Healthy law makes for healthy children: Cattanach v Melchior

When courts are forced to consider issues surrounding birth and the sanctity of life, it is inevitable that divergence of judicial, academic and public opinion will result. However, the issue of whether parents can recover the expenses of rearing a healthy child has long vexed judges and commentators of law, ethics and medicine both in Australia and globally, with considerable disunity. A cogent example is the recent High Court of Australia decision in Cattanach v Melchior (2003) 215 CLR 1, where the court split four to three and handed down no less than six individual judgments. The case involved the birth of a healthy child following an unplanned pregnancy resulting from a failed surgical sterilisation. By allowing parents to recover the reasonable expenses of rearing an unintended child until the age of 18 years, the decision has provided some limited and temporary legal clarity to the issue of wrongful pregnancy in Australia. It is seen by some as a victory for the reproductive freedom of women and the rights of the child. However, with uncertainty remaining on the issue of wrongful life claims in Australia and with legislative changes in Queensland and New South Wales that partly reverse the High Court's decision, there remains doubt about the future of such claims in Australia.     

Economic impact of Wicks v State Rail Authority (NSW) (2010) 84 ALJR 497

In Wicks v State Rail Authority (NSW) (2010) 84 ALJR 497 the High Court of Australia held that, among other things, plaintiffs (who establish that they suffer a recognised psychiatric illness as a result of the breach of duty of care owed to them by the defendant under s 32 of the Civil Liability Act 2002 (NSW)) are entitled to recover damages for pure mental harm under s 30 if their psychiatric injury arose "wholly or partly from" a "series of shocking experiences" in the form of "a sudden and disturbing impression on the mind and feelings" in connection with witnessing at the scene "another person ('the victim') being killed, injured or put in peril by the act or omission of the defendant". The High Court construed the phrase "being ... injured or put in peril" to include plaintiffs who suffer pure mental harm by witnessing at the scene another person being injured through the process of suffering pure mental harm in the form of psychiatric injury occasioned by the defendant's negligent act or omission. The Wicks decision raises the question whether the expanded liability of defendants for pure mental harm is economically sustainable.     

A bad trip for health-related human rights: implications of Momcilovic v The Queen (2011) 85 ALJR 957

Momcilovic v The Queen (2011) 85 ALJR 957; [2011] HCA 34 arose from a prosecution for drug trafficking brought under the Drugs, Poisons and Controlled Substances Act 1981 (Vic). The Australian High Court held that the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) validly conferred a power on the Victorian Supreme Court and Court of Appeal to interpret legislation in a manner consistent with a defined list of human rights. By a slim majority it also held that the Charter validly created a judicial power to "declare" a law inconsistent with one or more enumerated human rights. In reaching its decision, however, the majority supported a narrow interpretation likely to undermine the intended capacity of the Charter to act as a remedial mechanism to reform laws, regulations and administrative practices which infringe human rights and freedoms. Although Momcilovic involved interpretation of a specific State human rights law, the High Court judgments allude to significant problems should the Federal Government seek to introduce a similar charter-based human rights system. Momcilovic, therefore, represents a risk to future efforts to develop nationally consistent Australian human rights jurisprudence. This has particular relevance to health and medically related areas such as the freedom from torture and degrading and inhuman treatment and, in future, enforceable constitutional health-related human rights such as that to emergency health care.     

Independent Schools Council v Charity Commission for England and Wales [2011] UKUT 421 (TCC)

This note provides a critical analysis of the Upper Tribunal's decision and questions its proposed application and legal justification. The author suggests that the Upper Tribunal has introduced a third sense of public benefit and that this relies upon a circular rationale which is informed by policy rather than law.     

Unity Dow v. Attorney-General (Botswana) [June 1991

The plaintiff was a citizen of Botswana, married to a non-citizen, whose children had been denied citizenship under a provision of the Citizenship Act 1984 that conferred citizenship on a child born in Botswana only if "a) his father was a citizen of Botswana; or b) in the case of a person born out-of-wedlock, his mother was a citizen of Botswana." The plaintiff claimed that this provision violated guarantees of the Botswana Constitution. The High Court agreed, holding that the provision infringed the right to liberty, the right not to be expelled from Botswana, the right not to be subjected to degrading treatment, and the right not to be discriminated against on the basis of sex. It concluded that the right to liberty had been infringed because the provision hampered a woman's free choice to marry a non-citizen and, in fact, undermined marriage; that the right not to be expelled from Botswana was infringed because, if the plaintiff's resident permit was not renewed she would be forced to leave Botswana if she desired to stay with her family; and that the right not to be subjected to degrading treatment was infringed because any law discriminating against women constitutes an offense against human dignity. This decision was subsequently upheld by the Botswana Court of Appeal.