Ms Beasley is Deaf and uses Auslan to communicate. Summoned to perform jury duty, she was turned away because she requires an Auslan interpreter to communicate with hearing jurors and others in the courtroom. The Committee found this denial of a ‘reasonable accommodation’ to allow Ms Beasley to exercise her legal capacity on an equal basis was a violation of her rights to equality before the law (art 5(1)), to reasonable accommodation (art 5(3)), to equal access to information and communications (art 9(1)), to access to justice (art 13(1)), freedom of expression (art 21(b)) and to participate in the conduct of public affairs (art 29(b)).
The Committee on the Rights of Persons with Disabilities agreed that reasonable accommodation would be to allow an Auslan interpreter to take an oath regarding confidentiality of jury deliberations.
Read more on Beasley v Australia.
Dr Campbell and her partner of 10 years, Ms A, had a daughter together and are both recognised as the child’s legal parents. Without access to marriage equality in Australia, the couple travelled to Canada to marry. They separated and Campbell assumed sole care of their daughter. They obtained a formal separation and division of property, but no formal proceedings concerning the custody and care of their daughter. Ms A stopped contributing to their mortgage and to child support.
Australia forbids child marriage, polygamous marriage and same-sex marriage, although these kinds of marriages are lawful in certain other countries. Australian law provides divorce proceedings for the former two types of marriage, but forbids same-sex couples who have married abroad from obtaining a divorce in Australia. Campbell alleged that this distinction constitutes discrimination on the basis of sexual orientation, with difficulties and harms arising both from discrimination and denial of divorce.
The Committee found Australia in breach of article 26 of the ICCPR (equality before the law).
Read more on Campbell v Australia.
A young man from central Australia was arrested for offences committed while suffering psychosis. He was deemed unfit to stand trial due to his intellectual impairment, but the court ordered that he remain in custody. He was held indefinitely in maximum security prison for over 7 years – far longer than any sentence that might have been imposed had he been tried and convicted – and he was, at times, held in solitary confinement, subjected to involuntary treatment and given ‘very limited or no access’ to mental health and disability services or rehabilitation programs.
The Committee found that Australia did not provide Mr Doolan with the accommodation and supports he needed to stand trial, to exercise legal capacity and access justice (art. 12(2), 12(3) & 13(1). Mr Doolan was deprived of his right to a fair trial and of the equal protection and benefit of the law (art. 5(1) & (2). Mr Doolan’s indefinite detention was arbitrary and his treatment, including solitary confinement, involuntary treatment, violence from other prisoners, denial of habilitation, rehabilitation, mental health and support services, was degrading, in violation of article 15.
Read more on Doolan v Australia.
Ms G is a transgender woman. She changed her name on her birth certificate and had her driver’s license, Medicare card and credit cards reissued in her new name and successfully applied for a passport in her new name and gender. She married a woman, and subsequently underwent gender affirmation surgery.
Because Australia did not, at the time, permit same-sex marriage, it would not change the gender on the birth certificate of someone who is married. The same restriction did not apply to other identity documents, such as passports.
Ms G’s birth certificate stated that she was born male, but presents and identifies female. It thereby reveals private information about the fact that she is transgender and is a violation of her right to privacy (art 17).
Requiring Ms G to divorce in order to obtain a birth certificate that correctly identifies her gender is arbitrary interference with her right to family (art 17).
Further, “by denying transgender persons who are married a birth certificate that correctly identifies their sex, in contrast to unmarried transgender and non-transgender persons, the government is failing to afford the author and similarly situated individuals equal protection under the law”. The HRC found Ms G experienced discrimination on the basis of her marital status and her transgender identity (art 26).
Australia must make “full reparation” to Ms G, including providing her with a birth certificate consistent with her sex. Australia must also prevent similar violations in the future by revising its legislation to comply with the Covenant.
Read more on G v Australia.
A young man was arrested for an assault committed while he was apparently suffering psychosis. He was deemed unfit to stand trial due to his intellectual impairment, but the court ordered that he remain in custody. He was held indefinitely in maximum security prison for over 9 years – far longer than any sentence that might have been imposed had he been tried and convicted – and he was, at times, held in solitary confinement, subjected to involuntary treatment and given ‘very limited or no access’ to mental health and disability services or rehabilitation programs.
The Committee found that Australia did not provide Mr Leo with the support he needed to stand trial, to exercise legal capacity and access justice (art. 12(2), 12(3) & 13(1). Mr Leo was deprived of his right to a fair trial and of the equal protection and benefit of the law (art. 5(1) & (2). Making public mental health services conditional on people with disabilities living in an institution is discriminatory (art. 5). Australia justified Mr Leo’s arbitrary detention on the basis of his disability (art. 14(1)(b)) and his treatment was inhuman and degrading (art. 15).
Read more on Leo v Australia.
A court decided an intellectually impaired teen facing criminal charges was unfit to plead; he was imprisoned indefinitely without trial. A psychologist determined that with appropriate assistance the author was capable of standing trial, but the charges were dropped owing to insufficient evidence. After 10 years in prison, the man was released on restrictive conditions of unlimited duration and with no avenue of appeal to have them lifted.
The Committee on the Rights of Persons with Disabilities found Mr Noble was denied a fair trial, equal protection under the law, and the support he required to exercise his legal capacity. The Committee found his disability was the ‘core cause’ of his deprivation of liberty, which it deemed arbitrary and a form of inhuman and degrading treatment.
In response, Australia admitted failures, but denied violating Mr Noble’s rights and declined to comply with any of the Committee’s recommendations.
Read more on Noble v Australia.
Nick Toonen was a gay Tasmanian in a state where consenting sex between adult men in private was still punishable by up to 25 years’ gaol. Mr Toonen alleged that this violated his right to privacy and that the only effective remedy would be repeal of the relevant provisions of the Tasmanian Criminal Code. The Australian Government agreed with Mr Toonen, noting that homosexuality had been decriminalised in all other Australian jurisdictions. The Tasmanian Government defended its laws, however, on public health and moral grounds. The HRC found the laws were an arbitrary interference with Mr Toonen’s right to privacy and that an effective remedy would require the repeal of those laws. It also established that the prohibition on discrimination on the basis of ‘sex’ found in articles 2(1) and 26 includes sexual orientation. Australia enacted the Human Rights (Sexual Conduct) Act 1994 (Cth) to prohibit laws that arbitrarily interfere with the sexual conduct of adults in private. Tasmania subsequently amended its Criminal Code.
Read more on Toonen v Australia.
Edward Young was in a same-sex relationship with war veteran Larry Cain for 38 years until the latter’s death. Mr Young was denied the pension paid to the dependants of war veterans who have died of war-related causes. The Veterans’ Entitlements Act 1986 (Cth) explicitly stated that eligible partners are of the opposite sex to the veteran, and this was the reason given for refusing Mr Young’s application. The Toonen case had established sexual orientation as a proscribed ground for differentiation under article 26, and the HRC found in Mr Young’s favour. It suggested Mr Young’s application for the pension be reconsidered without prejudice, and the law amended, if necessary. In 2008, Australia amended many instances of same-sex discrimination in federal legislation in a broad range of areas including veterans’ entitlements, and cited Young v Australia as an influencing factor. Mr Young has still not received the pension, however, as the Department of Veterans’ Affairs now contests his claim that Mr Cain died of war-related causes. The dispute is now one of medical opinion. The HRC has deemed Australia’s response unsatisfactory and follow-up dialogue ongoing.
Read more on Young v Australia.