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.