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Click on each title below to read more about the cases under each section.

JM v QFG and GK [1998] QCA 228

A lesbian couple made a complaint of discrimination under the Anti-Discrimination Act 1991 (Qld) against a Queensland fertility clinic which refused to provide access to assisted reproductive technology (ART) to assist them to have a child. The complaint succeeded before the Queensland Anti-Discrimination Tribunal, but was overturned by the Queensland Court of Appeal. The court found that the woman was not refused access to services because she was a lesbian, but as a result of ‘heterosexual inactivity’, which does not form the ground for a complaint of discrimination. The decision limited access to ART in Queensland through the legal sanctioning of a select medical definition of infertility and rejected ‘social infertility’ as a basis for access to ART. This is the only case in Australia which directly concerns the right of lesbians to access fertility services.

Commentary author

Paula Gerber is an Associate Professor in the Faculty of Law, Monash University. Her doctoral thesis examined the implementation of Article 29 of the UN Convention on the Rights of the Child and she is an expert on human rights law.

Judgment author

Anita Stuhmcke is a Professor in the Faculty of Law, University of Technology, Sydney. Prior to this, Anita worked as a solicitor for a large law firm. Her research interest lies in the ability and limitations of law to relate to social change.

McLeod v Power [2003] FMCA 2

This case involved a complaint of racial hatred taken by Neale McLeod, a white prison officer, under the Racial Discrimination Act 1975 (Cth). McLeod claimed he had been subject to racial vilification through being described as ‘white’ during a verbal altercation with Samantha Power, an Aboriginal woman. He sought an apology and monetary compensation and his action was financially supported by his union. McLeod denied Power access to the prison to visit her former partner because she had not brought the correct identity documents, though she had regularly been admitted to the prison on prior occasions. The Federal Magistrates Court dismissed the complaint as it found that Power’s insults did not amount to racial vilification because the term ‘white’ was not a reference to McLeod’s race. This case is valuable in revealing the erasure, and therefore the significance, of whiteness as a racial identity in Australian law and demonstrates the ‘everyday’ character of patriarchal white sovereignty that endures in the lived experience of Australian Aboriginal peoples.

Commentary author

Katharine Gelber is a Professor in Public Policy at the University of Queensland. She was previously based at the University of New South Wales. Kath is an Australian Research Council Future Fellow. Her research interest is in human rights, with a particular emphasis on freedom of speech and the regulation of hate speech.

Judgment author

Jennifer Nielson is a Senior Lecturer in the School of Law and Justice at Southern Cross University. Her research interests include discrimination and employment law, with a particular focus on the application of critical race and critical whiteness studies to law, as well as social justice in rural, regional and remote communities.

New South Wales v Amery [2006] HCA 14

The applicants, a group of female casual teachers, contended that the policy and practice of the New South Wales Department of Education and Training of restricting pay scales for ‘temporary’ teachers (thereby excluding non-permanent teachers from the highest levels of pay) was discriminatory under the Anti-Discrimination Act 1977 (NSW). They argued that the policy was indirect discrimination against women because the applicants had previously been employed as permanent staff at the higher levels of remuneration but had resigned in order to undertake family responsibilities. They were therefore effectively precluded from achieving permanent status upon returning to work. The High Court upheld the policy of different pay rates for temporary and permanent staff. The outcome of this case limits claims of indirect sex discrimination in employment and therefore has significant implications for pay equity.

Commentary author

Margaret Thornton is Professor and ARC Professorial Fellow at The Australian National University. She is a Fellow of the Academy of Social Sciences in Australia and a Foundation Fellow of the Australian Academy of Law. Her research areas include feminist legal theory and discrimination.

Judgment author

Beth Gaze is an Associate Professor at the University of Melbourne and a member of the Centre for Employment and Labour Relations Law and the Centre for Comparative Constitutional Studies. Beth’s research interests are in anti-discrimination and equality law