International Journal of Discrimination and the Law

In order for an application for migration to Australia to be successful, potential migrants must meet various criteria, including specific requirements relating to health. These health requirements may create a barrier to migration to Australia for those who suffer from disability or disease. The Disability Discrimination Act 1992 (Cth) makes it unlawful to discriminate against a person based on disability, including disease. Significantly, the Disability Discrimination Act 1992 (Cth) does not apply to the Migration Act 1958 (Cth). Therefore discrimination on the grounds of disability in the administration of the Migration Act 1958 (Cth) is lawful. As a consequence of the Migration Act 1958 (Cth) being exempted from the operation of the Disability Discrimination Act 1992 (Cth), many migration applications have been lawfully refused due to the disability of the applicant or a member of the applicant's family. Recent cases have tested the validity of the opinions of the Commonwealth Medical Officers who are required to provide the necessary medical opinion upon which the migration application is determined. The decisions of the Federal Court in Robinson and Ramlu, which are discussed below, give new hope to future migration applicants. Both cases were decided in favour of the applicant, holding that the medical opinions provided were invalid under the relevant migration regulations because the Commonwealth Medical Officer had assessed the applicant's disability based upon a hypothetical generic person with the disease or condition of the applicant rather than having regard to the particular circumstances of the applicant. These cases send a clear signal to Commonwealth Medical Officers that they must now provide opinions based upon a case by case analysis, having regard to the actual nature and extent of the applicant's condition, rather than an assessment based on the generic person with the disease or condition. This paper examines these decisions in detail against the background of Australian immigration policy and its effects on people with disabilities.

The European Union (ED) Directive against racial and ethnic origin discrimination has been criticized for a number of reasons. The main ones are, firstly, that it places racial and ethnic origin at the top of the hierarchy of discrimination grounds in the ED and that it does not cover discrimination on the grounds of religion or belief; secondly, that its main aim appears to be to establish formal equality or equal treatment rather than a more substantive form of equality; and, thirdly, that it gives only limited protection to third country nationals (nationals of non-ED Member States). In this paper a number of changes to the Directive are suggested in order to make it into a more effective tool in the fight against racism and racial and ethnic origin discrimination.

This article examines the effectiveness of sexual orientation discrimination laws prescribed by the European Union. In particular, the article critiques Article 13 of the Treaty Establishing the European Community, and the Framework Directive which was established under the powers conferred by it. It is argued that the Framework Directive is too restrictive in its scope, in terms of the areas of life it covers (i.e. employment only), and that the exceptions to its provisions are unjustly broad. Analysis is also made of recent case law from both the European Court of Justice and the European Court of Human Rights in an attempt to demonstrate the progressive but limited nature of this area of law. As a main theme, the article examines the important role that the European Parliament has had, and continues to have, on the evolution of sexual orientation discrimination law and more broadly, gay and lesbian rights within the European Union.