In Victoria’s first guideline judgment the Court of Appeal stated that the availability of community correction orders (CCOs) dramatically changes the sentencing landscape. The Court of Appeal unanimously held that CCOs enable punitive and rehabilitative sentencing purposes to be served simultaneously, positing CCOs as punitive non-custodial sentences.
Read MoreThe Supreme Court of Victoria found that while the police did have the power to conduct a random stop and license check of Mr Kaba, the officers’ subsequent coercive questioning of him disproportionately limited his rights to privacy and freedom of movement under the Victorian Charter and was therefore unlawful.
Read MoreThe Supreme Court of the ACT has found that the Wreck Bay Aboriginal Community Council (WBACC) did not meet the definition of a public authority pursuant to s 40 of the Human Rights Act 2004 (ACT) (HRA) and therefore it did not need to take into account human rights considerations in its decision to evict the plaintiffs.
Read MoreThe Supreme Court held that right to conscientious objection in the Abortion Act 1967 (UK) does not extend to delegating to, supervising or supporting staff who are taking part in the termination of a pregnancy. In making its decision, the Supreme Court took a strict statutory interpretation approach, holding that broader policy arguments and Article 9 of the European Convention on Human Rights were extraneous to that enquiry.
Read MoreThe Supreme Court confirmed that when the Mental Health Review Board discharges a patient from involuntary treatment, there must be a change in circumstances before a doctor can make a new involuntary treatment order.
Read MoreMacaulay J held that in making the decision to apply for a warrant of possession:
His Honour made a declaration that the decision to apply for the warrant was and is of no legal force or effect, and was unlawful by reason of s 39(1) of the Charter [248]. He invited further submissions as to any further orders that should follow from his findings.
Read MoreThe European Court of Justice examined Dutch authorities’ assessment of the credibility of men seeking asylum on the basis of feared persecution because of their declared homosexuality. The Court found that assessment of the credibility of a person’s claim to be homosexual should be sensitive to individual circumstances, not based on stereotypes, and consistent with fundamental human rights.
Read MoreThe Supreme Court has confirmed that a person seeking redress for a breach of the Charter of Human Rights and Responsibilities Act 2006 (Vic) is able to obtain relief or remedy based on Charter unlawfulness, even where their non-Charter claim is unsuccessful or not determined.
Read MoreThe High Court has upheld new offence-creating provisions of the Criminal Code Act 1899 (Qld) and new provisions of the Liquor Act 1992 (Qld), introduced as part of a package of legislation intended to deter criminal gangs and criminal organisations, including criminal motor cycle gangs.
In relation to other provisions enacted, the Court found that the plaintiff, a Hells Angel, did not have standing as he had not been charged with a relevant offence and did not contend that he intended or was likely to commit one. Accordingly, his exposure to increased penalties or bail consequences did not constrain his freedom to act.
Read MoreThe Constitutional Court of South Africa (‘Court’) has found that the South African Police Service (‘SAPS’) is permitted under international law and has a duty under domestic law to investigate allegations of torture committed in Zimbabwe by and against Zimbabwean nationals, despite none of the suspects being present in South Africa.
Read MoreThe Victorian Civil and Administrative Tribunal has declared that a local council breached a resident’s human rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’) when it banned him from accessing its buildings. The Tribunal’s declaration was part of its orders about the appropriate remedy in a claim of discrimination under the Equal Opportunity Act 2010 (Vic) (‘EOA’).
Read MoreOn 10 October 2014, the Supreme Court of Canada dismissed proceedings brought by the son of a woman tortured in Iran against the Iranian head of state and two other public officials. The Court held that the Iranian officials were immune from the jurisdiction of Canadian courts by virtue of the State Immunity Act RSC 1985, c. S-18 (‘SIA’). In particular, the operation of the SIA does not deprive a person of a right to a fair hearing in accordance with the principles of fundamental justice, nor does it impinge on the right not to be deprived of life, liberty and security of the person
Read MoreThe Full Court of the Federal Court has dismissed an appeal against a decision in favour of the City of Melbourne regarding the Occupy Melbourne protests in 2011.
The decision has implications for how the Charter of Human Rights and Responsibilities Act 2006 applies to public authorities as the Court confirmed the primary decision that the Charter’s obligation ‘to act’ compatibly with human rights does not apply to the making of local laws by a council. In relation to the removal of Ms Kerrison’s “tent dress” at the protest, which was not considered in the primary decision, the Court found the council officers did not breach the right to freedom of expression.
Read MoreThe European Court of Human Rights (‘Court’) has held that a failure to allow the Church of Scientology to register in Russia was in breach of the rights to freedom of religion and freedom of association which are protected under the European Convention on Human Rights (‘Convention’). Russian law required religious groups to be present in Russia for 15 years before applying to be registered. The lack of precision and clarity in the legislation, which, in this case, allowed the Russia Government to delay registration for more than 10 years, rendered the interference unlawful. As for the 15 year requirement, the Court, in obiter, held that such a requirement lacked a legitimate aim
Read MoreThe UK High Court of Justice has dismissed an application seeking judicial review of a decision made by Leicester City Council to close a Council run aged care home. In reaching this decision, Sir Stephen Silber (sitting as a High Court Judge) confirmed that when determining an alleged infringement of a Convention right the enquiry must be whether rights have been violated rather than if they will or may be violated. His Honour also confirmed that the Public Sector Equality Duty (‘PSED’), contained in the Equality Act 2010 (UK) (‘EA’), 'is not a back door by which challenges to the factual merits of the decision may be made'.
Read MoreIn September 2014, the Grand Chamber of the European Court of Human Rights held that the deprivation of liberty in the context of international armed conflict that is consistent with the four Geneva Conventions does not violate article 5 of the EU Convention, which seeks to safeguard liberty and security.
Read MoreThe High Court unanimously held invalid the grant by the Minister for Immigration and Border Protection of a temporary safe haven visa to the plaintiff – a stateless asylum seeker – which had the effect of precluding the plaintiff from making a valid application for a protection visa, in circumstances where the plaintiff’s detention had been prolonged for the purpose of the Minister considering the exercise of power to allow the plaintiff to make a valid application for a visa of his choice.
Read MoreThe European Court of Human Rights (ECHR) has found that the extradition by the Belgian Government of a Tunisian national, Mr Trabelsi, from Belgium to the United States (US), where he was to be prosecuted on charges of terrorist offences and liable to be sentenced to life in prison, was a violation of Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Convention). Article 3 prohibits inhuman or degrading treatment. His right to individual petition under Article 34 of the Convention was also found to have been breached.
Read MoreThe England and Wales Family Court has determined that unrepresented litigants should be funded by the Court where no other public funding is available and the hearing will otherwise contravene the litigant’s right to a just and fair hearing.
Read MoreA sexual harassment case was recently declared inadmissible by the Committee on the Elimination of Discrimination against Women. The complaint concerned the use of gender stereotypes by the domestic courts in the author’s case, amounting to a breach of Articles 5 and 11 of CEDAW. Despite clear examples of gender stereotypes being considered by the domestic courts, the majority of the Committee held there was no evidence that those stereotypes had negatively impacted the domestic court's decision. The dissenting Committee Member found a breach of CEDAW had been substantiated but that the claim was inadmissible as the author had delayed in bringing the case to the Committee.
Read MoreThe Committee on the Elimination of Discrimination Against Women affirmed that, in matters of child custody and visitation, the best interests of the child must be a central concern and that national authorities must take into account the existence of a context of domestic violence when making decisions. The failure of State parties to exercise due diligence to prevent violations of rights or to investigate and punish acts of violence by a marital party will amount to a breach of the Convention. It is not sufficient for a State party to rely upon notions of formal equality in making decisions as to parental custody.
Read MoreIn each case, the French authorities refused to issue visas for the applicants’ children. The authorities alleged that there were difficulties in establishing the children’s civil registration status as the birth certificates provided in support of the visa applications were not authentic. The applicants appealed, claiming that the difficulties they encountered in the Family Reunification Procedure constituted a violation of Article 8 (right to respect for private and family life) of the European Convention of Human Rights.
Read MoreThe UK High Court has found that the Detainee Fast Track system for detaining asylum seekers is unlawful because the system carried “an unacceptable risk of unfairness” primarily due to the unjustifiable delay in allocating lawyers to asylum seekers.
Read MoreThe European Court of Human Rights found that Switzerland’s intended expulsion of an Ecuadorian man who had unsuccessfully claimed asylum would violate his, his second daughter’s and his wife’s right to a family under article 8 of the European Convention on Human Rights, despite the man’s previous criminal convictions and his separation from his wife.
Read MoreThis case concerns a patient's right to be consulted by clinicians prior to the imposition of a Do Not Attempt Cardio-Pulmonary Resuscitation (DNACPR) notice on her file. The Court of Appeal accepted that this decision engages the rights contained in article 8 of the European Convention on Human Rights (the Convention). In these circumstances, article 8 creates a presumption that patients will be consulted before a DNACPR decision, unless there is a convincing reason to justify exclusion. The Court made a declaration that in failing to consult the Appellant prior to imposing a DNACPR notice, without an appropriate justification, the Cambridge University Hospitals NHS Foundation Trust (the Trust) breached article 8 of the Convention.
Read MoreOn 1 July 2014, the European Court of Human Rights held that a French law prohibiting the concealment of one's face in public places does not breach the European Convention for the Protection of Human Rights and Fundamental Freedoms. Whilst it was held that the prohibition impinges on the freedom of thought, conscience and religion, and the right to respect for private and family life, the government was entitled to impose the prohibition on the grounds that the ban protects the rights and freedoms of others.
Read MoreThe United States Supreme Court has overturned a Massachusetts law creating a 35 foot buffer zone outside reproductive health facilities. The Supreme Court held that the law violates the first amendment of the US Constitution because, while the buffer zone serves the State’s legitimate interests in maintaining public safety and preserving access to healthcare, it ‘burden[s] substantially more speech than is necessary’.
Read MoreThis case concerns the rights a duties of the Canterbury District Health Board (DHB) and the Departments of Corrections (Corrections) concerning the level of medical treatment they must provide a serving prisoner on a hunger strike.
Read MoreIn two judgments handed down on 20 June 2014, the High Court held that section 85 of the Migration Act 1958 (Cth) does not empower the Minister for Immigration and Border Protection to make a determination limiting the number of protection visas that may be granted during a financial year. Accordingly, the Minister's determination of 4 March 2014 limiting the maximum number of protection visas for the financial year ending on 30 June 2014 to 2,733 was invalid.
Read MoreThe UK Supreme Court considered the right to privacy in the context of laws requiring the issuance of criminal record certificates that contain references to minor past offences. The Court held that laws requiring the disclosure of data relating to cautions and warnings given for minor offences constituted an interference with the right to respect for private life enshrined in article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Convention).
Read MoreThe High Court has unanimously rejected a challenge to the constitutional validity of the sections of the Migration Act which give the Immigration Minister the power to designate regional processing countries. The High Court also rejected a challenge to the Minister’s exercise of this power with respect to the decision to designate PNG as a regional processing centre.
Read MoreThe England and Wales Family Court adjourned family law proceedings for contact orders where the unrepresented applicant could not afford a lawyer, due to concerns that the hearing may contravene the applicant’s right to a just and fair hearing
Read MoreThe Constitutional Court of South Africa has ruled that a law requiring courts to make an order to include the particulars of a sexual offence on a National Register for Sex Offenders (the Register) is unconstitutional when that offender is a child. The court noted that having particulars of a sexual offence on the Register at a young age could significantly impact on the child's life, including their ability to gain employment. The Court found that the mandatory nature of the law infringes on the right of child offenders to have their best interests considered as a matter of paramount importance and was therefore contrary to section 28(2) of the South African Constitution (the Constitution).
Read MoreIn an important and wide-ranging judgment examining the basis and scope of UK powers to detain in Afghanistan, the UK High Court has ruled that the UK government breached Afghan law and the European Convention on Human Rights (ECHR) by detaining a suspected insurgent for a prolonged period without charge for the purpose of intelligence gathering. The Court found that the UK has no lawful authority to detain suspects beyond 96-hours before handing them over to the Afghan authorities and, in developing a detention regime that permitted individuals to be held indefinitely and without judicial oversight, it had acted in “stark violation” of its human rights obligations.
Read MoreA Slovenian publisher was successfully sued for defamation for an article criticising a politician for his speech opposing legal recognition of same-sex partnerships. The company claimed that the Slovenian courts’ award of damages against it violated its right to freedom of expression. The European Court of Human Rights found a violation of the right to freedom of expression, as there was a sufficient factual basis for the statements, and in the context of the debate and article as a whole, the criticism could be seen as strong disagreement with the politician’s views, rather than merely an offensive personal insult.
Read MoreThe Victorian Supreme Court held that the legislative regime empowering courts to make preventative detention orders for certain sexual offenders is compatible with the Charter of Human Rights and Responsibilities Act (2006) Vic.
Read MoreThe Victorian Court of Appeal has found in favour of a group of young same-sex attracted people in their dispute with a Christian camp provider, in an important test of the religious exemptions under the Equal Opportunity Act 1995 (Vic).
Read MoreThe Supreme Court of India has ruled that transgender persons have a right to be legally recognised according to their self-identified gender, including a third gender. Failure to provide such legal recognition amounts to a breach of the right to equality before the law, non-discrimination on the basis of sex and the right to life and liberty with dignity.
Read MoreThe High Court of Australia has held that NSW births, deaths and marriages law recognises that a person’s sex may be other than male or female, and that the NSW Registrar has the power to register someone’s sex as “non-specific”.
Read MoreThe England and Wales Court of Appeal has found that exposing a prisoner who is a non-smoker to second hand smoke for seven days by forcing him to share a cell with a smoker did not amount to interference with his rights under either article 8 (the right to privacy) or article 14 (prohibition of discrimination) of the European Convention on Human Rights.
Read MoreVCAT dismissed a claim of discrimination for the refusal of a parish to grant financial membership to a female congregant. The Tribunal did not address the content of the alleged discrimination because there was no area in the Equal Opportunity Act 2010 (Vic) that applied to the nature of her claim. The case highlights gaps in the drafting of the Equal Opportunity Act 2010 (Vic) that limit the scope of protection against discrimination.
Read MoreThe UK Supreme Court handed down a judgment on the two linked appeals known collectively as the Cheshire West Case. The appeals deal with whether and in what circumstances the care and living arrangements made for a person with a mental impairment will amount to a deprivation of liberty. The Supreme Court found that all three of P, MIG and MEG, in these instances, were deprived of their liberty. The Court allowed appeals in both cases, unanimously in P's and by a majority of 4:3 for MIG and MEG.
Read MoreThe Church of Jesus Christ of Latter-Day Saints in Queensland undertook a restructure which abolished wards containing predominantly Samoan congregations who conducted services in the Samoan language. The members of those congregations were welcome to attend other congregations, but the services were to be conducted in English and attendees were no longer allowed to use a language other than English in public worship. The Full Court of the Federal Court unanimously held that the Church had not unlawfully discriminated against the Samoan members, contrary to section 9 of the Racial Discrimination Act 1975 (Cth) (RDA), because their rights to freedom of religious expression (and other human rights) were not infringed.
Read MoreThe High Court has upheld a native title claim by the Ngarla People, in a case that involved consideration of common law extinguishment. The Court unanimously found that the rights under the two mineral leases were not inconsistent with the claimed native title rights and interests. Importantly, the case clarifies the concept of “inconsistency” in the context of native title rights.
Read MoreThe UK High Court has found that systemic failures by police during a criminal investigation may amount to torture, inhuman or degrading treatment under article 3 of the European Convention on Human Rights. The Court held that in cases of particularly severe violent acts, such as rape, the police have a duty to conduct an investigation in a timely and efficient manner. Operational failures by the police meant that a rapist was not apprehended as early as he could have been, leaving him at large to continue to rape a significant number of women. The manner in which the police behaved towards the victims of such crimes was also found to amount to a breach of article 3.
Read MoreThe ACT Supreme Court has confirmed that the ACT Children’s Court has the power to stay proceedings in cases where the Public Prosecutor has breached the Human Rights Act 2004 (ACT). While this case did not merit the grant of a permanent stay of proceedings, such a remedy is available within the existing powers of the Children’s Court in certain circumstances, including where abuse of process is proved.
Read MoreThe UK Court of Appeal has held that a cap on housing benefits does not breach the rights of the child, the family or the right to freedom from discrimination. The cap was found to have a discriminatory impact upon women, particularly single mothers and mothers escaping domestic violence. The Court of Appeal considered the cap was justified in light of the legitimate aim of ensuring people return to work.
Read MorePolice stopped David Miranda at Heathrow airport and confiscated encrypted National Security Agency material that had originally been stolen by Edward Snowden. Mr Miranda was carrying the data to assist a Guardian journalist. The High Court of Justice of England and Wales rejected Mr Miranda’s arguments that the stop and search had interfered with his right to freedom of expression under English common law and the European Convention on Human Rights. The Court held that it was a proportionate measure in the circumstances, and was a permissible restriction prescribed by law in the interests of national security and safety.
Read MoreThe UK Supreme Court has held that returning an asylum seeker to the country whether they first claimed asylum is prohibited, if it can be established that there is a real risk that the person transferred will suffer inhumane or degrading treatment – which is prohibited by article 3 of the European Convention on Human Rights. The Supreme Court overturned the UK Court Appeal’s decision that there needs to be systemic deficiencies in the asylum procedures of the receiving state before a transfer of an asylum seeker should be prevented under the Dublin Regulation.
Read MoreThe UN Committee on the Elimination of Discrimination against Women found that the Netherlands’ temporary failure to provide an adequate maternity leave scheme between 2004 and 2008 involved a breach of its obligations under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).
The case raises interesting questions about the minimum standard of maternity leave required at international law; the ability of a state to meet its human rights obligations through the private sector; and the relationship between maternity leave and gender discrimination laws.
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