City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another (Lawyers for Human Rights as Amicus Curiae) Case No: CCT 37/11 [2011] ZACC 33 (1 December 2011)
The South African Constitutional Court has held that the City of Johannesburg had a constitutional obligation to provide emergency accommodation to vulnerable persons evicted by a private landlord.
Read MoreWK v The Queen [2011] VSCA 345 (30 November 2011)
In a recent appeal from an interlocutory decision of the County Court, the Victorian Court of Appeal held, by a majority of 2:1, that s 32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) is applicable to the interpretation of the Surveillance Devices Act 1999 (Vic). Only His Honour Nettle JA considered the implications of the recent High Court decision in Momcilovic v The Queen [2011] HCA 34.
Read MoreParks Victoria (Anti-Discrimination Exemption) [2011] VCAT 2238 (28 November 2011)Cummeragunja Housing & Development Aboriginal Corporation (Anti-Discrimination Exemption) [2011] VCAT 2237 (28 November 2011) The Ian Potter Museum of Art (Anti-Discrimination Exemption) [2011] VCAT 2236 (28 November 2011)
On 28 November 2011, the Victorian Civil and Administrative Tribunal delivered judgments in three matters, each dealing with applications for exemption from the Equal Opportunity Act 2010 (Vic) (EOA) to enable the limiting of employment in specified roles to Indigenous persons.
Read MoreReference re: Section 293 of the Criminal Code of Canada 2011 BCSC 1588 (23 November 2011)
This case was referred to the Chief Justice of the Supreme Court of British Columbia, Canada to determine the constitutionality of section 293 of the Criminal Code of Canada (establishing polygamy as a criminal offence), in light of the Canadian Charter of Rights and Freedoms.
Read MoreJude v Her Majesty’s Advocate (Scotland) [2011] UKSC 55 (23 November 2011)
In this case, the Supreme Court of the United Kingdom held that admitting evidence of unsolicited statements made to the police by an accused who had waived his right to access legal advice did not deny him a fair trial contrary to article 6(1) of the European Convention on Human Rights.
Read MoreMcGowan (Procurator Fiscal, Edinburgh) v B (Scotland) [2011] UKSC 154 (23 November 2011)
In this case, the Supreme Court of the United Kingdom held that it is not necessary for an accused in custody to receive advice from a lawyer in order to effectively waive their right of access to a lawyer under article 6 of the European Convention of Human Rights. The Court did observe, however, that where people are vulnerable or the questioning is long and complex, they may need to be given additional protections to ensure they understand the rights in question.
Read MoreR, Mousa v Secretary of State for Defence & Anor [2011] EWCA Civ 1334 (22 November 2011)
The UK Court of Appeal recently considered the investigation obligation under articles 2 and 3 of the European Convention on Human Rights in the context of an inquiry established by the UK Government to investigate allegations of mistreatment of Iraqis by British troops. The Court found the inquiry did not possess requisite independence because the investigating body was staffed with members of a branch of the military which had been involved in the detention and internment of suspected persons in Iraq during the period under investigation.
Read MoreBatty v City of Toronto [2011] ONSC 6862 (21 November 2011)
In Batty v City of Toronto, the Ontario Superior Court of Justice considered an application challenging the constitutional validity of a Trespass Notice issued to a group of protestors on the basis it violated the protestors’ rights under the Canadian Charter of Rights and Freedoms. It was ultimately held that the Notice was constitutionally valid under s 1 of the Charter, which provides that the rights and freedoms set out therein are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. The protestors' application was therefore dismissed.
Read MoreOsman v Minister of State for Provincial Administration & Internal Security and Ors eKLR [2011] (16 November 2011)
The High Court of Kenya has held that the forced eviction of 1,122 people was a violation of the right to adequate housing enshrined in the Kenyan Constitution and a number of other rights, and made injunctions compelling the government to return the evictees to their land and to reconstruct reasonable housing for the community.
Read MoreR v Larson, 2011 BCCA 454 (10 November 2011)
In this case, the Court of Appeal for British Columbia overturned Mr Larson's conviction for unlawful production of cannabis under s 7(1) of the Controlled Drugs and Substances Act, SC 1996, c 19. The decision was based on the finding that the warrantless search of Mr Larson's residence, which uncovered his marijuana growing operation, was unlawful under s 8 of the Canadian Charter of Rights and Freedoms, which confers the right “to be secure against unreasonable search or seizure”. Evidence obtained in this and subsequent searches was excluded by the court under s 24(2) of the Canadian Charter, which provides for exclusion of evidence obtained in a manner that infringes any Charter rights if admission of the evidence would bring the administration of justice into disrepute.
Read MoreCheshire West and Chester Council v P [2011] EWHC 1330 (Fam) (9 November 2011)
The Court of Appeal has found that the care plan of a man lacking capacity under the Mental Capacity Act 2005 (UK) did not involve a deprivation of liberty within the meaning of article 5 of the ECHR. In so doing, it has usefully clarified the principles which should be taken into account when considering whether a person has been deprived of his or her liberty within the meaning of article 5.
Read MoreV.C. v Slovakia [2011] ECHR 1888 (8 November 2011)
In this case, the European Court of Human Rights held that the sterilisation of a woman, in circumstances where “consent” to the procedure was obtained during the late stages of her labour, violated her right to private life and the prohibition against torture and ill-treatment.
Read MoreL.C. v. Peru, UN Doc. CEDAW/C/50/D/22/2009 (4 November 2011)
S.H. & Others v Austria [2011] ECHR 1879 (3 November 2011)
The Grand Chamber of the European Court of Human Rights has found that Austrian legislation which prevents couples from conceiving a child with in vitro fertilization using donated ova or sperm does not breach the European Convention on Human Rights.
This decision reverses an earlier finding that Austria’s Artificial Procreation Act breached the applicants’ rights to private and family life (article 8) and non- discrimination (article 14) under the Convention.
Read MoreGale & Anor v Serious Organised Crime Agency [2011] UKSC 49 (26 October 2011)
Approximately £2 million worth of property was confiscated from the appellants, on the basis that it was the fruit of drug trafficking, money laundering and tax evasion. Under Article 6(2) of the European Convention on Human Rights, the United Kingdom Supreme Court held that the appellants’ criminal conduct was to be proved on the balance of probabilities, and not beyond reasonable doubt. It was held that the proceedings were civil in nature and did not share a procedural link with previous criminal proceedings brought against one of the appellants in Portugal and Spain.
Read MoreR v Nakamura, 2011 BCSC 1443 (26 October 2011)
This case concerns a voir dire ruling made by the Supreme Court of British Columbia to exclude from the proceedings an incriminating statement made by one of the two accused on the basis that the accused was not advised upon being detained of the right to counsel. Pursuant to s 10(b) of the Canadian Charter of Rights and Freedoms, everyone has a guaranteed right upon on arrest or detention ‘to retain and instruct counsel without delay and to be informed of that right’. Section 24(2) of the Charter provides for the exclusion of impugned evidence if admission of the evidence would bring the administration of justice into disrepute.
Read MoreMandic and Jovic v Slovenia [2011] ECHR Application Nos. 5774/10 and 5985/10 (20 October 2011)
In this case, the European Court of Human Rights confirmed that inadequate physical conditions of detention in prison, in particular insufficient personal space for prisoners resulting from systemic overcrowding, can amount to inhuman and degrading treatment in breach of article 3 of the European Convention of Human Rights. If a prison does not meet certain minimum standards, the threshold of severity necessary to amount to a breach of article 3 may be crossed even in the absence of a positive intention to humiliate or debase prisoners.
Read MoreSessay, R (on the application of) v South London & Maudsley NHS Foundation Trust & Anor [2011] EWHC 2617 (QB) (13 October 2011)
The High Court of England and Wales considered the circumstances in which the compulsory admission to hospital of non-compliant incapacitated patients under the Mental Health Act 1983 (MHA) may constitute a deprivation of liberty in contravention of article 5 the European Convention of Human Rights (ECHR).
Read MoreAB v Western Australia [2011] HCA 42 (6 October 2011)
The High Court delivered a unanimous judgment affirming the right of transgender people to have their gender officially recognised after undergoing medical or surgical procedures, even if not all of their reproductive organs have been altered. The Court emphasised the purpose of the Gender Reassignment Act 2000 (WA) to alleviate suffering and discrimination transgender people face in society by providing legal recognition of their self-identification and perception of gender.
Read MoreEquality and Human Rights Commission v Prime Minister & Ors [2011] EWHC 2401 (Admin) (3 October 2011)
The High Court of England and Wales has partially upheld claims by the Equality & Human Rights Commision and Mr Al Bazzouni (a former detainee) that Government guidance regarding what British intelligence officers should do if they suspect detainees being interviewed overseas are at risk of torture or cruel, inhuman or degrading treatment is unlawful.
Read MoreCanada (Attorney-General) v PHS Community Services Society, 2011 SCC 44 (30 September 2011)
The Supreme Court of Canada has held that the failure of the Minister of Health to grant an exemption to allow a safe injecting facility to operate notwithstanding federal anti-drug laws violated the right to life, liberty and security of the person under the Canadian Charter of Rights and Freedoms. This was because the evidence clearly demonstrated that the safe injecting facility was effective in saving lives and reducing drug-related harm.
Read MoreMahajna v Secretary of State for the Home Department [2011] EWHC 2481 (Admin) (30 September 2011)
The High Court of England and Wales has upheld the right of people under arrest to be given adequate factual and legal reasons for arrest in a timely manner and in a language they understand, in line with article 5(2) of the European Convention on Human Rights. Justice Nicol of the High Court emphasised that “[r]ights under the common law and the Convention are intended to be real rights and confer real benefits. The Claimant was entitled to know, at least in the broadest terms, why he was being arrested.”
Read MoreEatock v Bolt [2011] FCA 1103 (28 September 2011)
Federal Court judge Bromberg J recently held that Herald Sun opinion columnist Andrew Bolt and the Herald & Weekly Times had contravened the racial vilification provisions of the Racial Discrimination Act 1975 (Cth) in two articles published in 2009. Bromberg J highlighted that “[a]t the heart of any attempt to secure freedom from racial prejudice and intolerance is the protection of equality and the inherent dignity of all human beings.”
Read MoreBah v United Kingdom [2011] ECHR 1448 (27 September 2011)
The European Court of Human Rights has held that a person's immigration status is a relevant ground of discrimination under Article 14 of the European Convention of Human Rights. However, as a person's immigration status involves an element of choice, the ECHR held that the justification needed for differential treatment on this basis need not be as weighty as where differential treatment is based on an inherent characteristic such as sex or nationality.
Read MoreFederation of Law Societies of Canada v Canada (Attorney General), 2011 BCSC 1270 (27 September 2011)
In the context of international pressure on states to combat anti-money laundering and terrorism financing, the Supreme Court of British Columbia has held that limitations on solicitor-client privilege imposed by anti-money laundering legislation violate principles of fundamental justice in contravention of the Canadian Charter of Rights and Freedoms. The decision will remove the legal profession from the operation of two pieces of anti-money laundering and terrorist financing legislation in Canada.
Read MoreAldridge v R [2011] ACTCA 20 (22 September 2011)
The ACT Court of Appeal has held that, by operation of s 11(2) of the Human Rights Act 2004 (ACT), the arrangements for care of children is a relevant factor to be taken into account in the grant of bail, sentencing, and the grant of bail pending appeal against sentence.
Read MorePalomo Sanchez v Spain [2011] ECHR 1319 (12 September 2011)
In this case, the Grand Chamber of the European Court of Human Rights considered whether the dismissal of employees for publishing offensive material in a trade union newsletter contravened the rights to freedom of expression and freedom of association under articles 10 and 11 of the European Convention of Human Rights. The majority of the Grand Chamber concluded that the dismissals were reasonable and that no contravention of articles 10 and 11 had occurred.
Read MoreMomcilovic v The Queen [2011] HCA 34 (8 September 2011)
The High Court's decision in Momcilovic v The Queen upholds the constitutional validity of the Charter of Human Rights and Responsibilities Act 2006 (Vic). However, the six separate judgments provide varied guidance as to how the Charter should be applied in practice.
Read MoreCastle & Ors v Commissioner of Police for the Metropolis [2011] EWHC 2317 (Admin) (8 September 2011)
The High Court of England and Wales has dismissed claims made on behalf of three school children that their containment at last year’s demonstrations in central London was in breach of their rights under the European Convention on Human Rights (‘EHCR’). The High Court held that the police action taken on the day, “having regard to the need to safeguard children and to promote their welfare, was necessary, proportionate and lawful”.
Read MoreDirector of Housing v Sudi [2011] VSCA 266 (6 September 2011)
The Victorian Court of Appeal has decided that VCAT, in an application for a possession order under the Residential Tenancies Act 1997, did not have power to consider whether, by making the application for the possession order, the Director of Housing had complied with s 38(1) of the Charter. Section 38(1) states it is unlawful for a public authority to act in a way that is incompatible with, or fail to give proper consideration to, a relevant human right.
Read MoreInga Abramova v Belarus, Communication No. 23/2009, UN Doc. CEDAW/C/49/D/20/2008 (29 August 2011)
The Committee on the Elimination of Discrimination against Women has found that Belarus’ treatment of a woman detained under administrative arrest violated articles 2(a)-2(b), 2(e)-2(f), 3 and 5(a) of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), read in conjunction with article 1 and the Committee’s General Recommendation No. 19 on violence against women.
Read MoreNystrom v Australia, UN Doc CCPR/C/102/D/1557/2007 (18 August 2011)
On 18 August 2011 the United Nation’s Human Rights Committee published its View adopted in the Communication (Communication No. 1557/2007) submitted by Stefan Lars Nystrom.
In this landmark decision the Committee found that Australia had violated article 12(4) (the right to enter his own country), and articles 17 and 23(1) (protection from arbitrary interference with his family life) of the International Covenant on Civil and Political Rights.
Read MoreV.K. v. Bulgaria, UN Doc CEDAW/C/49/D/20/2008 (17 August 2011)
The Committee on the Elimination of Discrimination against Women has found that Bulgaria’s failure to protect V.K. effectively against domestic violence amounted to violations of articles 2(c)-2(f) of the Convention on the Elimination of All Forms of Discrimination against Women, read in conjunction with article 1, and article 5(a), read in conjunction with article 16(1) and General Recommendation No 19 on violence.
Read MoreL.N.P. v Argentine Republic, Comm. No. 1610/2007, UN Doc. CCPR/C/102/D/1610/2007 (2011)
The Human Rights Committee found that Argentina’s treatment of a 15 year-old rape survivor violated articles 2(3), 3, 7, 14(1), 17, 24 and 26 of the International Covenant of Civil and Political Rights.
Read MoreR v JWC, 2011 ONCA 550 (10 August 2011)
This is an unusual criminal law case in which the only evidence against the defendant, JWC, was a statement he made to police in which he confessed to numerous sexual assaults of a number of patients in his care while working at various group homes for people with disabilities.
Read MoreAlyne da Silva Pimentel Teixeira (deceased) v Brazil, CEDAW, UN Doc CEDAW/C/49/D/17/2008 (2011)
The UN Committee on the Elimination of Discrimination against Women has found that Brazil’s failure to prevent the avoidable maternal death of Alyne da Silva, a 28-year-old Brazilian woman of African descent, violated articles 2 and 12 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), in conjunction with article 1. The Committee’s landmark decision is the first maternal mortality case decided by a UN treaty body.
Read MoreThe Queen (on the application of S) v The Secretary of State for the Home Department [2011] EWCH 2120 (Admin) (5 August 2011)
The Claimant, S, sought judicial review of the decision to detain him pending deportation. Owing to circumstances relating to his mental illness, the High Court of England and Wales held that S's detention amounted to false imprisonment and a violation of Articles 3 and 5 of the European Convention of Human Rights, which prohibit inhuman or degrading treatment and protect an individual's right to liberty and security of the person, respectively.
Read MoreCollier v Austin Health & Ors [2011] VSC 344 (27 July 2011)
The Supreme Court of Victoria's recent decision in Collier v Austin Health [2011] VSC 344 confirms that section 32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) will not operate in cases where the facts and events in issue occurred prior to the Charter's commencement. At the same time, however, the decision provides a useful reminder of the common law requirement that — even in the absence of the Charter's direction to interpret statutory provisions compatibly with human rights — courts and tribunals must interpret the provisions of protective human rights legislation as liberally and beneficially as their language will allow.
Read MoreGeorgel and Georgeta Stoicescu v Romania [2011] ECHR 1193 (26 July 2011)
In an important judgment on the scope of article 8 of the European Convention on Human Rights, the European Court of Human Rights held that Romania violated article 8 of the Convention through failing to take sufficient measures to protect the physical and psychological integrity of the applicant, Ms Georgeta Stoicescu. Romania was also found to have breached article 6 of the Convention for denying the applicant an effective right of access to a court.
Read MoreSingh v France, UN Doc CCPR/C/D/102/18767/2009 (22 July 2011)
The UN Human Rights Committee recently decided that a French regulation requiring persons to appear bare headed in identity photographs used for residency permits constitutes an impermissible limitation on the applicant’s freedom of religion in violation of article 18 of the International Covenant on Civil and Political Rights.
Read MoreP J B v Melbourne Health & Anor (Patrick’s case) [2011] VSC 327 (19 July 2011)
In this case, the Supreme Court of Victoria held that the Victorian Civil and Administrative Tribunal had both failed to interpret law consistently with human rights and had itself failed to act compatibly with human rights in appointing an administrator to sell the home of a man with disability against his wishes.
Read MoreLM v Latvia [2011] ECHR (Application No 26000/02, 19 July 2011)
In LM v Latvia, the European Court of Human Rights affirmed the importance of ensuring that domestic law provides adequate legal protections to persons with mental illness who are involuntarily detained and treated.
The decision is an important guide as to what may constitute “fair and proper procedures” which ultimately safeguard individuals against the arbitrary deprivation of their liberty in psychiatric institutions.
Read MoreZhumbaeva v Kyrgyzstan, UN Doc CCPR/C/102/D/1756/2008 (19 July 2011)
In this case, the United Nations Human Rights Committee held that Kyrgyzstan was responsible for injuries to, and the death of, a man held in police custody. The Committee based its decision on the principles that a State assumes responsibility for a person that it takes into custody, and that, where that person's rights are violated, the State must properly investigate and prosecute those responsible to remedy the violation. The Committee's decision is relevant in a Victorian context because deaths in custody have been and remain an important issue in the Australian political landscape.
Read MoreHome Office v Tariq [2011] UKSC 35 (13 July 2011)
In this case, the United Kingdom Supreme Court considered the nature and scope of the right to a fair hearing and, in particular, the circumstances in which the nature of allegations against a person can be withheld from them in the interests of national security.
Read MoreAl-Jedda v United Kingdom [2011] ECHR 1092 (7 July 2011) Al-Skeini & Ors v United Kingdom [2011] ECHR 1093 (7 July 2011)
The European Court of Human Rights (the Court) recently decided two applications brought against the United Kingdom under Article 34 the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention).
Read MoreR (on the application of McDonald) v Royal Borough of Kensington and Chelsea [2011] UKSC 33 (6 July 2011)
The UK Supreme Court has held that the failure to provide an elderly woman with night-time care assistance to help her use the toilet, and instead requiring she use incontinence pads and special sheets (even though she is not incontinent), does not breach the right to privacy in article 8 of the European Convention on Human Rights.
Read MoreR v Kara Lesley Mills [2011] ACTSC 109 (1 July 2011)
In R v Kara Lesley Mills [2011] ACTSC 109 (R v Mills), the ACT Supreme Court delivered an important judgment concerning the right to a fair trial in criminal proceedings with a particular focus on circumstances that may constitute 'unreasonable delay'. While the decision largely turned on the facts of the case, it serves as an important guide to what may amount to 'unreasonable delay' and the options available to the Court to provide a suitable remedy.
Read MoreR (on the application of G) v The Governors of X School [2011] UKSC 30 (29 June 2011)
The UK Supreme Court has held that where one set of proceedings determines an individual’s civil rights or obligations, they may have procedural rights under article 6 of the European Convention on Human Rights (ECHR) both in those proceedings and in earlier proceedings that have a “substantial influence or effect” on those proceedings.
Read MoreSufi and Elmi v The United Kingdom [2011] ECHR 1045 (28 June 2011)
The European Court of Human Rights (the Court) has found that the return of two Somali nationals to Mogadishu, Somalia would amount to inhuman and degrading treatment in breach of article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) because of the situation of general violence there.
Read MoreGubacsi v Hungary [2011] ECHR 1044 (28 June 2011)
In this case, the European Court of Human Rights (the Court) confirmed that ill-treatment of persons in custody by police, if sufficiently serious, may amount to inhuman and degrading treatment in breach of article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention). In circumstances where a person enters police custody in good health, and is injured when released, the State bears the onus to provide a plausible explanation of how the injuries were caused.
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