Davies v State of Victoria [2012] VSC 343 (15 August 2012)
In a landmark decision, Justice Williams of the Supreme Court found that the conduct of a disability support worker in dragging a person with an intellectual disability across a carpeted hallway such as to cause a burn or abrasion constituted “cruel, inhuman or degrading treatment” contrary to section 10(b) of the Charter of Human Rights and Responsibilities.
Read MoreR v Bellusci, 2012 SCC 44 (3 August 2012) Summary
The full bench of Canada's Supreme Court has upheld a trial judge's decision to permanently stay proceedings against a prisoner who was found guilty of threatening to rape a prison guard's wife and children. Because the prisoner was assaulted during the incident, his rights were found to be infringed under the constitutional Canadian Charter of Rights and Freedoms, and a discretionary remedy available under section 24(1) was awarded on this basis.
Read MoreWBM v Chief Commissioner of Police [2012] VSCA 159 (30 July 2012)
In this decision, the Court of Appeal upheld a Supreme Court trial division decision that the Sex Offenders Registration Act 2004 (Vic) applied to a particular offender. Although the Court made the decision without reliance on the Charter, the Court expressed the view that the legislation was compatible with the right to privacy under the Victorian Charter. The decision also considered the definition of the section 13 right to privacy, the role of comparative international human rights jurisprudence under the Charter and the scope of rights protected by the common law principle of legality.
Read MoreMinister of Home Affairs and Others v Tsebe and Others [2012] ZACC 16 (27 July 2012)
A majority of the Constitutional Court of South Africa has refused to extradite two people to Botswana on the basis that the South African Government cannot surrender a person to a country where he or she faces the death penalty without first seeking an assurance that the death penalty would not be imposed. Aptly summarised by Yacoob ADCJ, “this judgment leaves the government in no doubt that deportation, extradition or any form of removal under these circumstances is wholly unacceptable”.
Read MoreRT (Zimbabwe) & Ors (Respondents) v Secretary of State for the Home Department
(Appellant); KM (Zimbabwe) (FC) (Appellant) v Secretary of State for the Home Department (Respondent) [2012] UKSC 38 (25 July 2012)
The Supreme Court of the United Kingdom considered whether an individual who has no political views, and therefore does not support the persecutory regime in his or her home country, is entitled to a claim for asylum where the alternative is to lie and feign loyalty to that regime in order to avoid persecution.
Read MoreÐordević v Croatia [2012] ECHR 1640 (24 July 2012)
The European Court of Human Rights considered an application against the Republic of Croatia lodged by the first applicant, a physically and mentally disabled Croatian national, and the second applicant, his mother and full-time carer. The Court found that there had been a violation of articles 3, 8 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms in respect of both the first and second applicants through the Croatian authorities’ failure to take all reasonable measures to prevent the ongoing abuse of the first applicant by a group of schoolchildren.
Read MoreVictoria Police v Anderson & Ors (2012) Magistrates' Court of Victoria (23 July 2012)
In the Magistrates' Court of Victoria, Magistrate Garnett dismissed charges against the 16 accused for the offences of trespass and besetting premises under the Summary Offences Act 1966 (Vic) (the SOA) in relation to a demonstration that occurred at Max Brenner's chocolate bar in Melbourne. Relevantly, in dismissing the charge of trespass, Magistrate Garnett took into account the protection of the rights to freedom of expression and association under sections 15 and 16 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). This case note focuses in particular on the Charter aspects of the decision.
Read MoreVictoria Police v Anderson & Ors (2012) Magistrates’ Court of Victoria (23 July 2012)
In the Magistrates’ Court of Victoria, Magistrate Garnett dismissed charges against the 16 accused for the offences of trespass and besetting premises under the Summary Offences Act 1966 (Vic) (the SOA) in relation to a demonstration that occurred at Max Brenner’s chocolate bar in Melbourne. Relevantly, in dismissing the charge of trespass, Magistrate Garnett took into account the protection of the rights to freedom of expression and association under sections 15 and 16 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). This case note focuses in particular on the Charter aspects of the decision.
Read MoreKetreb v France [2012] ECHR 1626 (19 July 2012)
In this case, Ketreb v France, the European Court of Human Rights held that there had been a violation of article 2 (right to life) of the European Convention on Human Rights and a violation of article 3 (prohibition of inhuman or degrading treatment) of the Convention. The case concerned the suicide in prison of a drug addict convicted of armed assault. The Court found that the State had failed in its duty to show particular vigilance to prevent a vulnerable prisoner from committing suicide.
Read MoreAir Canada Pilots Association v Kelly and Others, 2012 FCA 209 (17 July 2012)
A full bench of Canada’s Federal Court has found that mandatory age-based retirement schemes are not unlawful under the constitutional Charter of Rights and Freedoms, despite limiting the right to equality. In reaching this conclusion the Court applied earlier precedent which says that mandatory retirement is a justifiable limit on human rights.
Read MoreAli & Anor, R (on the application of) v Minister for the Cabinet Office the Statistics Board [2012] EWHC 1943 (Admin) (13 July 2012)
This decision of the English and Wales High Court considered the right to respect for private and family life and the exceptions to this right. In particular, the High Court considered whether the Statistics Board’s ability to disclose personal information provided to it in the census for the purposes of a criminal investigation or proceedings was incompatible with a person’s Convention right to privacy.
Read MoreMouvement Raelien Suisse v Switzerland [2012] ECHR 1598 (13 July 2012)
This is a decision of the Grand Chamber of the European Court of Human Rights regarding the scope of the right to freedom of expression.
It involves an allegation by the Mouvement Raelien Suisse (Association) that the refusal by the Swiss authorities of the request for the Association to publish its posters in the Neuchatel municipality breached its rights to freedom of religion and freedom of expression, as protected by articles 9 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Read MoreThe England and Wales High Court has held that a discretion held by prison governors to levy deductions from a prisoner’s earnings where the prisoner is working for a private employer on a release scheme outside prison is not incompatible with their human rights having regard to the margin of appreciation afforded to States.
Read MoreDS v Aboriginal Housing Victoria (Unreported, Victorian Civil and Administrative Tribunal, Residential Tenancies List, Member Warren, 3 July 2012)
In a recent decision, the Victorian Civil and Administrative Tribunal considered the Charter rights of an applicant for the creation of a tenancy agreement. The Tribunal found that the application engaged the applicant’s right under sections 13 and 17 of the Victorian Charter, and ultimately ordered the respondent landlord (a social housing provider) to enter a tenancy agreement with the applicant.
Read MoreSodupe v Spain, UN Doc CAT/C/48/D/453/2011 (28 June 2012)
The UN Committee Against Torture has found that Spain had failed to ensure that its courts proceeded to a prompt and impartial investigation, where there is reasonable ground to believe that an act of torture has been committed in its jurisdiction, in violation of article 12 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. However, the Committee found no violation of articles 14 and 15 of the Convention.
Read MoreR (on the Application of RMC and FJ) v Commissioner of Police of the Metropolis [2012] EHWC 1681 (22 June 2012)
In the recent case of R (on the Application of RMC and FJ) v Commissioner of Police of the Metropolis and Others (RMC and FJ), the High Court of England and Wales held that the indefinite retention of photographs of persons who are arrested, but not subsequently prosecuted, breaches the right to private life protected in article 8 of the European Convention on Human Rights. The case applies and extends the earlier European Court of Human Rights decision of S v United Kingdom (2009) 48 EHRR 50, which concerned the retention of DNA samples and fingerprints.
Read MoreA & S (Children) v Lancashire County Council [2012] EWHC 1689 (Fam) (21 June 2012)
In this case, brothers aged 16 and 14 took action under the Human Rights Act 1998 (UK) in relation to their treatment while in the care of the Lancashire County Council. The England and Wales High Court declared that the Council and one of its employees, an Independent Reporting Officer, had acted incompatibly with the boys’ right to respect for private and family life, their right to a fair trial and the prohibition of torture.
Read MoreSullivan v The Government of the United States of America & Anor [2012] EWHC 1680 (20 June 2012)
The appellant appealed to the England and Wales High Court against orders for his extradition to the United States to be prosecuted for sexual offences. Lord Justice Moses held that the extradition would expose the appellant to a real risk of detainment under the Minnesota “civil commitment” program, which would amount to a flagrant denial of his rights under article 5.1 (deprivation of liberty) of the European Convention on Human Rights.
Read MoreAtasoy and Sarkut v Turkey, UN Doc CCPR/C/104/D/1853-1854/2008 (19 June 2012)
The UN Human Right Committee recently decided that Turkey’s actions in response to Atasoy and Sarkut’s refusal to be drafted for compulsory military service on grounds of conscientious objection was incompatible with article 18 of the International Covenant on Civil and Political Rights.
Read MoreG v Germany [2012] ECHR 956 (7 June 2012)
The European Court of Human Rights has unanimously held that Germany violated the prohibition under article 7(1) of the European Convention on Human Rights on imposing a penalty heavier than that which existed at the time of the offence, by imposing a period of retrospective preventive detention.
Read MoreMounted Police Association of Ontario v Canada, 2012 ONCA 363 (1 June 2012)
In Mounted Police Association of Ontario v Canada, the Ontario Court of Appeal considered the scope of the freedom of association under section 2(d) of the Canadian Charter of Rights and Freedoms. The question for the Court was whether a statutory employee relations regime imposed on the Royal Canadian Mounted Police violated section 2(d) of the Charter. Justice Juriansz, with whom Justices Doherty and Rosenberg agreed, held that this statutory regime did not make it impossible for members of the Police to exercise their fundamental freedom of association. Consistent with this freedom, Police members were able to form independent employee associations to collectively achieve their workplace goals.
Read MoreGamarra v Paraguay, UN Doc CCPR/C/104/D/1829/2008 (30 May 2012)
The UN Human Rights Committee has found that the use of force by the Paraguay police against peaceful demonstrators was disproportionate, constituting a violation of article 7 of the International Covenant on Civil and Political Rights. Paraguay was also found to have contravened article 2, paragraph 3 of the Covenant by depriving the demonstrators with access to an effective remedy in relation to the human rights violations.
Read MoreR v Wayne Michael Connors [2012] ACTSC 80 (28 May 2012)
Chief Justice Higgins of the ACT Supreme Court has rejected claims made by Mr Connors that a bail condition requiring he undergo urinalysis (urine testing) to enforce abstinence from illicit drugs was beyond the powers conferred by section 25 of the Bail Act 1992 (ACT). The court confirmed that the bail conditions did not breach Mr Connors’ right to privacy under section 12 of the Human Rights Act 2004 (ACT).
Read MoreCentre for Addiction and Mental Health v Ontario, 2012 ONCA 342 (24 May 2012)
The Court of Appeal for Ontario allowed an appeal by the Centre for Addiction and Mental Health and another setting aside an order of the trial judge requiring immediate treatment of a mentally ill prisoner to be conducted at the Centre. The Court held that while to delay such treatment on the basis that there was not sufficient space at the Centre for the prisoner would undoubtedly be a deprivation of life, liberty and security of his person per article 7 of the Canadian Charter of Rights and Freedoms, to do so nonetheless came within the fundamental justice exception to that article.
Read MoreScoppola v Italy (No 3) [2012] ECHR 868 (22 May 2012)
In this decision, the European Court of Human Rights found that an Italian legislative regime that disenfranchised persons who had been convicted of specific offences and persons sentenced to terms of imprisonment greater than three years did not contravene article 3 of Protocol No 1 to the European Convention on Human Rights, which protects the right to vote.
Read MoreHM v Sweden, UN Doc CRPD/C/7/D/3/2011 (21 May 2012)
HM v Sweden is the first decision of the UN Committee on the Rights of Persons with Disabilities. The Committee found that a State party may violate the Convention on the Rights of Persons with Disabilities if it fails to consider an individual’s particular health circumstances in applying its national laws, resulting in discrimination on the grounds of that individual’s disability.
Read MoreMM and AO (A Child), R (on the application of) v Secretary of State for the Home Department [2012] EWCA Civ 668 (18 May 2012)
This case adds to pre-existing UK and European authority about the circumstances in which an investigation of an allegation of torture or ill-treatment will be required. In this particular case, an intervention to stop a protest at an immigration detention centre caused such physical and psychological harm that a claim of ill-treatment was raised. The question was thus to what extent, especially in cases involving children, an independent investigation was required beyond procedures already in place.
Read MoreMattu v University Hospitals of Coventry and Warwickshire NHS Trust [2012] EWCA Civ 641 (18 May 2012)
The England and Wales Court of Appeal has found that a disciplinary process which resulted in the dismissal of an employee did not engage that employee’s civil rights under the European Convention of Human Rights. Thus, the employer was not bound by the obligations to provide a fair hearing under the Convention.
Read MoreBurnip v Birmingham City Council & Anor (Rev 1) [2012] EWCA Civ 629 (15 May 2012)
Due to severe disabilities, the applicants required extra bedrooms to accommodate their special needs. However, their housing benefits were only calculated based on what would reasonably be required for able-bodied person. The applicants successfully argued before the England and Wales Court of Appeal that this breached their right to freedom from discrimination.
Read MoreNoone, Director of Consumer Affairs Victoria v Operation Smile (Australia) Inc & Ors [2012] VSCA 91 (11 May 2012)
The Court of Appeal has found that operators of a complementary medicine centre specialising in treatment of cancer engaged in misleading or deceptive conduct in trade or commerce in making representations about the efficacy of their treatments. In so doing, the Court overturned a Supreme Court decision. In the decision, the Court considers the relationship between freedom of expression, as protected in the Victorian Charter, and misleading and deceptive conduct.
Read MoreM.S. v United Kingdom [2012] ECHR 804 (3 May 2012)
The European Court of Human Rights has found that a delay in securing appropriate psychiatric treatment for a man who was detained by police constituted “degrading treatment” in breach of article 3 of the European Convention, notwithstanding that the police officers and medical staff involved did not intend to debase or humiliate the man.
Read MoreUnited Food and Commercial Workers, Local 401 v Alberta (Attorney General), 2012 ABCA 130 (30 April 2012)
This decision of the Court of Appeal of Alberta considered the scope of the right to freedom of expression in the Canadian Charter of Rights and Freedoms. This was considered in the context of whether a union had the right to collect and distribute images of people crossing a picket line.
This appeal was brought by the Attorney General of Alberta who argued that the union's collection and use of the images constituted a breach of privacy.
Read MoreDe Almeida, R (on the application of) v Royal Borough of Kensington and Chelsea [2012] EWHC 1082 (Admin) (27 April 2012)
The England and Wales High Court decided that the decision of the Royal Borough of Kensington and Chelsea to deny a terminally ill Portuguese man care and assistance, and to deport him, was a breach of his right to freedom from ill-treatment and his right to respect for his private life protected by articles 3 and 8 of the European Convention of Human Rights.
Read MoreThe Queen (on the application of Medihani) v HM Coroner for Inner South District of Greater London [2012] EWHC 1104
The High Court of England and Wales held that the decision of the District Coroner to close down an inquest into the death of a teenager was unreasonable and unlawful. This error of law resulted from the Coroner’s failure to consider the obligations of the Metropolitan Police under article 2 of the European Convention on Human Rights, which protects the right to life.
Read MoreCecilia Kell v Canada, UN Doc CEDAW/C/51/D/19/2008 (26 April 2012)
The UN Committee on the Elimination of Discrimination against Women has found that Canada violated the rights of an Aboriginal woman by failing to prevent her eviction or dispossession of a house.
Read MoreAustralia is flagrantly violating its international human rights obligations and undermining the rule of law by refusing to abide by a decision of the United Nations Human Rights Committee – the world’s highest expert human rights body. In the landmark decision of Nystrom v Australia issued in September 2011, the Committee held that Australia violated the human rights of a permanent resident, Stefan Nystrom, by deporting him to Sweden.
Read MoreLondon Christian Radio & Anor, R (on the application of) v Radio Advertising Clearance Centre & Anor [2012] EWHC 1043 (Admin) (20 April 2012)
The England and Wales High Court held that a statutory prohibition against political advertising did not infringe the right to freedom of expression under article 10 of the European Convention on Human Rights. The Court held that the Radio Advertising Clearance Centre acted lawfully in refusing clearance for a proposed radio advertisement that requested information to “inform public debate” and “help make a fairer society” as the advertisement was directed towards a political end and thus in contravention of the statutory prohibition.
Read MoreHA (Nigeria), R (on the application of) v Secretary of State for the Home Department [2012] EWHC 979 (Admin) (17 April 2012)
The High Court of England and Wales considered the detention of a Nigerian asylum seeker who was suffering serious mental health difficulties whilst in detention
Read MoreRKB v Turkey, UN Doc CEDAW/C/51/D/28/2010 (13 April 2012)
The UN Committee on the Elimination of Discrimination against Women has found that the termination of a woman from employment on the basis of her alleged extramarital affair – in circumstances where her male co-worker was not terminated – violated the right to equality and the prohibition against wrongful gender stereotyping.
Read MoreR v Tse [2012] SCC 16 (13 April 2012)
The Supreme Court of Canada has affirmed the importance of the right to privacy, ruling unanimously that section 184.4 of the Criminal Code R.S.C 1985, which permits emergency wiretapping without a warrant, is unconstitutional. The court weighed the rights entrenched in the Canadian Charter of Rights and Freedoms against society's interest in preventing serious harm and declared section 184.4 to be constitutionally invalid. The declaration was suspended for a period of 12 months to provide Parliament an opportunity to redraft the provision in a way that strikes an appropriate constitutional balance.
Read MoreBabar Ahmad & Ors v United Kingdom [2012] ECHR 609 (10 April 2012)
The European Court of Human Rights was required to consider applications by six men facing extradition from the United Kingdom to the United States on terrorism related charges. The decision of the Court in the case of Babar Ahmad and Others v The United Kingdom indicates the approach the court is taking to the interpretation of article 3 rights under the European Convention on Human Rights. In this case, the Court confirmed that extradition to the US was not a breach of the suspects’ human rights.
Read MoreDawas v Denmark, UN Doc CERD/C/80/D/46/2009 (2 April 2012)
The UN Committee on the Elimination of Racial Discrimination was asked to consider whether the Applicants’ rights under articles 2 (prevention of racial discrimination) and 6 (effective preventions and remedies) of the Convention on the Elimination of All Forms of Racial Discrimination had been breached by Denmark’s failure to investigate the racist character of an attack on the Applicants and to prosecute the attackers on the basis that their alleged crimes had a racist character. The Committee held that various deficiencies in Denmark’s investigation of the attack and its prosecution of the attackers gave rise to contraventions of articles 2 and 6.
Read MoreForrest v Attorney-General [2012] NZCA 125 (2 April 2012)
The New Zealand Court of Appeal has awarded $600 in compensation to a prisoner who experienced two unlawful strip searches in the same day.
Read MoreBAE Systems Australia Limited (Anti-Discrimination Exemption) [2012] VCAT 349 (28 March 2012)
In a recent application for an exemption under the Equal Opportunity Act 2010 (Vic) (EO Act), Member Dea of the Victorian Civil and Administrative Tribunal has considered the interaction between the right to equality under the EO Act and the Victorian Charter of Human Rights and Responsibilities.
Read MoreClarke v Nationwide News Pty Ltd trading as The Sunday Times [2012] FCA 307 (27 March 2012)
Justice Barker in the Federal Court held that Nationwide News, the publisher of The Sunday Times newspaper in Perth, was liable under section 18C of the Racial Discrimination Act 1975 (Cth) (RDA) for comments posted by readers underneath articles in the online version of the paper, which amounted to racial vilification.
Read MoreKing & Ors, R (on the application of) v Secretary of State for Justice [2012] EWCA Civ 376 (27 March 2012)
This case concerned three separate appeals challenging the legality of cellular confinement and segregation procedures, imposed on prisoners who were serving custodial sentences.
Read MoreCanada (Attorney General) v Bedford, 2012 ONCA 186 (26 March 2012)
The Ontario Court of Appeal considered the legality of certain restrictions on prostitution – a lawful activity in Canada. It held that provisions which prevent prostitutes from taking measures to secure their safety, and substantially increase their risk of harm, contravene the right to liberty and security of the person under section 7 of the Canadian Charter of Rights and Freedoms.
Read MoreCanada (Attorney General) v Bedford, 2012 ONCA 186 (26 March 2012)
The Ontario Court of Appeal considered the legality of certain restrictions on prostitution – a lawful activity in Canada. It held that provisions which prevent prostitutes from taking measures to secure their safety, and substantially increase their risk of harm, contravene the right to liberty and security of the person under section 7 of the Canadian Charter of Rights and Freedoms.
Read MoreMinister of Correctional Services v Lee (316/11) [2012] ZASCA 23 (23 March 2012)
In this case the Supreme Court of Appeal in South Africa ruled that while prison authorities failed to take reasonable measures to prevent the contraction of tuberculosis in custody, causation was not made out and therefore the State was not liable.
Read MoreR v Dennis Michael Nona [2012] ACTSC 41 (23 March 2012)
In R v Nona the ACT Supreme Court considered the right to a fair trial without unreasonable delay in the context of whether or not to stay criminal proceedings. The key issues related to a breach of a statutory human right and the appropriate remedy for that breach. While the court found that the right to a trial without unreasonable delay had been breached, it considered that a declaration would be an appropriate remedy rather than a permanent stay. This decision is important because it discusses the relevance of section 30 (interpretation of laws and human rights) of the Human Rights Act 2004 (ACT) (HRA) when interpreting ACT legislation, and the common law and statutory principles of undue delay.
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