raised the question of whether the editor of a newspaper, who conducts a press campaign advocating a republican form of government, may be guilty of an offence under section 3 of the Treason Act 1848 (UK) (‘Treason Act’). Section 3 of the Treason Act provides that is a criminal offence to contrive generally or to contrive by publishing material, to deprive the Sovereign of the Crown; levy war against the Sovereign; or to encourage foreigners to invade the United Kingdom. This provision had as its prime target editors of newspapers and this was the main use made of it in prosecutions in Victorian times. No prosecutions have, however, been brought under it since 1883. The editor of The Guardian newspaper, Mr Rusbridger, proposed to publish a series of articles advocating the move to a republic in the UK. He wrote to the Attorney General and invited the Attorney General to announce an intention to disapply the Treason Act in respect of all published advocacy of the deposition of the monarchy other than by criminal violence. In the alternative, he suggested that the Attorney General might seek a declaration as to the proper interpretation of section 3 of the Treason Act in the light of the Human Rights Act 1998 (UK).The convention right at stake under the Human Rights Act was Article 10, freedom of expression. The Attorney General declined to give an assurance regarding whether or not a prosecution or other action would be taken, however no prosecutions were brought against the Guardian. The Guardian then commenced a claim for:
The Administrative Court sitting as a Divisional Court held that there was no decision made by the Attorney General which was susceptible to challenge. The Administrative Court refused The Guardian's application for permission to pursue their claim insofar as it was properly to be characterised as a judicial review claim and, in the alternative, struck out the claim. Permission to appeal was refused. The Guardian then renewed its application before the Court of Appeal. The Court of Appeal formally refused the application for permission to appeal against the Administrative Court's decision to refuse to grant permission for the judicial review claim to proceed. However, the Court of Appeal held that The Guardian should be allowed to proceed with both their claim for a declaration on the proper construction of section 3 of the Treason Act and their alternative claim for a declaration of incompatibility. The Guardian's claim as amended was ordered to be remitted to the Administrative Court. The House of Lords granted the Attorney General leave to appeal. The House of Lords noted the general principle that the seeking of a declaration in a civil case about the lawfulness of future conduct will only be permitted in truly exceptional cases. The House of Lords concluded that the present case may fall within that exceptional category. However, a number of their Lordship noted that it is not the function of the courts to keep the statute book up to date; that responsibility lies with Parliament and the executive; and as long ago as 1977 the Law Commission recommended reform of the law of treason and allied offences. Therefore the appeal was allowed; the decision of the Court of Appeal quashed and the litigation dismissed. Lord Steyn said in his majority judgement:
Regina v Secretary of State for the Home Department and another ex parte Anufrijeva [2003] UKHL 36 - Right of an asylum seeker to social security – application of the principle of legality to economic rightsThe issue in this appeal to the House of Lords was whether it was lawful for income support paid to Ms Anufrijeva as an asylum seeker to cease in December 1999 (being the date her claim for asylum was “determined” by the Home Office), in circumstances where Ms Anufrijeva did not receive official notice of this purported determination until April 2000. In August 1998 Ms Anufrijeva, then aged 20, arrived at Gatwick Airport with her father and several other members of her family. They were Lithuanians of Russian origin. Her father claimed asylum for himself and other dependent members of the family. Ms Anufrijeva claimed asylum on her own behalf. From September 1998, income support was paid to Ms Anufrijeva under Part VI of the Income Support (General) Regulations 1987 ("the Regulations"), as she was an asylum seeker for purposes of the Regulations. In December 1999, payment was stopped, on the basis that her claim for asylum had been "recorded by the Secretary of State as having been determined", as required by the Regulations, in the following file note:
Based upon the determination (or purported determination) of the appellant's asylum claim in the above file note, her income support ceased. However the “decision” in the file note was not communicated directly to Ms Anufrijeva. Responsibility for resolving her immigration status returned to the immigration officer at Gatwick, who gave her written notice of refusal of leave to enter in April 2000. The appellant unsuccessfully challenged the refusal of her asylum claim before an adjudicator, was refused permission by the Immigration Appeal Tribunal to appeal against that decision and applied unsuccessfully for judicial review of that refusal. She was also refused permission to apply for judicial review of the Home Secretary's refusal of leave to enter. In the present proceedings the appellant sought judicial review of two decisions: the decision to treat her asylum claim as having been refused in November 1999, and the decision to withdraw her income support benefit in December 1999. She was granted leave to appeal to the House of Lords from the Court of Appeal. The House of Lords considered the decision of the Court of Appeal in R v Secretary of the State for the Home Department, Ex p Salem [1999] QB 805. In Salem the Court of Appeal held that for the purposes of the Regulations, Mr Salem ceased to be entitled to income support from the date when his claim for asylum was recorded as determined on an internal file note in the Home Department, even though he had not yet been informed of the determination. In the current case, the House of Lords found that notice of a decision is required before it can have the character of a determination with legal effect, because the individual concerned must be in a position to challenge the decision in the courts if he or she wishes to do so. Lord Steyn quoted Lord Hoffmann's explanation of the principle of legality in R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, at p 131 :
Lord Steyn noted:
The House of Lords held by a four to one majority that Salem was wrongly decided, and that Ms Anufrijeva’s appeal should be allowed. 4. Australian discrimination law
Sex Discrimination Act 1984 (Cth)Mayer v Australian Nuclear Science and Technology Organisation [2003] FMCA 209The applicant in this matter alleged that her employer had unlawfully discriminated against her on the basis of her sex, pregnancy and family responsibilities. She also made a claim of breach of contract. Ms Mayer had commenced employment with the respondent on 4 January 1999 pursuant to a three-year contract and held the position of business development manager. She informed her employer in or around June 2001that she wanted to take 12 months maternity leave. She sought an extension of her contract for two years but her contract was only extended for one year until 3 January 2003. Ms Mayer stated that other professional officers on fixed term contracts were offered contract extensions of two years or more. Further, when Ms Mayer raised the possibility of working part time when she returned to work, she was informed that her position was only available to her on a full time basis. Ms Mayer alleged she had been constructively dismissed from her employment due to the requirement that she work full time. The discrimination alleged can be summarised as follows:
Driver FM found that the respondent had directly discriminated against the applicant in the refusal of a contract extension for more than one year in breach of ss7(1) and 14(2)(a) of the SDA. His Honour found that the applicant had suffered a detriment, and that she had been treated less favourably than other contract employees of the respondent. The proper comparators were other fixed term contract employees of the respondent who had their contracts extended. Driver FM stated that although there was no uniform approach to the renewal of fixed term contracts, “the respondent’s practice gave rise to a reasonable expectation that, provided performance was satisfactory, the contract would be renewed for a period no shorter than the initial contract.” His Honour was also of the view that the applicant’s pregnancy was a factor in the consideration of the length of the renewal of her contract. In relation to allegation (b), Driver FM found that the refusal of part time work constituted discrimination in terms of s5(2) of the SDA but not s7A. His Honour stated that he “needed no evidence to establish that women per se are disadvantaged by a requirement that they work full time”, as “women are more likely than men to require at least some periods of part time work during their careers, and in particular a period of part time work after maternity leave, in order to meet family responsibilities.” His Honour cited his earlier decision in Escobar v Rainbow Printing Pty Ltd (No 2) [2002] FMCA 122 and Commissioner Evatt's decision in Hickie v Hunt & Hunt, 7 March 1998, Unreported, HREOC in support of that proposition. Driver FM further found that the respondent’s conduct breached s14(2)(c) of the SDA as the applicant was constructively dismissed by reason of her sex. He stated that Ms Mayer had abandoned her employment “under duress”, and that the respondent’s refusal to provide Ms Mayer with any part time work was unreasonable. His Honour did not find any breach of contract as outlined in (d). Following principles of tort law in relation to damages, Driver FM found that the applicant had suffered economic loss in the sum of $30,695. He awarded Ms Mayer $5,000 for non-economic loss, noting that as a result of the refusal of part time work she suffered depression which was treated by a course of anti-depressants. Interest was ordered at the rate of 10.5%, and the total damages awarded were $39,294. The respondent agreed to provide the applicant with an apology. Racial Discrimination Act 1975 (Cth)Toben v Jones [2003] FCAFC 137This was an unsuccessful appeal to the Full Federal Court (Carr, Kiefel and Allsop JJ) from a decision of Branson J, in which her Honour declared that Frederick Toben had engaged in racially offensive behaviour, contrary to s.18C of the Racial Discrimination Act 1975 (Cth) (RDA). The appellant had published a document headed "About the Adelaide Institute" on the World Wide Web, which was found to have imputed that there was serious doubt that the Holocaust occurred, that it was unlikely Auschwitz contained homicidal gas chambers, that Jewish people who challenged Holocaust denial were of limited intelligence, and that some Jewish people exaggerated the number of Jews killed for improper purposes and financial gain. Branson J found that the document was reasonably likely to offend to Jewish people. Her Honour had also granted injunctions requiring the appellant to remove the document from any web site controlled by him or the Adelaide Institute, and not to publish or re-publish the document or any other substantially similar material. The appeal focused on three issues. First, the appellant submitted that s18C of the RDA should be read down to encompass only acts done because of racial hatred. The appellant raised two arguments in support of this submission, both of which were rejected. Their Honours delivered separate, yet very similar, judgments:
Second, the appellant conceded that the publication was an act which had been done in public and was reasonably likely, in all the circumstances, to offend and insult Australian Jews, but submitted that Branson J had erred in law in holding that the publication had been done “because of . . . the ethnic origin” of the group, within the meaning of s.18C(1)(b) of the RDA. Branson J held that the words, “because of”, require an objective assessment of whether “anything suggests race as a factor in the respondent’s decision to publish the work”, taking into account all the circumstances of the case. The Full Court held that Branson J’s interpretation of the words, “because of”, was correct and consistent with earlier authority such as Creek v Cairns Post (2001) 112 FCR 352, Jones v Scully [2002] FCA 1080 and Hagan v Trustees of the Toowoomba Sports Ground Trust (2001) 105 FCR 56. The Full Court examined the statements made by the appellant in the document, referring to the gravity of the offence likely to be caused by the statements and the apparent relevance of the statement in the context in which they appeared, and held that it was open to Branson J to conclude that the publication was done “because of” the Jewish origins of the people in the groups. Finally, the appellant submitted that the act of publication was done reasonably and in good faith in the course of a discussion or debate made or held for any “genuine academic purpose” or “genuine purpose in the public interest” under s.18D(b) of the RDA. Branson J’s view that the appellant bore the onus of proof in establishing an exemption was not challenged by the appellant. The appellant had not adduced any evidence specifically in relation to the exemption, but relied upon the published document. The Full Court upheld Branson J’s decision that the contents of the document did not establish on the balance of probabilities that publication by the respondent was done reasonably or in good faith, as the terms of the document were deliberately provocative and inflammatory and no attempt had been made by the appellant at restraint. Allsop J also held that Branson J was entitled to look at all the material before her and not simply the published document in forming a view about this question. Disability Discrimination Act 1992 (Cth)McBride v State of Victoria (No.1) [2003] FMCA 285The applicant in this matter alleged numerous instances of discrimination during her course of employment by the State of Victoria as a prison officer contrary to the Disability Discrimination Act 1992 (Cth) (“DDA”). During the course of her employment she suffered a number of injuries, two of which occurred at work. The Applicant claimed that as a result of those injuries she suffered myofascial pain syndrome and/or fybromyalgia which constituted a disability for the purposes of the DDA. Her complaints related to the types of duties she was given after sustaining those injuries, and the attitude of her supervisors about her need for time off work and modified duties. McInnis FM accepted that the test for determining whether less favourable treatment occurred because of a person’s disability was the “but for test” referred to in IW v City of Perth (1997) 191 CLR 1 at 32 per Toohey J and at 63-4 per Kirby J. His Honour dismissed four of the applicant’s five complaints, finding that the acts complained of did not constitute discrimination. His Honour was of the view that the issue of whether the respondent had contravened the DDA “should be viewed in the context of the requirements placed upon the employment under the Accident Compensation Act 1985 (Vic). His Honour upheld the applicant’s complaint in relation to a comment made to her by her supervisor when she complained that she could not perform some of the duties she had been rostered to do. McInnis FM found that the uttering of the words “What the fuck can you do then?” in the circumstances claimed constituted “a denial of the applicant’s quiet enjoyment of employment which I find to be a benefit associated with the employment for the purposes of s15(2)(b) of the DDA”. The respondent was order to pay the applicant $5000 damages for the “significant hurt and upset” it caused the applicant. Practice and ProcedureIngui v Ostara & Pretty [2003] FMCA 132In this matter, the respondents sought costs following the filing of a notice of discontinuance by the applicant. Brown FM noted the ordinary rule that costs follow the event where an applicant has discontinued proceedings and suggested that the position ‘may be somewhat different in proceedings which relate to Human Rights legislation’. He cited the views of Driver FM in Low v Australian Tax Office [2000] FMCA 6 at 11 to the effect that the Court should be slow to award costs at an early stage of Human Rights proceedings as it may deter applicants under what is remedial legislation. Brown FM noted, however, that Driver FM did make costs orders in NAGY v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FMCA 189, where the applicant discontinued his application at a stage where the solicitors for the Minister had gone to the expense of preparing a case book for the hearing of the matter and the applicant himself had had the opportunity of obtaining legal advice through a scheme administered by the Department of Immigration. In the case before the Court, Brown FM noted that the applicant had been represented throughout the proceedings and the respondents were private individuals funding their own litigation who had indicated clearly throughout the proceedings that they contested the allegations made against them. There was not a matter of legal principle at stake. In those circumstances it was reasonable that the applicant should ‘make some contribution to the costs incurred by the respondents in the proceedings’. The parties were therefore invited to make submissions to the Court on the question of the quantum of costs. Jandruwanda v University of South Australia [2003] FMCA 233This was an application for the summary dismissal by the University of South Australia of proceedings against them brought by Ms Jennifer Jandruwanda alleging breaches of the Racial Discrimination Act 1975 (Cth) (“the RDA”). The application for summary dismissal of the claim was made on the ground that no reasonable cause of action had been pleaded. Raphael FM stated that he was “mindful of the strictures against lightly making a decision to dismiss an application on grounds that no reasonable cause of action is disclosed”, and thus considered the documents presented by the applicant with great care. He was of the view, however, that they did not disclose a reasonable cause of action and that the documents did not show any evidence of racial discrimination. His Honour stated that he did not think it fair that the respondent, which is a public institution, should be required to continue to defend proceedings that had been articulated in the manner articulated by Ms Jandruwanda. He therefore ordered that the application be dismissed. 5. Australian and International Privacy Law5.1 Australian Privacy Law DevelopmentsGrosse v Purvis [2003] QDC 151 (16 June 2003)The plaintiff complained of having being ‘stalked’ by the defendant over a number of years which had caused her to develop Post Traumatic Stress Disorder. She asserted, amongst other things, that the defendant’s behaviour gave rise to an actionable civil claim for invasion of privacy. Despite the fact that no case in Australia had previously given express recognition to a right of action for invasion of privacy, Skoien J of the Queensland District Court found that there was such an actionable right. His Honour described this as a ‘bold’ but ‘logical and desirable step’, citing the individual judgments of the members of the High Court in Australian Broadcasting Corporation v Lenah Game Meats (2002) 208 CLR 199 as establishing various statements of principle upon which such a cause of action was to be based. Skoien J held that the essential elements of the cause of action were:
However, his Honour noted that it was not his task or intent ‘to state the limits of the cause of action nor any special defences other than is necessary for the purposes of this case’. He further stated that it was unnecessary to decide whether a defendant would be liable for negligent acts as opposed to willed acts as the conduct of the defendant constituted willed acts in the present case. His Honour suggested that acts such as those specified in the offence of ‘unlawful stalking’ under the Criminal Code (Qld) (many of which were committed by the defendant in the present case) would be actionable behaviour. This includes:
Skoien J further found that the suffering of ‘embarrassment, hurt, distress and, a fortiori, PTSD’ would be actionable detriment as would ‘enforced changes of lifestyle caused by the intrusion’. He found that the plaintiff had suffered such detriment. His Honour suggested that a defence of public interest should be available, but found that the concept was not involved in the case before the Court. He awarded $178,000 in damages to the plaintiff. EG v Commissioner of Police, New South Wales Police Service [2003] NSWADT 150Mr EG brought proceedings before the NSW Administrative Decisions Tribunal (‘the ADT’) under the Privacy and Personal Information Protection Act 1998 (NSW) (‘the PIPP Act’). He claimed that Commissioner of Police, New South Wales Police Service (‘the agency’) had disclosed personal information in contravention of the Information Protection Principles (‘the IPPs’) set out in Part 2 of the PIPP Act. The alleged disclosure was by way of a letter sent by the agency to the Legal Practitioners Admission Board (‘the LPAB’) in the following terms (emphasis in original):
The only issue before the ADT was whether or not the information disclosed in the letter was ‘personal information’ as defined in s 4 of the PIPP Act which states:
The agency argued that the letter contained no personal information by reason of two newspaper articles from the Daily Telegraph which referred to EG. The first article stated: ‘A decorated police officer, suspended for almost a year after complaints were made against him claims he is being punished for doing his job properly… [EG] has suspended from duty on June 30 last year because of a “lack of confidence” in him…’ The second article stated, in part, that: “[EG] is on suspension with full pay after being threatened by [members of the public]…” The ADT considered each of the three substantive paragraphs of the letter and held: Paragraph One
This was held to be ‘personal information’ as it was information about the applicant, whose identity was apparent from the letter. None of the exemptions applied to it. Paragraph Two
The NSW Privacy Commissioner (‘the Commissioner’) exercised his right of appearance in the proceedings and submitted that information derives significance from both its content and context. The same or reasonably similar information can assume a different significance depending up on the circumstances in which it is collected, used or disclosed. As an example, a name and address in a telephone directory conveys a different meaning to the same name and address held in the file of a child protection agency. In the Commissioner’s submission the raw ‘data’ is the same, but the context makes the data two different pieces of information. In the current context, the data about the applicant in a newspaper article and the date about the applicant in an authorised communication from an employer were two distinct pieces of information. While accepting the Commissioner’s argument that information may have different significance depending upon its context, the ADT held that the legislation must be interpreted according to its plain and ordinary meaning, and the exception in s 4(3)(b) of the PIPP Act was ‘clear and unambiguous’:
Paragraph Three
The ADT held that the paragraph contained a piece of information (that there was information, other than the fact of EG’s suspension, which could impact upon the assessment of his good fame a character) and an opinion (that these ‘issues’ would impact upon that assessment). The exclusion in s 4(3)(b) did not apply because the newspaper article did not state or even suggest that there was other information or ‘issues’ that would impact upon the good fame and character of EG, or that an opinion was held that these ‘issues’ would impact upon the assessment of his good fame and character. 5.2 International Privacy Law Developments –European Court of Human RightsY.F. v. Turkey (24209/94) (22 July 2003) - Article 8 - “private life”On 17 October 1993 Ms F was taken into police custody for four days in Bingöl on suspicion of aiding and abetting an illegal terrorist organisation, namely the PKK (the Kurdish Workers’ Party). On 20 October 1993, following her detention in police custody, Ms F was examined by a doctor, who reported that there were no signs of ill-treatment on her body. On the same day she was taken to a gynaecologist for a further examination. The police requested that the report should indicate whether she had had sexual intercourse while in custody. Despite her refusal, Ms F was forced by the police officers to undergo a gynaecological examination. The police remained on the premises while Ms F was examined behind a curtain. The doctor reported that Ms F had not had any sexual intercourse in the days preceding the examination. In an indictment dated 19 December 1995, the Bingöl Public Prosecutor charged three police officers with, inter alia, violating Ms F’s private life by forcing her to undergo a gynaecological examination. On 16 May 1996 the Bingöl Assize Court acquitted the accused police officers. The court held that the police officers had had no intention of subjecting Ms F to degrading and humiliating treatment when they made her undergo a gynaecological examination, but were trying to protect themselves against a possible accusation of rape. It was claimed the forced examination constituted a breach of Article 8:
The Government denied consent was withheld. The ECHR observed that Article 8 was clearly applicable to these complaints. The complaints concerned a matter of “private life”, which term covers the physical and psychological integrity of a person. The ECHR reiterated in that regard that a person’s body concerns the most intimate aspect of one’s private life. Thus, a compulsory medical intervention, even if it is of minor importance, constitutes an interference with this right. The ECHR noted that Ms F complained to the authorities that she had been forced to undergo a gynaecological examination against her will. It noted that the Government contended that it would not have been possible to perform such an examination without the consent of Ms F, who could have objected to it when she was brought to the doctor’s consulting room. The ECHR considered that, in the circumstances of the present case, Ms F could not be expected to resist submitting to such an examination in view of her vulnerability in the hands of the authorities who exercised full control over her during her detention. There had accordingly been “interference by a public authority” with the right of Ms F to respect for her private life. The interference was not an action “in accordance with the law” and was thus not protected by Article 8.2. Perry v. the United Kingdom (63737/00) (17 July 2003) – Article 8- “private life” In 1997 the applicant was arrested in connection with a series of armed robberies of mini cab drivers. He agreed to attend an identification parade and was released. An important part of the prosecution's case rested on the ability of the witnesses to visually identify the perpetrator. Submitting the applicant to an identification parade was of great importance for the prosecution. As he failed to attend the arranged identification parades, the police decided to arrange a video identification parade. Permission to covertly video the applicant for identification purposes was sought from the Deputy Chief Constable for the West Midlands Police Force under the Home Office Guidelines on the Use of Equipment in Police Surveillance Operations 1984. On 19 November 1997, the applicant was taken from Strangeways Prison (where he was being detained on another matter) to the Bilston Street police station. The prison, and the applicant, had been informed that this was for identification purposes and further interviews concerning the armed robberies. On arrival at the police station, he was asked to participate in an identification parade. He refused. Meanwhile, on his arrival at the police station, he was filmed by the custody suite camera which was kept running at all times and was in an area through which police personnel and other suspects came and went. An engineer had adjusted the camera to ensure that it took clear pictures during his visit. A compilation tape was prepared in which eleven volunteers imitated the actions of the applicant as captured on the covert video. This video was shown to various witnesses of the armed robberies, of whom two positively identified the applicant as involved in the second and fourth robberies. Neither the applicant nor his solicitor were informed that a tape had been made or used for identification parade purposes or given an opportunity to view it prior to its use. At the trial, the applicant's counsel made an application pursuant to s 78 of the Police |