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The Global Legal Monitor is an online publication from the Law Library of Congress covering legal news and developments worldwide. It is updated frequently and draws on information from official national legal publications and reliable press sources. You can find previous news by searching the Global Legal Monitor.

Japan: Supreme Court Rules Obligatory Contracts with Public Broadcasting Corporation for Reception Equipment Are Constitutional

(Dec. 13, 2017) In a decision issued on December 6, 2017, Japan’s Supreme Court ruled that a provision obligating persons who have installed such broadcast-reception equipment as televisions to conclude a contract with Japan’s public broadcasting corporation is constitutional.  (Sup. Ct. Dec. 6, 2017, 2014 (o) 1130, Courts in Japan website (in Japanese) (click on PDF icon near the bottom of the page).)

Background

Nippon Hoso Kyokai (NHK, Japan Broadcasting Corporation), Japan’s only public broadcaster, operates four television channels and three radio channels.  (Overview of Operations, NHK ONLINE (last visited Dec. 6, 2017); NHK Corporate Information, NHK ONLINE (last visited Dec. 6, 2017).)  The Corporation states it “is funded through TV receiving fees, which are paid equally by every household and business with a television set.  The fees are the main source of income for NHK, making up nearly 100% of the total.”  (Receiving Fee System, NHK ONLINE (last visited Dec. 6, 2017).)  NHK is prohibited from running its business for profit and airing commercials in its programs.  (Broadcasting Act, Act No. 132 of 1950, as amended by Act No. 96 of 2014, arts. 9 ¶ 3 & 46 ¶ 1, Japanese Law Translation website.)

The number of people refusing to pay NHK reception fees surged around 2004 following several scandals involving NHK employees.  In 2006, the percentage of people who paid NHK fees dropped to 68%, the lowest point since the corporation was founded.  Subsequently, NHK started to collect fees rigorously, resulting in the rate of those paying fees climbing to 79% in 2016.  (NHK Reception Fee, Contacts with Consumer Centers Increased 4 Times in Last 10 Years, NHK Collected 5 Years of Unpaid Fees, MAINICHI (Dec. 4, 2017) (in Japanese).)

NHK has filed approximately 300 lawsuits against people who did not pay broadcasting fees – even those who insisted that they did not agree to have contracts with NHK and did not watch or listen to NHK programs. (NHK Reception Fee Unconstitutional? Constitutional? Issues for Supreme Court, TELENEWS24 (Oct. 25, 2017) (in Japanese).)

The Case

NHK based its legal claims on article 64 of the Broadcasting Act, which requires persons installing reception equipment capable of receiving NHK broadcasts to conclude a contract with NHK for the reception of those broadcasts (Broadcasting Act, art. 64), and provided four alternative reasons for establishment of the contract and the fees.  This article of the Broadcasting Act does not explain details of those possible reasons.  (Sup. Ct. Dec. 6, 2017.)

The defendants in the case who had refused to pay the NHK fees argued that article 64 of the Broadcasting Act does not have the effect of forcing the conclusion of the fee agreement and, even if it did, the provision would be unconstitutional because it violates their rights under the Constitution guaranteeing the freedom to conclude contracts, the right to know, and the right to property. (Id.; Constitution of Japan, 1946, arts. 13, 21, & 29, Prime Minister of Japan website.)

Among other things, the Supreme Court decided that persons who have installed reception equipment but refused to have a contract with NHK must conclude such a contract when NHK obtains a court judgement to that effect. The Supreme Court also stated that, because electromagnetic waves must be allocated equally and efficiently, government regulation is required, and the government has the discretion to establish a system to regulate broadcasts.  The Court ruled that it is within the discretion of the government to obligate people who install reception equipment to have contracts with the NHK, because of the public role NHK plays in contributing to the peoples’ right to know.  Accordingly, the Court did not find article 64 of the Broadcasting Act unconstitutional.  (Sup. Ct. Dec. 6, 2017.)

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Georgia: Marijuana Use Decriminalized

(Dec. 13, 2017) On November 30, 2017, the Constitutional Court of Georgia decriminalized the personal use of marijuana and other cannabis-based products. The Court decision, while affirming the right to use marijuana, recognized its potential health risks and did not legalize the sale, distribution, or production of marijuana; those acts are still considered crimes.  Decriminalization in the past applied only to possession of up to 70 grams of dried cannabis.  The Court’s decision, however, only applied to criminal penalties and did not end the possibility of a fine or administrative sanction for consumption of marijuana.  (Brittney Zeller, Republic of Georgia Constitutional Court Decriminalizes Marijuana Usage, PAPER CHASE (Dec. 1, 2017); Thea Morrison, Georgian Constitutional Court Decriminalizes Marijuana Consumption, GEORGIA TODAY (Nov. 30, 2017); Press Release, Constitutional Court, Decision of the Constitutional Court of Georgia “Citizen of Georgia Givi Shanidze v. Parliament of Georgia” (Nov. 2017) (in Georgian).) 

The decision came in a case brought by a citizen, Givi Shanidze, who wished to have his criminal record of repeated marijuana use offenses erased. (Jon Hiltz, The Republic of Georgia Has Decriminalized Cannabis Consumption, MARIJUANA.COM (Nov. 30, 2017).) He was supported by Iago Khvichia, a member of a non-parliamentary opposition party.  (Morrison, supra.)  The suit challenged article 273 of the Criminal Code, which states that repeated preparation, purchase, or keeping of small quantities of narcotics or similar drugs for personal use, without a doctor’s prescription, after an administrative sanction has been imposed for such activities, may be punished with a fine, community service of 120 to 180 hours, or imprisonment for up to one year.  (Id.; Criminal Code of Georgia (July 22, 1999, with amendments up to Jan. 1, 2017), art. 273, LEGISLATIVE HERALD OF GEORGIA.)  The basis for the case was Georgia’s Constitution, which grants the right to freedom of personality.  (The Constitution of Georgia (Aug. 24, 1995, as last amended Dec. 27, 2006), art. 16, Parliament of Georgia website.)

In July of this year, the Court decided that it was not a crime to cultivate up to 151 grams of marijuana, as long as it was for personal use. (Hiltz, supra.)

Comments on the Decision

Khvichia stated that he hoped full legalization of marijuana consumption will be the next step. “We have at least overcome the Soviet obstacles about marijuana consumption. From now, consumers of cannabis will not be considered as criminals … .  I want to promise people that marijuana consumption will be legal soon,” Khvichia said. (Morrison, supra.)

Akaki Zoidze, the Chair of the parliamentary Health Committee, stated that the legislature is now working on a draft law that would eventually legalize marijuana use and predicted that the use of other drugs in Georgia would also be decriminalized by the law when adopted. (Id.)

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Australia: Same-Sex Marriage Bill Passes

(Dec. 13, 2017) On December 7, 2017, the Australian House of Representatives (lower house) voted to pass the Marriage Amendment (Definition and Religious Freedoms) Bill 2017, which legalizes same-sex marriage nationwide, with only four members voting against the legislation. (Marriage Amendment (Definition and Religious Freedoms) Bill 2017, PARLIAMENT OF AUSTRALIA (last visited Dec. 7, 2017).) The Senate had previously voted on the same legislation on November 29, 2017. The Governor General signed the Bill into law on December 8, 2017. (Id.) The amendments went into effect at midnight, with couples able to lodge a Notice of Intended Marriage form from December 9, 2017, starting a one-month notice period. Therefore, the first same-sex marriages can take place on January 9, 2018. (Louise Yaxley, Same-Sex Marriage Signed into Law by Governor-General, First Weddings to Happen from January 9, ABC NEWS (Dec. 8, 2017).)

The Bill was introduced in the Parliament on November 15, 2017, the same day that the results of a non-binding “postal survey” were announced, with 61.6% of participants voting in favor of allowing same-sex couples to marry. (Survey Results, AUSTRALIAN MARRIAGE LAW POSTAL SURVEY, AUSTRALIAN BUREAU OF STATISTICS (ABS) (last visited Dec. 7, 2017).) It amends the definition of marriage in the Marriage Act 1961 (Cth) by removing “a man and a woman” and replacing this phrase with “2 people.” (Marriage Amendment (Definition and Religious Freedoms Bill 2017 (Cth) [text of the Bill], sch 1 cl 3, FEDERAL REGISTER OF LEGISLATION.) It also recognizes foreign same-sex marriages in Australia.

In addition, the Bill amends the Marriage Act and the Sex Discrimination Act 1984 (Cth) “to provide protections for religious freedom in respect of marriage” by

  • allowing ministers of religion to refuse to solemnise a marriage in conformity with their religion’s doctrine, their religious beliefs or in order to avoid injury to the susceptibilities of their religious community
  • creating a new category of ‘religious marriage celebrants’ who can refuse to solemnise a marriage where their religious beliefs do not allow them to do so
  • allowing bodies established for religious purposes to refuse to provide facilities, goods and services for marriages on religious grounds. (Mary Anne Neilson, Marriage Amendment (Definition and Religious Freedoms) Bill 2017 (Bills Digest No. 54, 2017-18, Nov. 24, 2017); see also Marriage Amendment (Definition and Religious Freedoms) Bill 2017 – Explanatory Memorandum, FEDERAL REGISTER OF LEGISLATION.)

Background

The legal status of same-sex relationships has been the subject of a long-running debate in Australia. In 2004, the Parliament passed the Marriage Amendment Act 2004 (Cth), which inserted, for the first time, a definition of “marriage” into the Marriage Act 1961 (Cth). (Marriage Amendment Act 2004 (Cth), FEDERAL REGISTER OF LEGISLATION; Marriage Amendment Bill 2004, PARLIAMENT OF AUSTRALIA (last visited Dec. 7, 2017); Kim Haines, Marriage Amendment Bill 2004 (Bills Digest No. 5 2003-04, July 20, 2004).) Marriage was defined as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.” (Marriage Act 1961 (Cth) s 5, FEDERAL REGISTER OF LEGISLATION.) The 2004 amendments also inserted a provision to prohibit the recognition in Australia of same-sex marriages performed in other countries. (Id. s 88EA.)

Since the adoption of the 2004 amendments, “23 bills dealing with marriage equality or the recognition of overseas same-sex marriages have been introduced into the federal Parliament,” with three coming to a vote in the Senate, and one in the House. (Deirdre McKeown, Chronology of Same-Sex Marriage Bills Introduced into the Federal Parliament: A Quick Guide (Parliamentary Library, Dec. 1, 2017); Kelly Buchanan, Australia: Australian Parliament Votes Down Two Marriage Equality Bills, GLOBAL LEGAL MONITOR (Sept. 26, 2012).)

Under the Australian Constitution, the federal Parliament has the power to legislate with respect to marriage. (Commonwealth of Australia Constitution Act 1900, s 51(xxi).) This power is held concurrently with the states but state legislation cannot be inconsistent with provisions enacted at the federal level. In recent years, some Australian jurisdictions have taken their own actions to give legal recognition to same-sex relationships. The Australian Capital Territory attempted to legalize same-sex marriage, but the relevant legislation was struck down by the High Court of Australia in 2013 for being inconsistent with the federal marriage law. (Kelly Buchanan, Australia: High Court Strikes Down Territory’s Same-Sex Marriage Law, GLOBAL LEGAL MONITOR (Dec. 19, 2013); Kelly Buchanan, Australia: Bill to Establish State Relationship Register for Same-Sex Couples Introduced, GLOBAL LEGAL MONITOR (Oct. 7, 2016).) At the federal level, in 2008 and 2009, various laws were amended to provide for equal entitlements and responsibilities for people in same-sex relationships. (Same-Sex Relationships (Equal Treatment in Commonwealth Laws–General Law Reform) Act 2008 (Cth), FEDERAL REGISTER OF LEGISLATION; Same-Sex Relationships (Equal Treatment in Commonwealth Laws – Superannuation) Act 2008 (Cth), FEDERAL REGISTER OF LEGISLATION.)

Australian Marriage Law Postal Survey

Following the legalization of same-sex marriage in several other countries in recent years, the debate in Australia intensified. The Coalition, which was in government during the previous Parliament and again following the July 2016 election, adopted a policy of putting the question to a popular vote. In August 2017, the government announced that it would seek to hold a compulsory in-person plebiscite on same-sex marriage on the same terms as the Plebiscite (Same-Sex Marriage) Bill 2016, which had been rejected by the Senate in November 2016. (Plebiscite (Same-Sex Marriage) Bill 2016, PARLIAMENT OF AUSTRALIA (last visited Dec. 7, 2017).) However, if this bill failed to pass on a second attempt, a voluntary postal plebiscite would be held instead. (Press Release, Mathias Cormann, Commitment to a National Plebiscite on Same Sex Marriage (Aug. 8, 2017).) The government-initiated motion in the Senate to reopen a debate on the 2016 bill was subsequently defeated on August 9, with a vote of 31-31. (Commonwealth, Parliamentary Proceedings (Hansard), Senate, 5135-5145, 9 August 2017.) On that day, “the Treasurer, under the Census and Statistics Act 1905, directed the Australian Statistician to collect and publish statistical information from all eligible Australians on the Commonwealth Electoral Roll, about their views on whether or not the law should be changed to allow same-sex couples to marry.” (About: Introduction, AUSTRALIAN MARRIAGE LAW POSTAL SURVEY, ABS (last visited Dec. 7, 2017).) The Minister for Finance allocated AU$122 million to the ABS to carry out the survey. (Nicholas Horne & Daniel Weight, Voluntary Postal Poll on Same-Sex Marriage, FLAGPOST (Aug. 10, 2017).)

Those opposed to holding a public vote on the question of same-sex marriage argued that it would be expensive, that there was no guarantee that Parliament would act on the result, and that it risked increasing divisiveness and homophobic rhetoric. They also argued that “human rights issues affecting a minority should be decided by a representative Parliament and that Parliament has not in the past and should not now, abrogate its responsibilities on important human rights issues.” (Mary Anne Neilson, Plebiscite (Same-Sex Marriage) Bill 2016, at 7 (Bills Digest No. 22, 2016-17, Oct. 11, 2016).)

Two actions against the postal survey were brought in the High Court, with the plaintiffs claiming, among others, that the appropriation of public funds for the survey was unlawful and also that the Treasurer did not have authority to direct the ABS to carry out the survey. The Court dismissed one of the cases and rejected the second on its merits on September 7, 2017. (Press Release, High Court of Australia, Andrew Damien Wilkie & Ors v The Commonwealth of Australia & Ors; Australian Marriage Equality Ltd & Anor v Minister for Finance Mathias Cormann & Anor [2017] HCA 40 (Sept. 28, 2017); Melissa Davey & Paul Karp, Same-Sex Marriage Postal Survey Is Lawful, High Court Finds, GUARDIAN (Sept. 7, 2017).)

The survey form was sent to eligible registered voters from September 12, 2017; people had until November 7 to send in their completed forms. The survey form contained one question: should the law be changed to allow same-sex couples to marry?, with respondents instructed to indicate yes or no to it by marking the appropriate response box, and then return the form using the pre-paid envelope.  (Survey Process, AUSTRALIAN MARRIAGE LAW POSTAL SURVEY, ABS (last visited Dec. 8, 2017).) Responses were received from 12,727,920 people, which equated to 79.5% of eligible voters. (About: Introductionsupra.) During the polling period, there were active campaigns for both the “yes” and the “no” votes. (Same-Sex Marriage Survey: ‘Yes’ and ‘No’ Campaigns Ramp Up Across Australia, SBS NEWS (last updated Sept. 23, 2017).)

Consideration of Exposure Draft of the Bill

As part of the preparation for the plebiscite, while the original authorizing legislation was before the Parliament, an exposure draft of a same-sex marriage bill was released by the government for discussion on October 10, 2016.  The Senate voted to establish a select committee to consider the draft legislation, with particular reference to religious freedom. The committee received more than 400 submissions and held three public hearings in different cities. It completed its report on February 15, 2017. (Select Committee on the Exposure Draft of the Marriage Amendment (Same-Sex Marriage) Bill, PARLIAMENT OF AUSTRALIA (last visited Dec. 8, 2017).)

The committee “reached agreement on several issues,” including:

  • ministers of religion should be able to refuse to marry same-sex couples
  • civil marriage celebrants should be required to uphold the law and marry same-sex couples if same-sex marriage is legalised in Australia
  • a separate category of ‘religious marriage celebrant’ should be created to allow marriage celebrants performing ceremonies to refuse to marry same-sex couples on religious grounds
  • that any exemptions for religious organisations in relation to same-sex weddings should be precisely defined. (Neilson, Bills Digest No. 54, supra.)

The committee “did not recommend an exemption from anti-discrimination law for individuals or commercial businesses with a conscientious objection to providing goods and services for same-sex weddings.” (Id.)

Following the select committee’s report, a group of senators worked on developing a bill that was essentially based on the original exposure draft but incorporated the recommendations of the committee. It was this bill that was introduced in November 2017. (Id.)

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United Kingdom: Viagra Made Available as Over-the-Counter Medication

(Dec. 12, 2017) The Medicines and Healthcare Products Regulatory Agency (MHRA), an executive agency of the United Kingdom’s Department of Health responsible for regulating medicines, medical devices, and blood transfusion components, recently assessed whether Viagra Connect should become available as an over-the-counter medicine. At the end of November 2017, the results of the assessment were considered, and the MHRA issued a press release announcing that Viagra Connect (sildenafil 50mg) will be reclassified from a prescription-only medication to one that is available over the counter at pharmacies. This means that the drug may be obtained without a prescription from a doctor by men over 18 years of age who have erectile dysfunction. (Medicines & Healthcare Products Regulatory Agency, Public Assessment Report – Prescription Only Medicine to Pharmacy Medicine Reclassification: Viagra Connect 50mg Film-Coated Tablets, Sildenafil Citrate (PL 00165/0392 – 0001, 2017), MHRA website; Press Release, Medicines and Healthcare Products Regulatory Agency, MHRA Reclassifies Viagra Connect Tablets to a Pharmacy Medicine (Nov. 28, 2017), GOV.UK.)

Since 2006, pharmacists who have taken an additional accredited course and had their entry in the Register of Pharmaceutical Chemists at the Royal Pharmaceutical Society of Great Britain annotated have been able to provide certain medications over the counter that previously were available only with a prescription from a doctor. (The Medicines for Human Use (Prescribing) (Miscellaneous Amendments) Order 2006, SI 2006/915, LEGISLATION.GOV.UK.)

The rationale behind removing the need for a doctor’s appointment to get a prescription for Viagra Connect was to make the medication more easily available to men who may be reluctant to see a doctor about erectile dysfunction and to help reduce the number of individuals purchasing this drug from unregulated online pharmacies, where counterfeit versions of the medication have often been sold. (Buying Fake Viagra Online ‘Russian Roulette,’  BBC News (video report, Sept. 25, 2017).) The MHRA determined that individuals who suffer from a variety of ailments that Viagra Connect could exacerbate, such as cardiovascular disorders, liver failure, or severe kidney failure, or those taking medications that could result in an adverse interaction need to continue to see a doctor in order to obtain Viagra Connect. (Michelle Roberts, Viagra Can Be Sold Over the Counter, BBC News (Nov. 28, 2017).)

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Austria: Same-Sex Couples Allowed to Get Married Starting January 2019

(Dec. 12, 2017) On December 4, 2017, the Austrian Constitutional Court (Verfassungsgerichtshof Österreich, VfGH) struck down the provisions of the Civil Code and the Registered Partnership Act that restrict marriage to persons of different sexes and registered partnerships to persons of the same sex, respectively.  The Court held that the provisions violate the prohibition of discrimination in the equality clause of the Federal Constitutional Law. The annulment of the provisions takes effect on December 31, 2018. The remaining provisions of the Registered Partnership Act will remain in force.  Starting January 1, 2019, same-sex couples and different-sex couples will have the option to choose between a marriage and a registered partnership. (VfGH, Dec. 4, 2017, Docket No. G 258-259/2017-9 (VfGH G 258-259/2017-9), VfGH website (in German); Allgemeines bürgerliches Gesetzbuch für die gesammten deutschen Erbländer der Oesterreichischen Monarchie [ABGB] [Civil Code], JUSTIZGESETZSAMMLUNG [JGS] No. 946/1811, as amended, § 44, Rechtsinformationssystem (RIS) [Legal Information System]; Eingetragene Partnerschaft-Gesetz – EPG) [Federal Act on Registered Partnership (Registered Partnership Act – RPA)], BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I No. 135/2009, § 2, RIS.)

The VfGH held that even though there are no substantial differences between the two legal institutions of marriage and registered partnership in Austria, the fact that two different legal institutions with different names exist constitutes discrimination. (VfGH G 258-259/2017-9, at 11 & 15.) It stated that even though both legal institutions recognize “permanent unions between two equal persons to provide mutual support and consideration,” they are treated unequally. Having two different legal institutions signifies to the public that same-sex relationships are different from different-sex relationships. (Id. at 10 & 16 (translation by author).) Having a different name for the marital status discriminates against same-sex couples by forcing them to reveal their sexual orientation even in situations in which sexual orientation is irrelevant, thereby aggravating the historical discrimination against same-sex couples. (Id.)

Background

The VfGH’s examination of the provisions of the Civil Code and the Registered Partnership Act resulted from a marriage application of a same-sex couple that had been denied by the city of Vienna and the Administrative Court of Vienna. The city and the Court denied the request on the grounds that section 44 of the Civil Code restricts marriage to persons of different sexes. The couple filed a complaint with the Constitutional Court alleging a violation of their right to marry and their rights to equal treatment and nondiscrimination on the grounds of gender and sexual orientation, as guaranteed by the European Convention on Human Rights, the Federal Constitutional Law, and the Basic Law on the General Rights of Nationals; they also alleged a general violation of their rights by the application of an unconstitutional law. (Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), arts. 8, 12, & 14, Nov. 4, 1950, 213 U.N.T.S. 221, European Court of Human Rights website; Bundes-Verfassungsgesetz – B-VG [Federal Constitutional Law], BGBl. No. 1/1930, as amended, art. 7, RIS; Staatsgrundgesetz – StGG [Basic Law on the General Rights of Nationals], REICHSGESETZBLATT [RGBl.] [IMPERIAL LAW GAZETTE] No. 142/1867, art. 2, RIS.)

The VfGH decided to examine the constitutionality of the provisions of the Civil Code and the Registered Partnership Act on its own initiative (ex officio), because it would have had to apply the two laws in connection with addressing the pending complaint by the same-sex couple. (Federal Constitutional Law, art. 140; VfGH, Prüfungsbeschluss [Examination Order], Oct. 12, 2017, Docket No. E 230-231/2016-27, VfGH website.) (See also Jenny Gesley, Austria/European Court of Human Rights: No Discrimination If Heterosexual Couple Is Denied Access to Registered Partnership, GLOBAL LEGAL MONITOR (Nov. 16, 2017).)

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