ECHR finds UK in violation of the Convention for the Protection of Human Rights and Fundamental Freedoms for depriving an asylum seeker of their liberty unlawfully

Case of V.M. v United Kingdom (Application No. 49734/12) [2016] ECHR (1 September 2016)

The European Court of Human Rights (“the Court”) finds in favour of a Nigerian asylum seeker, who was detained pending deportation, against the United Kingdom and Northern Ireland for violations of article 5 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which enshrines the right to liberty and security of the person.

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Judicial misunderstanding of bisexuality leads to dangerous ruling on protection claim for Jamaican man seeking asylum

Ray Fuller v Loretta E Lynch, Attorney General of the United States, 833 F.3d 866 (7th Cir, 2016)

The United States Court of Appeals for the Seventh Circuit has refused to review the case of a person seeking asylum, despite the man's fear of persecution should he be returned to Jamaica. Ray Fuller testified that he identified as bisexual and there was evidence he was at risk of harassment and torture.

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Scotland's Named Persons Scheme: balancing children's welfare against privacy rights

Case of The Christian Institute and others v The Lord Advocate (Scotland) [2016] UKSC 51 (28 July 2016)

In a recent judgment, the United Kingdom Supreme Court unanimously blocked the introduction of the Scottish Government's Named Persons scheme (Scheme), due to its incompatibility with article 8 (right to private and family life) of the European Convention on Human Rights (ECHR). The Scheme was part of a package of child welfare measures introduced under the Children and Young People (Scotland) Act 2014 (the Act).

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High Court rules on Department of Immigration 'data breach' cases

Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29 (27 July 2016)

On 10 February 2014 the Department of Immigration and Border Protection inadvertently published on its website the identifying details of 9,258 applicants for protection visas held in immigration detention (“Data Breach”). The Data Breach carried the risk that authorities in the named detainees’ countries of origin would become aware that they had sought protection in Australia, creating a new and independent risk of harm if those detainees were returned to those countries. The Department conducted International Treaties Obligations Assessments (“ITOAs”) to determine if the Data Breach affected Australia’s non-refoulement obligations with respect to the detainees.

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Colombian Constitutional Court invalidates mining policy for violating fundamental rights of Indigenous and Afrocolombian peoples

Sentence T-766 of 2015 (Constitutional Court of Columbia)

The Colombian Constitutional Court recently invalidated ‘strategic mining areas’ (SMA) which would have made mining concessions over almost 20% of the country available by tender, because they violated the rights of Indigenous and Afrocolombian peoples to prior consultation.

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ECHR confirms that right to freedom of expression breached in taking action against prisoners for making complaints

Case of Shahanov and Palfreeman v Bulgaria (Application nos. 35365/12 and 69125/12) [2016] ECHR 686 (21 July 2016)

The applicants, Mr Shahanov and Mr Palfreeman, are currently serving extended prison sentences in Bulgaria's Plovdiv and Sofia Prisons. Both applicants commenced proceedings against the Republic of Bulgaria in the European Court of Human Rights (ECHR) in 2012. The ECHR subsequently joined the proceedings due to their similarity.

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ECHR finds failure to recognise parents of children born as a result of international commercial surrogacy violates the right to privacy

Case of Foulon and Bouvet v France (Application No’s 9063/14 and 10410/14) (21 July 2016) 

The European Court of Human Rights (the Court) has delivered a judgment protecting the rights of children born as a result of international commercial surrogacy to have their relationships with their biological parents legally recognised. The Court unanimously found that refusal by French authorities to transcribe the birth certificates of children born under surrogacy agreements in India violated the children's right to respect for private life under Article 8 of the European Convention on Human Rights (the Convention). The judgment resolves past uncertainty as to whether the Court's earlier decisions on surrogacy would extend to same-sex families.

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Texas voter ID law found to have disparate impact

Veasey v Abbott No. 14-41127, 2016 WL 3923868 (5th Cir. July 20, 2016)

A US federal court has handed civil rights groups a crucial win ahead of this year's presidential election after ruling that Texas’ restrictive voting legislation has a discriminatory effect on Hispanic and African American voters. The 2011 law requires voters to produce one of a limited number of forms of identification and is the nation’s strictest voter photo ID law, leaving more than half a million eligible voters unable to fully participate in the democratic process. The recent ruling will require that measures are taken to allow disenfranchised voters to participate in this November’s US presidential election.

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UK Supreme Court rejects Lord Chancellor's attempt to limit legal aid availability

R (on the application of The Public Law Project) (Appellant) v Lord Chancellor (Respondent) [2016] UKSC 39

In the recent decision of R v Lord Chancellor [2016] UKSC 39, the UK Supreme Court has rejected an attempt by the Lord Chancellor to limit the availability of legal aid on the basis of citizenship and continuous residence in the UK, concluding this was outside the Lord Chancellor's power.

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European Court of Human Rights holds that the immigration detention of LGBTI refugee contravened Article 5(1) of the Convention

Case of O.M. v. Hungary  (Application numbers 9912/15) [2016] ECHR (5 July 2016)

The European Court of Human Rights (ECHR) has held that immigration detention of an LGBTI Iranian person seeking asylum in Hungary contravened article 5(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention).

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Canadian law society’s decision to refuse accreditation due to discriminatory policy reasonable

Trinity Western University v The Law Society of Upper Canada [2016] ONCA 518

The Court of Appeal for Ontario has upheld a lower court’s decision to dismiss an application for judicial review of the Law Society of Upper Canada’s (LSUC) decision to refuse accreditation to an evangelical Christian law school. The Court reviewed the LSUC’s decision by reference to the standard of reasonableness and held that, in making its decision, the LSUC reasonably balanced the appellants’ rights to religious freedom against its statutory objective of protecting the ‘public interest’.

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Canadian law society's decision to refuse accreditation due to discriminatory policy reasonable

The Court of Appeal for Ontario has upheld a lower court's decision to dismiss an application for judicial review of the Law Society of Upper Canada's (LSUC) decision to refuse accreditation to an evangelical Christian law school. The Court reviewed the LSUC's decision by reference to the standard of reasonableness and held that, in making its decision, the LSUC reasonably balanced the appellants' rights to religious freedom against its statutory objective of protecting the 'public interest'.

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MichelleBennett
Obama’s deferred action immigration policy put on hold by ‘equally divided’ United States Supreme Court

United States v Texas 579 U. S. ____ (2016)

The United States Supreme Court made a four-four split decision in a nine word judgement over the legality of President Obama’s deferred action immigration program. This upholds the United States Court of Appeals for the Fifth Circuit's decision to maintain a nationwide injunction preventing implementation of the Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA) and the expansion of the 2012 Deferred Action for Childhood Arrivals program (DACA).

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ECHR finding that UN sanctions in Switzerland incompatible with international human rights

Case of Al-Dulimi and Montana Management Inc v Switzerland (Application no. 5809/08) (21 June 2016) 

The Grand Chamber of the European Court of Human Rights has delivered another decision in the long line of cases dealing with the relationship between sanctions by the United Nations Security Council (UN Security Council), and international human rights. By 15 votes to 2, the Grand Chamber found that Swiss courts did not provide meaningful judicial review of the applicant’s sanctions listings by the Sanctions Committee of the Security Council (Sanctions Committee). It therefore found a violation of Article 6(1) of the European Convention of Human Rights (ECHR).  In doing so the Grand Chamber upheld the presumption, highlighted in previous cases that Security Council sanctions are to be interpreted on the basis that they are compatible with international human rights.

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Human Rights Committee finds against Ireland for restrictive abortion laws

Mellet v Ireland (Views adopted by the Committee under article 5(4) of the Optional Protocol, concerning communication No. 2324/2013)

In March 2016, the Human Rights Committee (Committee), which monitors the implementation of the International Covenant on Civil and Political Rights (ICCPR), determined that Irish laws that forced a woman whose foetus had congenital heart defects (and a low chance of survival) to procure an abortion overseas contravened the ICCPR.  The Committee determined that Articles 7 (privacy), 17 (cruel, inhuman and degrading treatment) and 26 (equality before the law) of the ICCPR were violated and the Irish government should pay compensation to the claimant and provide her with needed psychological treatment.  The Committee also recommended that Ireland amend its laws on voluntary termination, and if necessary its constitution, to ensure compliance with the ICCPR and prevent similar violations occurring.

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The right to privacy in the internet age: PJS v News Group Newspapers

PJS v News Group Newspapers Ltd [2016] UKSC 26

A married celebrity had a threesome. His partner wasn’t one of the three. The affair was published widely on the internet outside the UK. A UK newspaper wanted to publish the story too. Demonstrating that it takes the right to privacy seriously in the age of the internet, the Supreme Court in May 2016 upheld an injunction preventing the publication of the story in the UK.

The decision confirms that the right to privacy protects not just secrecy, but intrusion into private life. Therefore the fact that the information was already publicly accessible was not fatal – the injunction would prevent additional intrusion and harm to the applicant and his family caused by print publication.

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European Court of Human Rights confirms that Article 5 of the Convention does not require maximum time limits on immigration detention

Case of J.N. v The United Kingdom (Application no. 37289/12) [2016] ECHR 434 (19 May 2016)

The United Kingdom remains the only EU Member State which does not impose a statutory time limit on immigration detention prior to deportation.  A challenge to that position was recently heard before the European Court of Human Rights.  While the Court acknowledged that such time limits may be preferable, it concluded that the absence of a fixed time limit does not, in itself, render the UK’s immigration detention system incompatible with Article 5(1)(f) of the Convention for the Protection of Human Rights and Fundamental Freedoms (Convention).

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Minister for Immigration required to facilitate safe and lawful abortion for asylum seeker woman

Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483

The Commonwealth Government has a duty of care to facilitate a safe and lawful abortion for a refugee who was sexually assaulted while on Nauru awaiting resettlement. The court’s  orders included an injunction to restrain the Minister from procuring an abortion for the applicant in Papua New Guinea (‘PNG’), but did not require the Minister to bring  the applicant to Australia.

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Preventing serious physical and mental harm: Queensland Supreme Court authorises 12-year-old to undergo abortion

Central Queensland Hospital and Health Service v Q [2016] QSC 89

On 20 April 2016, the Central Queensland Hospital and Health Service (“CQHHS”) applied to the Supreme Court of Queensland seeking orders authorising the termination of 12-year-old “Q’s” pregnancy.  Exercising the Court’s parens patriae jurisdiction, McMeekin J held that that the termination of Q’s pregnancy was necessary to avoid danger to Q’s mental and physical health, and was therefore lawful.  

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High Court decision confirms high standard of evidence required to prove an intent to transmit HIV

Zaburoni v The Queen [2016] HCA 12 (6 April 2016)

The High Court has unanimously allowed an appeal against a decision of the Queensland Court of Appeal, in relation to the criminal offence of intentionally transmitting HIV to another person.

The decision provides further guidance as to when evidence of a person’s awareness of risk, and foresight of the consequences of his actions, will suffice to prove criminal intent.   

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MichelleBennettHealth
European Court of Human Rights finds investigation into innocent man’s death was procedurally sound

Da Silva v United Kingdom (no. 5878/08) (30 March 2016)

After a young Brazilian man was mistakenly shot and killed by UK police in 2005, the Grand Chamber of the European Court of Human Rights (Court) has found that the manner in which the investigation into the shooting was conducted did not constitute a breach of the procedural duty contained in the European Convention for the Protection of Human Rights and Fundamental Freedoms (Convention).  In particular, the Court concluded that the decision not to prosecute any individual officer was not due to any failing in the investigation or any unlawful acts.  Rather, it was due to the fact that the prosecutor had considered all of the facts and concluded that there was insufficient evidence against any individual officer to prosecute.

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MichelleBennett
Tribunal confirms housing provider is subject to the Charter of Human Rights and Responsibilities

Goode v Common Equity Housing Limited (Human Rights) [2016] VCAT 93

The Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) requires public authorities to give proper consideration to, and act compatibly with, the human rights set out in the Charter. The Victorian Civil and Administrative Tribunal (VCAT) recently held that a registered housing association was subject to the Charter when providing social housing.

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Three convicted and sentenced in Australia’s first female genital mutilation trial

R v A2; R v KM; R v Vaziri (No. 23) [2016] NSWSC 282 (18 March 2016)

The first three people in New South Wales to stand trial for female genital mutilation (FGM) related offences have been convicted and sentenced. Following a nine week trial, and a series of pre-trial applications dealing with evidentiary and procedural questions including the compellability of the child victims to give evidence for the prosecution against their mother (one of the defendants), the defendants were convicted of offences under section 45 of the Crimes Act 1900 (NSW) (the Act). Each was sentenced to 15 months’ imprisonment (with a non-parole period of 11 months) and referred for assessment as to suitability for home detention.

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Supreme Court criticises Queensland Parole Board for egregious errors, in relying on “high security” classification and disregarding evidence

Abbott v Queensland Parole Board [2016] QSC 22 (24 February 2016)

The Supreme Court of Queensland has set aside a decision to refuse parole to one of Australia’s most high-profile ‘high security’ prisoners, highlighting that any refusal of parole because of a prisoner’s custodial misconduct must be closely supported by evidence, rather than inferences to that effect. 

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Not guilty by association – Supreme Court UK and Privy Council landmark decision clarifies the mental element required for secondary criminal liability

R v Jogee and Ruddock v The Queen [2016] UKSC 8; [2016] UKPC 7 (18 February 2016)

It is a fundamental principle of criminal law in many jurisdictions that a person who assists or encourages another to commit a crime (an accessory) is guilty of the same offence as the principal offender. The case of Chan Wing-Siu v The Queen [1985] AC 168 introduced a new principle widening the application of the law of secondary liability whereby if two people set out to commit an offence (crime A), and in the course of that joint enterprise one of them (D1) commits another offence (crime B), the second person (D2) is nevertheless guilty as an accessory to crime B if he had foreseen the possibility that D1 might act as they did. This principle is commonly referred to as ‘parasitic accessory liability’ or ‘joint enterprise liability’.

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MichelleBennettOther
High Court rejects challenge to offshore detention

Plaintiff M68/2015 [2016] HCA 1 (3 February 2016)

In a highly anticipated decision the High Court has rejected a constitutional challenge to the Federal Government’s regional processing framework. The majority of the Court held that s198AHA of the Migration Act 1958 (Cth) (Act) authorised the Commonwealth Government’s participation in the plaintiff’s detention. This decision was made after retrospective legislation was introduced after the case was filed with retrospective operation.

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Flawed funding found to be discrimination against First Nations children and families

First Nations Child and Family Caring Society of Canada et al. v Attorney General of Canada [2016] CHRT 2 (26 January 2016)

In a significant decision handed down by the Canadian Human Rights Tribunal, it was found that the Canadian Government discriminated against First Nations children and families living on reserve and in the Yukon Territory by failing to provide them with equitable child welfare services.

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Queensland Family Court approves sterilising surgery on 5 year old intersex child

Re: Carla (Medical Procedure) [2016] FamCA 7

The Family Court in Queensland made an order authorising the parents of a five year old girl to consent to her undergoing certain medical procedures, including a gonadectomy, and held that court authorisation of this medical treatment was unnecessary. This case raises serious human rights implications about oversight of medical treatment on intersex children in Australia.

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HRLC Admin
Police had power to question journalists in contact with whistle blower Edward Snowden

Regina (David Miranda) v Secretary of State for the Home Department; Commissioner of Police of the Metropolis [2016] EWCA Civ 6

The UK Court of Appeal has upheld the exercise of a police power under Schedule 7 of the Terrorism Act 2000 (UK) (the Act) to stop and question a person to determine whether they are or have been 'concerned in the commission, preparation or instigation of acts of terrorism'. Importantly, the Court has also declared that Schedule 7 is incompatible with the right to freedom of expression under article 10 of the European Convention of Human Rights (the Convention), insofar as it applies to journalistic material.

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Right to Privacy: Messaging your friends at work? You may be watched

Case of Bărbulescu v Romania (Application no. 61496/08) (12 January 2016)

Bǎrbulescu v Romania concerns an employee challenging his termination based on his use of his work computer for personal communication. The European Court of Human Rights (ECHR) held by 6 votes to 1 that although Mr Bǎrbulescu’s employer reading his personal Yahoo Messenger messages was an interference with his right to respect for private life and correspondence within the meaning of Article 8 of the European Convention on Human Rights, the right was not violated as the interference was limited in scope and proportionate.

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MichelleBennettPrivacy