Human Rights Case Summaries

Elisabeth de Blok et al. v. the Netherlands Communication No. 36/2012, UN Doc CEDAW/C/57/D/36/2012 (17 February 2014)

The UN Committee on the Elimination of Discrimination against Women found that the Netherlands’ temporary failure to provide an adequate maternity leave scheme between 2004 and 2008 involved a breach of its obligations under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). 

The case raises interesting questions about the minimum standard of maternity leave required at international law; the ability of a state to meet its human rights obligations through the private sector; and the relationship between maternity leave and gender discrimination laws.

Cusan and Fazzo v. Italy [2014] ECHR (7 January 2014)

The European Court of Human Rights found that the official practice of automatically giving a child his/her father’s surname, even when the parents have agreed to give their child its mother’s surname, is a form of sex-based discrimination that is incompatible with the European Convention of Human Rights.

Aitken & Ors v The State of Victoria – Department of Education & Early Childhood Development (Anti-Discrimination) [2012] VCAT 1547 (18 October 2012)

In the recent decision of Aitken & Ors v The State of Victoria – Department of Education & Early Childhood Development, the Victorian Civil & Administrative Tribunal rejected a claim of direct discrimination made by parents of children at Victorian State primary schools against the Department of Education & Early Childhood Development in relation to its Special Religious Instruction (SRI) program.

Fedorchenko and Lozenko v Ukraine [2012] ECHR 1721 (20 September 2012)

In this decision, the European Court of Human Rights considered the procedural obligations of the right to life. It held that States have a duty to conduct an independent and effective investigation into all deaths, and in particular deaths associated with State agents

Air Canada Pilots Association v Kelly and Others, 2012 FCA 209 (17 July 2012)

A full bench of Canada’s Federal Court has found that mandatory age-based retirement schemes are not unlawful under the constitutional Charter of Rights and Freedoms, despite limiting the right to equality. In reaching this conclusion the Court applied earlier precedent which says that mandatory retirement is a justifiable limit on human rights.

BAE Systems Australia Limited (Anti-Discrimination Exemption) [2012] VCAT 349 (28 March 2012) 

In a recent application for an exemption under the Equal Opportunity Act 2010 (Vic) (EO Act), Member Dea of the Victorian Civil and Administrative Tribunal has considered the interaction between the right to equality under the EO Act and the Victorian Charter of Human Rights and Responsibilities.

Thales Australia Limited and ADI Munitions Pty Ltd (Anti-Discrimination) [2011] VCAT 729 (29 April 2011)

In this decision the Tribunal granted an exemption from certain provisions of the Equal Opportunity Act 1995 (Vic) (EO Act) to companies carrying out contracts with American firms in the defence industry. The Tribunal held that although granting an exemption may limit the rights to equality and privacy under ss 8 and 13 of the Charter, it was justified under s 7(2).

Withler v Canada (Attorney General) [2011] SCC 12 (4 March 2011)

In response to a class action brought on behalf of widows receiving spousal death benefits, the Supreme Court of Canada (SCC) has reviewed Canadian jurisprudence regarding the violation of the right to substantive equality under s 15(1) of the Canadian Charter of Rights and Freedoms and revisited the “comparator test” in the context of a challenge to a legislative employee benefits scheme. The decision could be said to represent the final nail in the coffin of the “mirror comparator” test and confirms that contextual, rather than formalistic, analysis is required when considering questions of substantive inequality.

Adan v Denmark, UN Doc CERD/C/77/D/43/2008 (21 September 2010)

The Petitioner, Saada Adan, filed a complaint against Denmark with the UN Committee on the Elimination of Racial Discrimination (CERD) alleging violations of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) in relation to comments made in political discussion on a radio programme by a politician, Søren Espersen.

CERD considered Denmark in breach of its obligations under the ICERD, specifically arts 2(1)(d), 4 and 6, on thebasis of failure to effectively prohibit acts of discrimination and dissemination of discriminatory ideas and a failure to provide effective protections and remedies to those aggrieved.

Ayangma v French School Board, 2010 PECA 16 (9 September 2010)

The decision reviews the Supreme Court of Canada’s jurisprudence in regards to the violation of the human right to equality under s 15(1) of the Canadian Charter of Rights and Freedoms in an employment context. The Prince Edward Island Court of Appeal considers whether the trial judge below erred in finding that the hiring of school teachers and principals by a school board was not in violation of the appellant’s right to equality.

Nikolaus Fürst Blücher von Wahlstatt v Czech Republic, UN Doc CCPR/C/99/D/1491/2006 (19 August 2010)

The Human Rights Committee has found that Czech land laws requiring citizenship as a necessary condition for restitution of property previously confiscated by authorities constitutes a violation of the right to equality before the law.

Zaunegger v Germany [2009] ECHR 22028/04 (3 December 2009)

In this case, the European Court of Human Rights held by six votes to one that the denial of a fathers’ right to custody of a child born out of wedlock violated his right to respect for family life under art 8, in conjunction with discriminatory treatment under art 14 of the European Convention.  The Court examined the tension between the right of fathers to have their family life respected and art 1626a § 2 of the German Civil Code and determined it amounted to unjustified discrimination against unmarried fathers on the grounds of sex in comparison with divorced fathers.

Sagen v Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games, 2009 BCCA 522 (20 November 2009)

The British Columbian Court of Appeal has confirmed that the Canadian Charter of Human Rights and Freedoms does not apply to non-governmental entities or activities.  The Court also held that the Charter right to equal benefit of the law does not apply in respect of benefits that are created by a private entity that is not acting as an agent of the Crown.

Travel Sisters (Anti-Discrimination Exemption) [2009] VCAT A189/2009 (17 November 2009) 

In 2009, Erin Maitland applied to the Victorian Civil and Administrative Tribunal (‘VCAT’) under s 83 of the Equal Opportunity Act 1995 (Vic) (‘EO Act’), for an exemption to allow her to operate women only travel tours. The applicant submitted that her proposed business would provide access to a safe and secure environment for women wishing to travel.

Hobsons Bay City Council & Anor (Anti-Discrimination Exemption) [2009] VCAT 1198 (17 July 2009)

The Victorian Civil and Administrative Tribunal has again granted a swimming pool operator a temporary exemption from the Equal Opportunity Act 1995 (Vic) ('EO Act') to enable it to conduct women-only swimming sessions and related programmes.  Deputy President McKenzie held that the exemption was a special measure for advancing equality and imposed a reasonable limitation on the right of men to non-discrimination and freedom of movement under the Charter.  Her reasons are very similar to those that she stated in the matter of YMCA – Ascot Vale Leisure Centre (Anti-Discrimination Exemption) [2009] VCAT 765 (4 May 2009).

Raytheon Australia Pty Ltd & Ors v ACT Human Rights Commission [2008] ACTAAT 19 (24 July 2008)

The ACT Administrative Appeals Tribunal has considered the interpretative principle and permissible limitations on human rights under the Human Rights Act 2004 (ACT) in a case concerning exemptions from anti-discrimination legislation.

Dudko v Australia, HRC, UN Doc CCPR/C/90/D/1347/2005 (29 August 2007)

In an important decision regarding the nature and scope of the right to equality before the courts, the UN Human Rights Committee has found Australiain violation of art 14(1) of the International Covenant on Civil and Political Rights.