Avon Global Center for Women and Justice at Cornell Law School - Green Background

Country Details

Australia

  • DW v. R, Australia, Court of Criminal Appeal (New South Wales), 2014.
    Appellant in this case was convicted of various sexual offenses against his minor daughter, the complainant, including charges of possessing child pornography. During the course of the trial, a recording of a conversation between the appellant and complainant had been entered into evidence. The recording detailed a sexually inappropriate conversation between the parties. At the trial level, this piece of evidence was deemed “reasonably necessary for the complainant’s lawful interest in protecting herself” from abuse by the father and was therefore allowed in as evidence. Appellant asserted that the recording was entered in error. The Court held that even if the recording was in fact entered in error, there was “no substantial miscarriage of justice and the appellant has not lost a real chance of acquittal.” Therefore, the appeal was dismissed.
  • NSW Registrar of Births, Deaths, and Marriages v. Norrie, Australia, High Court, 2014.
    After undergoing a sex affirmation procedure, Norrie registered as “non-specific” with the NSW Registrar. After initially approving this registration, the NSW informed Norrie that the registration was invalid. The Administrative Decisions Tribunal of New South Wales agreed with this determination, and the Tribunal’s appeal panel dismissed Norrie’s appeal. At this point, Norrie appealed to the Court of Appeal of New South Wales, which remitted the matter to the Tribunal for determination of Norrie’s sex classification. The Registrar appealed to the High Court. The issue on appeal to the High Court was whether the NSW Registrar was in fact confined to registrations of “male” or “female,” which would preclude Norrie’s registration as “non-specific.” The High Court noted that the Transgender (Anti-Discrimination and Other Acts Amendment) Act of 1996, which amended the Births, Deaths, and Marriages Registration Act of 1995, recognized “ambiguities.” Furthermore, the Court pointed to its holding in AB v. Western Australia, where it stated that "the sex of a person is not ... in every case unequivocally male or female." On this basis, the High Court held that individuals do not have to affirmatively select “male” or “female” following a sex affirmation procedure, and may instead register as “non-specific” with the NSW Registrar.
  • Richardson v. Oracle Corporation Australia Pty Ltd, Australia, Federal Court of Australia, 2014.
    Rebecca Richardson brought a sexual harassment suit against a former co-worker, Randol Tucker. Before Richardson left the company, Richardson and Tucker were colleagues at Oracle Corporation Australia. At trial, Ms. Richardson prevailed and was awarded $18,000 in damages for which Oracle Corporation Australia was vicariously liable. Ms. Richardson appealed, arguing that the award was inadequate. The High Court highlighted the difficulty in formulating awards of general damages in sex discrimination cases, but acknowledged that harassment can cause severe physical and mental strain. The Court noted that more significant awards were granted to the victims of workplace bullying than the victims of sexual harassment despite “comparable” damage caused by both types of conduct. Based on the distress Richardson experienced because of Tucker’s conduct, the Federal Court found that the $18,000 award was inadequate and substituted an award of $100,000 to compensate Ms. Richardson for psychological injury caused by the sexual harassment.
  • Montero v. R, Australia, Court of Criminal Appeal (New South Wales), 2013.
    The complainant, age 15, was sexually assaulted while staying at the applicant’s home. The applicant was convicted of the sexual offense and appealed the conviction. The applicant argued that the judge inappropriately used the location of the offenses, the applicant’s home, as an aggravating factor. The Court held that the application of this sentencing factor was appropriate as it concerns the violation of a visitor’s “reasonable expectation of safety and security.” The Court held that the sentencing judge did not err in terms of the administration of the sentence.
  • RO v. R, Australia, Supreme Court of New South Wales (Court of Criminal Appeal), 2013.
    This case concerns the sentencing of a sexual offender. The offender was convicted of eight counts of sexual intercourse and indecent assault against a sixteen year old girl. The defendant appealed his sentence, arguing that the judge erred in his determination that the victim “suffered significant psychological damage as a result of the offense.” On appeal, the Court found that the lower court erred in making the finding of “substantial” harm. The Court further held that the victim’s “psychological damage was multifactorial and that in the absence of medical evidence which separated out the effects of these offences,” the lower court’s determination of substantial psychological harm resulting from the offenses was inappropriate.
  • PGA v. The Queen, Australia, High Court, 2012.
    This case concerns charges of assault and rape brought against a husband, the appellant, for the rape of his wife in 1963. In an appeal to the High Court, the appellant sought immunity for the rape of his wife, arguing that marital rape was not illegal at the time the events took place. The appellant argued that his wife gave irrevocable consent to sexual intercourse upon their marriage in 1962 pursuant to the era’s common law. The Court considered existing laws and writings from the time period in question, questioning whether the aforementioned immunity ever actually existed and ultimately deciding that “if it did, it had ceased to do so sometime before 1963.” On the basis of this analysis, the Court dismissed the appeal.
  • Ayoub v. AMP Bank Limited, Australia, Court of Appeal, 2011.
    Ms. Ayoub claimed harassment and discrimination following a performance appraisal after which her position was made redundant. She also sought worker’s compensation for anxiety/distress caused by the alleged conduct. An arbitrator found for Ms. Ayoub on the basis that the company had failed to consult her on the redundancy decision and mishandled the performance appraisal and these actions caused her mental injuries. A court overturned the arbitrator, finding that first, while it would be unreasonable for an employer to inform a worker of her redundancy in a callous way, the redundancy decision was unrelated to Ms. Ayoub’s performance, and second, Ms. Ayoub’s position was such that she did not legally have to be consulted ahead of time. The Court of Appeals affirmed the Acting Deputy President’s decision, finding no error of law.
  • AZAAR v. Minister for Immigration and Citizenship, Australia, Federal Court, 2009.
    The appellant’s claims concerned domestic violence perpetrated by her husband and assertions of inadequate state protection from such violence. The appellant claimed that she did not receive, and would not receive, effective state protection in Vanuatu from such violence “because of systemic discrimination against women resulting from cultural norms and practices.” Prior to review by the Federal Court, a lower court held that “it was not satisfied that there was a real chance of her being denied protection by the authorities in Vanuatu should she require it” although there was evidence of domestic violence and potential future harm. The lower court noted that the victim had not actually sought the protection of authorities. The Federal Court subsequently determined that any suggestion that victims of domestic violence must actually seek the protection of the authorities as “a prerequisite for a finding of absence of adequate State protection” was erroneous. Therefore, victims of domestic violence do not have to actually go to the police in order to substantiate claims of inadequate protection where other evidence, such as cultural norms and practices, would otherwise substantiate the claims.
  • Jeffries v. R, Australia, Supreme Court of New South Wales (Court of Criminal Appeal), 2008.
    The appellant in this case was convicted of multiple domestic violence offenses and sentenced to prison. The appellant sought an appeal on the basis that the judge in the lower court “erred in failing to consider special circumstances in relation to the question of accumulation” and also imposed a “manifestly excessive” sentence. In light of the seriousness of the appellant’s offenses, as well as his history of domestic violence against the victim in the case, the Court ordered the appeal dismissed. When dismissing the appeal, the Court noted the appellant’s “pessimistic . . . prospects of rehabilitation,” as well as general goals of deterrence and community safety.
  • Sok v. Minister for Immigration and Citizenship, Australia, High Court of Australia, 2008.
    Sok, a Cambodian citizen, married an Australian woman who acted as his visa sponsor. A permanent visa is conditioned on the determination that the visa applicant is the spouse of the sponsor and that the parties have a genuine relationship. A delegate of the Minister for Immigration and Citizenship declined to grant Sok a permanent visa because the delegate “was not satisfied that the appellant [Sok] was the spouse of the sponsor.” Sok applied for a review of the refusal, later alleging that he was the victim of domestic violence by his sponsor. The case raised two questions: (1) whether the review Tribunal must consider Sok’s claim of domestic violence even though the claim was not raised until the refusal of his application and (2) whether the Tribunal can “decide that it is not satisfied that the alleged victim . . . suffered relevant domestic violence” without a hearing. The High Court sided with the appellant, holding that the Tribunal must consider the claim. The Court further held that the Tribunal cannot make a determination regarding the claim of domestic violence without allowing the appellant an opportunity to be heard.
  • Phillips v. The Queen, Australia, High Court, 2006.
    This appeal was based on the contention that there had been a wrong decision on a question of law concerning the admissibility of evidence in a sexual assault case. The appellant, Phillips, was convicted on several counts of rape and unlawful carnal knowledge and on one count of assault with intent to commit rape. The counts involved multiple teenage victims. Similarities existed across the victim’s stories and evidence was admitted concerning each victim. The Criminal Code stated that "an indictment must charge 1 offence only and not 2 or more offences," also stating that “Charges for more than 1 indictable offence may be joined in the same indictment against the same person if those charges are founded on the same facts or are, or form part of, a series of offences of the same or similar character or a series of offences committed in the prosecution of a single purpose." The appellant contended that the offenses did not reflect “offences of the same or similar character,” arguing that trial of the eight charges at once had been unduly prejudicial to his case. The High Court held that “prejudice to the fair trial of the appellant was substantial” and made a formal order for retrial.
  • R v. Hamid, Australia, Supreme Court of New South Wales (Court of Criminal Appeal), 2006.
    The Respondent in this case faced a prison term of two years and six months based on his convictions for 9 counts of serious domestic violence offenses. The Respondent was also ordered to refrain from any harassment or threatening conduct toward the victims (or those in domestic relationships with the victims) for ten years. In response to the sentencing of the Respondent, “the Crown submitted that the sentences imposed upon the Respondent were manifestly inadequate.” The Crown noted that “a number of individual sentences were themselves inadequate given the objective seriousness of the crimes involved.” The Court emphasized the importance of both specific and general deterrence for domestic violence offenses and noted “[r]ecognition of the harm done to the victim and the community as a result of crimes of domestic violence is important.” The Court ultimately held that “the sentences imposed upon the Respondent were manifestly inadequate” and resentenced the Respondent.
  • SZAIX v. Minister for Immigration & Multicultural & Indigenous Affairs and Refugee Review Tribunal, Australia, Federal Court of Australia, 2006.
    A citizen of Indonesia sought protection on the basis that she feared persecution on the grounds of race, religion and membership of a particular social group, alleged to be either Indonesian women or Chinese Christian women in Indonesia. The appellant was raped in Indonesia. The Refugee Review Tribunal concluded that perpetrators of sexual assault in Indonesia do not engage in rape as a means of persecuting ethnic Chinese women (or women) as a particular social group. The court found that the Tribunal did not fully consider the applicant’s arguments that she feared persecution from local authorities for reporting the rape and the applicant was granted leave to amend her application to raise that ground and any other new grounds.
  • SZEGN v. Minister for Immigration and Multicultural and Indigenous Affairs, Australia, Federal Court of Australia, 2006.
    A citizen of Fiji sought an extension of time to appeal a decision by a Federal Court Magistrate who affirmed a decision by the Refugee Review Tribunal to deny a protection visa. She alleged that she had a well-founded fear of persecution if returned to Fiji as a person who had been subjected to domestic violence by her former husband and as a member of the social group of “women at risk in Fiji.” The Tribunal found that while women had historically been at risk in Fiji, recent police forms and judgments suggested that she no longer had a reasonable fear of persecution. On appeal, she alleged that the Tribunal failed to provide her with a copy of certain country information as required by Australian law. The court found that the Tribunal was prepared to accept that the applicant was a member of a protected social group but did not accept that there was a lack of state protection. The court further found that the Tribunal adequately laid out the bases for its decision and that it did not rely on the material not provided to the applicant.
  • Banditt v. R, Australia, High Court of Australia, 2005.
    The relevant offense occurred when the appellant broke into and entered the home of the complainant, who was asleep. The appellant had sexual intercourse with the complainant without her consent. The appellant was convicted in a jury trial. The appellant challenged his conviction based on an instruction provided by the trial judge to the jury concerning the meaning of “reckless.” The appellant claimed that the instruction was insufficient, arguing that recklessness “is satisfied by "a discrete mental state which is, 'Even if I knew, I would continue. It does not matter to me'." The High Court held that the jury instruction was proper as administered and dismissed the appeal.
  • SYLB v. Minister for Immigration and Multicultural and Indigenous Affairs, Australia, Federal Court of Australia, 2005.
    A married couple, citizens of Yugoslavia and ethnic Albanians, sought protection on the basis that the wife feared persecution in Kosovo. The wife was raped by a Serbian soldier. The Refugee Review Tribunal concluded that the applicants each had a well-founded fear of persecution in Kosovo at the time they fled, but that those conditions no longer existed. The court concluded that the Tribunal misunderstood the legal test to be applied for the purpose of determining whether the female applicant was unwilling, due to a well-founded fear of persecution, to avail herself of the protection of her country.
  • VWFG v. Minister for Immigration & Multicultural and Indigenous Affairs, Australia, Federal Court of Australia, 2005.
    A citizen of Ghana sought protection for fear that she would be subject to arranged marriage and female genital mutilation. The Refugee Review Tribunal found the applicant to be not credible, in part because she could not identify the ethnic group that the proposed husband came from. The court found these factual conclusions satisfactory and affirmed.
  • Olga Dranichnikov v. Australia, Australia, Human Rights Committee, 2004.
    HRC held sex discrimination claim inadmissible for non-exhaustion of domestic remedies because of High Court judgment in petitioner's favor.
  • SVFB v. Minister for Immigration & Multicultural & Indigenous Affairs, Australia, Federal Court of Australia, 2004.
    A citizen of Nigeria sought protection for fear that she would be subject to female genital mutilation. The Refugee Review Tribunal found that female genital mutilation constitutes serious harm amounting to persecution, but that on the facts, there was no real risk that the applicant would be subjected to female genital mutilation.
  • VSAI v. Minister for Immigration & Multicultural & Indigenous Affairs, Australia, Federal Court of Australia, 2004.
    A citizen of Eritrea sought protection on the basis that she feared persecution in Eritrea, where she would either be (i) conscripted into, and subject to rape and abuse by, the army or (ii) prosecuted for failure to report for conscription. Although she presented evidence that rape, sexual abuse and impregnation by military officers was committed against draftees, including at the camp to which she would be assigned, as well as evidence showing incidents of parents killed whilst resisting the drafting of their daughters, a delegate of the Refugee Review Tribunal denied the application. The court found that the Tribunal misdirected itself by not asking whether rape, sexual abuse and impregnation by military officers was deliberate or pre-meditated conduct, exposure to which the applicant could not be expected to tolerate. The court set aside the Tribunal’s decision and the matter referred back to the Tribunal.
  • New South Wales v. Lepore, Australia, High Court of Australia, 2003.
    This decision concerned three separate cases of assault: New South Wales v. Lepore, Samin v. Queensland, and Rich v. Queensland. Each case involved the abuse of students by public school teachers. The victims alleged that the educational authority was liable on the basis of a non-delegable duty of care. The Court found the argument unpersuasive and overly broad: “The proposition that, because a school authority's duty of care to a pupil is non-delegable, the authority is liable for any injury, accidental or intentional, inflicted at school upon a pupil by a teacher, is too broad.” The victims also sought damages from the government on an alternative theory of vicarious liability. The Court considered related decisions by the Supreme Court of Canada and the House of Lords where educational authorities were held vicariously liable for the conduct of their employees. The Court asserted that vicarious liability for the criminal conduct of an employee exists where the employee was acting as agent, servant, or representative of the employer when the incident occurred. The Court ordered a new trial in the case of Lepore, and dismissed the appeals of Samin and Rich.
  • Kumar v. Minister for Immigration & Multicultural Affairs, Australia, Federal Court of Australia, 2002.
    A married couple, both of Indian ethnic origin and citizens of Fiji, sought protection for fear of persecution on the grounds that the wife was abducted and raped because of her Indian ethic origins and because of her husband’s local political activity. The Refugee Review Tribunal did not accept that the wife was raped for reasons of her Indian ethnic origins, nor her husband’s support for the FLP. The court affirmed.
  • Minister for Immigration and Multicultural Affairs v. Khawar, Australia, High Court, 2002.
    A Pakistani citizen and her children applied for protection visas in Australia. The issue was whether Pakistan failed to provide protection against domestic violence and if this failure can be considered persecution (allowing refugee status). The Court found that the woman could be considered a part of a persecuted "social group" because women are a "distinct and recognizable group" and that failure to protect can be persecution if there is 1) "criminal conduct of private citizens" and 2) "condonation [sic] of such conduct by the state or its agents, in circumstances where the state has a duty to protect against such harm."
  • Weheliye v. Minister for Immigration & Multicultural Affairs, Australia, Federal Court of Australia, 2001.
    A citizen of Somalia sought a protection order on the basis that she feared persecution due to her status as young, a Somali and a woman. The application asserted that she had been sentenced to death by stoning for adultery in Somalia. The Refugee Review Tribunal denied the application, finding the applicant not credible and holding that neither married nor divorced Somalia women constituted a protected group. The court held that the Tribunal erred because it did not examine whether the law against adultery was applied and administered in Somalia in a discriminatory manner.
  • Gilroy v. Angelov, Australia, Federal Court of Australia, 2000.
    Leoni Gilroy made allegations of sexual harassment against a co-worker, Branko Angelov, who is the respondent in this case. Gilroy sought damages against her employers, Craig and Toni Botting, the second respondents. Gilroy reported the sexual harassment to Mr. Botting, who told Gilroy that he didn’t believe Angelov would act in such a way. Nevertheless, Bottling agreed to keep Angelov away from her at work. Later, Mr. Botting terminated Gilroy’s employment, stating that Mrs. Botting believed that Mr. Botting and Gilroy were having an affair. The Court entered judgment in favor of Ms. Gilroy for $24,000 against the Bottlings, highlighting the emotional and financial difficulties experienced by Ms. Gilroy.
  • Minister for Immigration & Multicultural Affairs v. Ndege, Australia, Federal Court of Australia, 1999.
    A citizen of Tanzania sought protection on the basis that she feared persecution as a married woman in Tanzania. The applicant had been raped by her husband and argued that Tanzanian authorities were unwilling or unable to protect female citizens. The Refugee Review Tribunal denied the application because there was no evidence that the husband’s violence was related to any protected status. The court affirmed, but nevertheless remitted to the Tribunal to consider whether the husband’s violence against the applicant had been motived by a Convention related reason, such as race, religion, nationality, political opinion or of her membership in a particular social group.
  • Hickie v. Hunt & Hunt, Australia, Human Rights and Equal Opportunity Commission, 1998.
    Marea Hickie, a solicitor, claimed unlawful discrimination by her employer, the partnership of Hunt & Hunt, during and after her maternity leave. Shortly after returning from maternity leave, the firm decided not to renew Hickie's contract. At issue was a requirement that Hickie work full-time to maintain her position at the firm. Hickie claimed that the firm’s non-renewal constituted unlawful discrimination on the basis of sex, marital status, pregnancy, potential pregnancy and family responsibility. Upon review of the case, the Commission noted that such a requirement was “likely to disadvantage women” and therefore the firm’s non-renewal resulted from “an act of [indirect] discrimination.” The respondent firm was ordered to pay Hickie $95,000 in compensation.
  • Croome v. Tasmania, Australia, High Court of Australia, 1997.
    The plaintiffs challenged sections of the Tasmanian Criminal Code criminalizing homosexual conduct. The plaintiffs alleged that the challenged sections violated provisions of the Human Rights (Sexual Conduct) Act of 1994. The case revolved around whether the plaintiffs brought the action prematurely (i.e., whether the plaintiffs had “sufficient interest” to bring the action before the Court). The Court held that the case was “not to be denied at the threshold” and that the plaintiff’s claim was neither “abstract nor hypothetical.” The fact “that the plaintiffs “faced possible criminal prosecution”’ sufficed as a “sufficient interest” in the case.