Gender dysphoria treatment: Capacity to consent and the role of the court

Re: Martin [2015] FamCA 1189 (23 December 2015) 

The parents of a 16 year old child (identifying as male) sought a declaration that their son was competent to consent to stage two cross-sex hormone treatment for gender dysphoria. Justice Bennett of the Family Court of Australia followed the approach set out by the Full Court of the Family Court in Re: Jamie [2013] FamCAFC 110 (Re Jamie) of considering whether the child was competent to consent to the treatment according to the test in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. While considering herself bound by Re Jamie, her Honour expressed strong criticism of the Full Court’s decision and of the current position under Australian law which requires a court authorisation before stage two treatment for gender dysphoria can be undertaken.

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All are equal before the law: legal aid as a human right

Bayley v Nixon and Victoria Legal Aid [2015] VSC 744 

In Bayley v Nixon and Victoria Legal Aid, Bell J upheld the principle that every person stands equal before the law. Although Bayley had been convicted of very serious crimes, his request for legal aid should not have been rejected without proper basis. As His Honour stated at [73]: “It is not lawful to reject an application for legal assistance, including for legal assistance in relation to a criminal appeal, upon the sole ground that the applicant is a notorious and unpopular individual who has already been convicted of and sentenced for heinous crimes.”

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Blanket mental health exclusion clause in travel insurance policy amounted to unlawful discrimination

Ingram v QBE Insurance (Australia) Ltd [2015] VCAT No H107/2014 (18 December 2015)

The Victorian Civil and Administrative Tribunal (VCAT) found QBE Insurance (Australia) Limited (QBE) unlawfully discriminated against Ella Ingram on the basis of her disability, namely a mental illness, contrary to the Equal Opportunity Act 2010 (EOA) when it included a blanket mental health exclusion in the travel insurance policy issued to Ms Ingram and when it rejected her claim by relying on that clause.

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High Court considers the Government’s refugees processing priorities policy

Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50 (17 December 2015)

The High Court declined to overturn a decision of a Delegate of the Minister for Immigration and Border Protection, which refused the grant of a permanent visa to the family of an Iranian man, who was already in Australia on a protection visa. The Court held that despite the persuasive evidence put forward by the plaintiff in advancement of the application, it was open to the Delegate to decline the grant of the visa, as the evidence was not so compelling, when factoring in the limited capacity of Australia to accommodate refugees, as to warrant special consideration by the Delegate. 

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Unanimous High Court finds two routes to the same outcome on jurisdictional error

Wei v Minister for Immigration and Border Protection [2015] HCA 51

The High Court of Australia has recently handed down a unanimous judgment quashing a decision of the Minister for Immigration and Border Protection to cancel an international student visa, on the basis that the decision was reached by a process of fact-finding that was tainted by a third party’s failure to perform its imperative statutory duty. The decision was thus tainted by jurisdictional error.

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UN Human Rights Committee Considers Australian Breaches of the International Covenant on Civil and Political Rights

Zoltowski v Australia, HRC, Communication No 2279/2013, UN Doc CCPR/C/115/D/2279/2013 (7 December 2015)

The UN Human Rights Committee (‘Committee’) decision in Zoltowski v Australia established that a State party is required to allow contact between family members during family law proceedings. A failure to do so can amount to arbitrary interference with the family in violation of articles 17(1), 23(1) and 24(1) of the International Covenant on Civil and Political Rights (‘Covenant’). Further, the decision confirmed that a failure to deal expeditiously with a family law matter, without providing some ‘provisional access scheme’, can amount to a violation of the fair hearing provision in article 14(1) of the Covenant. An exception to these findings is if the failure to adopt such measures is in the best interests of the child.

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Court rejects army’s decision to sack Major for homophobic slurs on social media

Gaynor v Chief of the Defence Force (No 3) [2015] FCA 1370

Justice Buchanan of the Federal Court has set aside a decision of the Chief of Defence Force (“CDF”) that terminated the commission of Bernard Gaynor, a Major in the Australian Army Reserve of Roman Catholic faith, due to Gaynor’s public comments on social media and his personal website. His Honour held that the decision to terminate Gaynor’s commission imposed an unreasonable burden on the implied constitutional freedom of political communication.

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Secret surveillance in Russia violates the right to privacy

Zakharov v Russia (European Court of Human Rights, Grand Chamber, Application no. 47143/06, 4 December 2015)

The Grand Chamber of the European Court of Human Rights has unanimously held that the Russian system of secret interception of mobile telephone communications was a violation of article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Article 8 guarantees, among other things, the right to respect for private life and correspondence. In addition, the Court accepted that if certain conditions are satisfied an applicant can claim to be the victim of a violation of article 8 due to the mere existence of a secret surveillance measure. The conditions were met in this case, therefore the applicant did not have to demonstrate that he was at risk of being subject to secret surveillance. Instead, the legislation was examined in the abstract.

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A step in the right direction for reproductive rights in Northern Ireland

The Northern Ireland Human Rights Commission’s Application [2015] NIQB 96 (30 November 2015)

The High Court of Justice in Northern Ireland has found that the failure of the law in Northern Ireland to provide exceptions in two circumstances to the prohibition of abortion is contrary to Article 8 of the European Convention on Human Rights. Sections 55 and 59 (Offences Against the Person Act 1861) and section 25 (Criminal Justice Act (NI) 1945) prohibit and punish any act that is intended to procure a miscarriage, with the one exception being if that is done for the purpose of preserving the mother’s life. The Court held that the following two exceptions to this prohibition should be permitted: (1) cases of fatal foetal abnormality (FFA) for termination at any stage; and (2) pregnancies due to rape and incest (sexual crime) for termination up to the date when the foetus is capable of existing independently of the mother.

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Supreme Court of Canada reads down 'overbroad' people smuggling laws

B010 v Canada (Citizenship and Immigration) [2015] 3 SCR 704 (27 November 2015)
R v Appulonappa [2015] 3 SCR 754 (27 November 2015)

The Supreme Court of Canada has handed down twin rulings narrowing the interpretation of people smuggling laws in relation to both the offence of people smuggling, and the inadmissibility of migrants alleged to have been involved in people smuggling. McLachlin CJ delivered the leading judgment in both cases, with whom all judges unanimously agreed. The separate but related proceedings of B010 v Canada and R v Appulonappa considered two key people smuggling provisions in the Immigration and Refugee Protection Act (IRPA) – B010 v Canada considered the inadmissibility of people smugglers, while R v Appulonappa considered the prosecution of people smugglers.

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