From the bench: landmark human rights cases
Why do I love HREOC? Well, I was there at the birth. I watched the Commission grow and accept new challenges every year. Australians used to be blind to the inequalities of women, to injustice to Aboriginals and other indigenous peoples, to Asian Australians, to gays and other sexual minorities, to people with disabilities and many others. If our eyes have been opened, we should be grateful to HREOC. In a real sense, it has been a conscience of our country: speaking out when others were silent.
The Hon. Justice Michael Kirby AC CMG, Justice of the High Court of Australia
Federal discrimination law in Australia has come a long way since the commencement of the Racial Discrimination Act in 1975.
The field has grown considerably with the passage of the Sex Discrimination Act 1984, the Disability Discrimination Act 1992 and the Age Discrimination Act 2004.
In recent years a number of important cases decided by the courts have set important benchmarks and precedents for the recognition of human rights in Australia.
Interpreting and applying anti-discrimination legislation remains one of the more complex areas of Australian law. However, in the absence of a Bill of Rights, it is also one of the most crucial.
Following are some landmark human rights cases over the last 21 years.
Mabo v Queensland (No.1)
Before the High Court had considered Eddie Mabo’s claim that he had native title over his traditional lands in the Torres Strait, the Queensland Government passed a law extinguishing all native title in Queensland. The High Court found that, on the assumption that Indigenous people did have title to their traditional land, the Queensland law was discriminatory because it took away property rights from Indigenous people and not from anybody else. The High Court later went on to consider whether, under Australian law, Indigenous people did have title to their traditional land – a matter decided in the famous case of Mabo v Queensland (No. 2).
McBain v Victoria (2000)
Dr John McBain, a Melbourne gynaecologist, was prohibited under Victorian law from assisting Ms Lisa Meldrum, a single woman, to conceive using IVF treatment. McBain challenged the Victorian law in the Federal Court and argued that it was inconsistent with the SDA, which prohibits discrimination in the provision of goods and services on the grounds of sex or marital status. Justice Sundberg of the Federal Court agreed. The decision was unsuccessfully challenged in the High Court by the Australian Catholic Bishops Conference.
Hickie v Hunt & Hunt (1998)
Marea Hickie, a contract partner with Sydney law firm Hunt & Hunt, brought a complaint against her employer after her request to work part-time following the birth of her child was refused. She claimed the firm had given away her client base while she was on maternity leave. In a complaint heard by HREOC, Commissioner Evatt found that the law firm had indirectly discriminated against Ms Hickie by requiring her to work full-time in order to maintain her practice. The firm was ordered to pay $95,000 in compensation. The case highlighted the importance of employers putting in place flexible working arrangements.
Maguire v SOCOG (1999)
In the lead-up to the Sydney Olympics, Bruce Maguire lodged a complaint against the organisers for failing to provide its website and ticketing information in a format accessible to people with a vision impairment. In the case heard by HREOC, the website developer confirmed that some parts of the site were not accessible. However, SOCOG argued that correcting the site would cause unjustifiable hardship. Hearing Commissioner William Carter disagreed and ordered SOCOG to upgrade its website prior to the start of the Games and provide ticketing information in Braille. After the Olympics had finished the SOCOG website was found to only be partly compliant and $20,000 damages were awarded.
Scott v Telstra (1995)
Geoffery Scott, who is deaf, complained that Telstra indirectly discriminated against him because it had not provided him with a telephone typewriter (TTY) in the same way it provided standard handsets to other customers. In a case heard by HREOC, Telstra argued that supplying TTYs was not part of its service and that the cost of doing so would cause unjustifiable hardship. Sir Ronald Wilson upheld the complaint. Telstra was directed to provide a TTY to Mr Scott and to all other Australia households that required the service. Telstra accepted the decision and established a voucher scheme to assist people who required a TTY.
Assisting the courts
HREOC provides assistance to the courts in our role as amicus curiae ('friend of the court') and through our ability to intervene in cases, with the permission of the court. Our role is to provide specialist advice on human rights and discrimination issues, independent from the parties.
HREOC has sought leave to intervene in over 50 cases since 1988, involving family law, criminal law, child abduction, the rights of refugees and asylum seekers, native title, employment law and pay equity.
We have appeared in a number of prominent cases, including ‘Teoh’ (1994), ‘Tampa’ (2001), ‘McBain’ (2002) and the 2005 inquest into the death on Palm Island of Mulrunji, where the Queensland Coroner adopted all 40 of HREOC’s recommendations.
Find out more about HREOC’s legal research and resources at www.humanrights.gov.au/legal
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