High Court of England and Wales dismisses a defamation claim brought by a Governor following sexual harassment claims

Kofoworola Adeolu David v Zara Hosany [2017] EWHC 2787 (QB)

In a high-profile decision of the High Court (Queen’s Bench Division), Judge Moloney QC dismissed a libel action brought by Mr David, a Governor of a UK public authority, against another Governor, Ms Hosany. The allegedly defamatory material included allegations of sexual harassment.

The Court upheld the principle that complaints, properly made and without malice, are protected from defamation actions (the common law defence of qualified privilege). The exception to the privilege borne from article 8 of the European Convention of Human Rights (ECHR) and section 6 (1) of the Human Rights Act 1998, being a person’s right to respect for “private and family life, home and correspondence”, did not apply as the complaints were made in a private capacity. The judgment provides necessary encouragement to people to report incidences of sexual harassment in the workplace.

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Case Notes UK Court or TribunalGuest UserWomen’s Rights
Australian High Court finds 5 parliamentarians incapable of being elected on the basis of foreign citizenships

Re Roberts [2017] HCA 39 (22 September 2017), Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon [2017] HCA 45 (27 October 2017) and Re Barrow [2017] HCA 47 (7 November 2017)

In three related decisions, the Australian High Court has for the first time ruled on several key aspects of section 44(i) of the Australian Constitution, relating to foreign citizenship for elected members of Parliament. The Court held that four Senators (Ludlam, Waters, Roberts and Nash), and one member of the House of Representatives (Joyce), were incapable of being elected to the Parliament because they were citizens of a foreign power.  The Court also held that two other Senators whose election had been referred to the Court (Canavan and Xenophon) were validly elected and capable of sitting in the Parliament.

It is expected that the election of a number of further members of Parliament may be referred to the Court shortly for consideration.

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HRLC AdminOther
European Court of Human Rights tips the balance in favour of privacy over freedom of expression on social media

Einarsson v. Iceland (Application no. 24703/15) [2017] ECHR 7 November 2017

The European Court of Human Rights has overturned a decision of the Iceland Supreme Court and upheld a well-known commentator’s right to respect for his private life under Article 8 of the European Convention on Human Rights, over an individual’s right to exercise freedom of expression under Article 10 in the context of an Instagram post accusing him of rape.

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HRLC AdminDemocratic Freedoms, Privacy
South African High Court finds corporal punishment of children unconstitutional

YG v S (A263/2016) [2017] ZAGPJHC 290; 2018 (1) SACR 64 (GJ) (19 October 2017)

The South African High Court has ruled the common law defence of reasonable or moderate chastisement is no longer applicable at common law in South Africa. The landmark judgement found no justification for permitting the use of corporal punishment against a child which would otherwise constitute assault but for the invocation of the defence.

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HRLC AdminChild Rights
European Court of Human Rights upholds the right to freedom of expression on the Internet

Tamiz v the United Kingdom (Application no. 3877/14) [2017] ECHR (12 October 2017)

The European Court of Human Rights has reinforced the importance of the freedom of expression in the European Convention on Human Rights in the context of online forums. The Court found that the English courts had conducted “an appropriate balancing exercise” when determining that ‘vulgar’ comments posted on a blog operated by Google Inc. did not pose enough of a risk to the applicant’s reputation (Article 8) to warrant restricting the freedom of expression of Google Inc. and its users (Article 10).

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HRLC AdminDemocratic Freedoms, Foreign Policy, Human Rights Law & Institutions
German Constitutional Court requires positive recognition of people with intersex variations in the birth register

Bundesverfassungsgericht [German Constitutional Court], 1 BvR 2019/16, 10 October 2017

The German Federal Constitutional Court has ruled that the existing law dictating binary gender options in the birth registry is unconstitutional. The Court found that sections of the Civil Status Act that forced people to nominate as either "male", "female" or without a gender were a violation of the Basic Law for the Federal Republic of Germany, specifically the general right to personality and the protection against discrimination based on sex. 

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HRLC AdminLGBTI Rights
UK High Court rejects challenge to prohibition on assisted dying

R (on the application of Noel Conway) v The Secretary of State for Justice [2017] EWHC 2447 (Admin) (5 October 2017)

The UK High Court has rejected the latest legal challenge to the prohibition on assisted dying, holding that the prohibition represents a necessary and proportionate interference with the applicant’s right to private life. The Court placed reliance upon the fact that Parliament had repeatedly decided to leave the prohibition in place, providing a timely reminder of the crucial role of Parliament in promoting a person’s right to die with dignity in the context of the assisted dying laws currently being debated in Victorian Parliament.

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HRLC AdminHealth
High Court of Australia finds marriage law postal survey is lawfully funded

Wilkie & Ors v The Commonwealth & Ors; Australian Marriage Equality Ltd & Anor v Minister for Finance & Anor [2017] HCA 40 (M105/M106 of 2017)

In M105/M106, the High Court dismissed two legal challenges to the Government's plan to carry out a voluntary postal survey on whether the law should be changed to allow same-sex couples to marry. The plaintiffs challenged the survey on the basis that it was not lawfully funded.

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HRLC AdminLGBTI Rights
High Court of Australia affirms narrower interpretation of “intention” to cause harm under complementary protection regime

SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34

The High Court has held that in order for an applicant to be covered by the Migration Act’s complementary protection regime, the element of “intention” requires a person’s actual, subjective intention to bring about pain, suffering or extreme humiliation. 

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HRLC AdminRefugee & Asylum Seeker Rights
UN finds that Australia breaches right to equality in same-sex divorce

United Nations Human Rights Committee – Views adopted by the Committee under article 5(4) of the Optional Protocol (CCPR/C/119/D/2216/2012)

The UN Human Rights Committee has held that Australia violated the International Covenant on Civil and Political Rights by failing to provide access to divorce proceedings for same-sex couples married overseas. The Committee reasoned that the differential treatment of same-sex couples as compared with overseas polygamous and adolescent marriages (between persons aged from 16 to 18 years) constituted discrimination under article 26 of the Covenant.

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HRLC AdminLGBTI Rights, United Nations
The Charlie Gard case: UK High Court rules against experimental medical treatment for a terminally ill child

Great Ormond Street Hospital v Yates [2017] EWHC 1909 (Fam) (24 July 2017)

In a high-profile dispute between the parents of a terminally ill child and doctors at the Great Ormond Street Hospital over the child’s course of treatment, the UK High Court found that the best interests of the child require that he not be given experimental medical treatment and instead be taken off life support.

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HRLC AdminHealth, Child Rights
European Court of Human Rights finds hate speech not protected by freedom of expression

Belkacem v Belgium (2017) ECHR 253

The European Court of Human Rights has found that a conviction for the incitement of hatred, violence and discrimination for under Belgian law did not breach a far right Muslim activist's right to freedom of expression, as protected by Article 10 of the European Convention of Human Rights. 

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HRLC AdminDemocratic Freedoms, Human Rights Law & Institutions
UK High Court finds that arms trade to Saudi Arabia can continue

R (on the application of Campaign Against Arms Trade) v The Secretary of State for International Trade and Intervenors [2017] EWHC 1726 (QB)

The English & Wales High Court has found that the UK's Secretary of State decision not to suspend a licence to export arms to the Kingdom of Saudi Arabia was valid. The Campaign Against Arms Trade and a number of intervenors unsuccessfully argued that the export licence should be suspended on the basis that there was a clear risk that the arms could be used in the commission of serious violations of international humanitarian law.

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HRLC AdminForeign Policy
US Supreme Court temporarily reinstates President Trump's travel ban for immigrants with no bona fide connection to the United States

Trump v International Refugee Assistance Project, 137 S.Ct 2080 (26 June 2017)

On 26 June 2017 the Supreme Court of the United States temporarily reinstated President Trump's travel ban, but a majority of the Court held that the temporary reinstatement will not apply to people who can show they have a credible claim of a bona fide relationship with a person or organisation already in the United States.

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HRLC AdminForeign Policy, Refugee & Asylum Seeker Rights
UK Supreme Court challenges ‘deport now, appeal later’ immigration policy

R (on the application of Kiarie) (Appellant) v Secretary of State for the Home Department (Respondent); R (on the application of Byndloss) (Appellant) v Secretary of State for the Home Department (Respondent) [2017] UKSC 42

The UK Supreme Court has unanimously held that deportation certificates issued by the United Kingdom’s Secretary of State for the Home Department were unlawful. The recipients of the deportation orders in this case were entitled to appeal against the Home Secretary’s immigration decisions by a judicial review procedure to the First-tier Tribunal (Immigration and Asylum Chamber). However, the effect of the deportation orders was that the appeals could only be brought after the appellants’ removal from the UK.  This is known as the ‘deport first, appeal later’ policy. The Court found that difficulties with evidence and legal representation meant these appeals were not sufficiently effective.

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HRLC AdminRefugee & Asylum Seeker Rights, Democratic Freedoms
UK Supreme Court finds that refusing free abortion services to women travelling from Northern Ireland to England is lawful

R (on the application of A and B) v Secretary of State for Health [2017] UKSC 41

A slim majority of the UK Supreme Court has upheld the UK Secretary of State for Health’s decision not to provide free of charge abortion services to women travelling from Northern Ireland to England. The court found that the Secretary was entitled to consider the Northern Ireland Assembly’s decision not to provide abortions and the devolved government model for providing health services. Further, that treating UK citizens who usually reside in Northern Ireland differently was justified in the circumstances.

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HRLC Admin
US Supreme Court confirms equal gender protection in immigration law but plaintiff deported as less favourable test followed

Sessions v Morales-Santana, 582 U.S Supreme Court (12 June 2017)

The US Supreme Court has held that different citizenship rules for children of unmarried mothers and fathers unlawfully infringes the Fifth Amendment’s guarantee of equal gender protection. However, the Court determined that the less favourable test should be followed, resulting in the respondent's deportation from the United States.

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HRLC AdminDiscrimination & Equality, LGBTI Rights
Victorian Supreme Court finds establishment of youth justice centre at Barwon adult prison contrary to human rights and unlawful

Certain Children by their litigation guardian Sister Marie Brigid Arthur v Minister for Families and Children & Ors [2017] VSC 251 (11 May 2017)

The Victorian Supreme Court has found for the third time that the Victorian government acted unlawfully with children's human rights and best interests in breach of the Charter of Human Rights and Responsibilities Act 2006 by establishing the Grevillea unit at Barwon prison as a youth justice centre and remand centre, transferring children to the Grevillea unit and using OC spray and extendable batons on children.

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HRLC AdminPrisoner Rights, Child Rights
High Court of Australia finds that reckless infliction of STI can constitute malicious infliction of grievous bodily harm

Aubrey v The Queen [2017] HCA 18 (10 May 2017)

A majority of the High Court has held that the act of infecting another individual with a sexually transmitted infection falls within the meaning of 'maliciously inflicting grievous bodily harm' under s 35(1)(b) of the Crimes Act 1900 (NSW). The decision also clarifies that it is sufficient that the Crown establish that an accused foresaw the possibility, and not the probability, that an act of sexual intercourse could result in the contraction of a grievous bodily disease for an accused to be convicted of the offence.

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HRLC AdminHealth
European Court of Justice clarifies scope of workplace bans on religious headscarves

Achbita v G4S Secure Solutions NV (European Court of Justice, C-157/15, 14 March 2017) and Bougnaoui v Micropole SA (European Court of Justice, C-188/15, 14 March 2017)

The European Court of Justice has clarified European law surrounding workplace prohibitions on wearing religious symbols in customer facing roles. The Court held that workplace bans on religious dress based on legitimate and objective aims can lawfully prohibit employees wearing visible signs of their religious, political or philosophical beliefs. However, workplace policies based on subjective criteria or which disadvantage people with particular religious beliefs would constitute indirect discrimination.

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HRLC AdminDiscrimination & Equality, Human Rights Law & Institutions
Victorian Supreme Court rules that courts have fair hearing and equality obligations to assist self-represented litigants

Matsoukatidou v Yarra Ranges Council [2017] VSC 61 (28 February 2017)

The Supreme Court of Victoria has delivered an important decision on the obligations of courts to ensure fair hearing and equality rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter) in the context of unrepresented litigants, and in particular where a litigant has a cognitive disability.

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MichelleBennettHuman Rights Law & Institutions, Disability & Mental Health
South African High Court blocks executive withdrawal from International Criminal Court

Democratic Alliance v Minister of International Relations and Cooperation and Others (Council for the Advancement of the South African Constitution Intervening) (83145/2016) [2017] ZAGPPHC 53 (22 February 2017)

The High Court of South Africa has found that the decision by the national executive to sign and deliver a notice of withdrawal from the Rome Statute without prior parliamentary approval was unconstitutional and invalid.

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HRLC AdminHuman Rights Law & Institutions
US Court of Appeal halts President Trump’s controversial immigration order

State of Washington & State of Minnesota v Trump No. 2:17-cv-00141 (W.D.Wash. 2017) (9 February 2017)

In a unanimous 3-0 decision, the United States Court of Appeal maintained the freeze on US President Donald Trump’s controversial immigration order suspending entry of people from 7 countries for 90 days, indefinitely suspending the entry of Syrian refugees and suspending the United States Refugee Admissions Program for 120 days.

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HRLC AdminRefugee & Asylum Seeker Rights
Victorian Supreme Court awards damages for business-related losses "in consequence of" racial discrimination

Obudho v Patty Malones Bar Pty Ltd [2017] VSC 28 (9 February 2017)

The Victorian Supreme Court has found that the cancellation by Patty Malones Bar of an African music themed event on the basis of the race of prospective patrons constituted direct discrimination in breach of the Equal Opportunity Act. The Court awarded compensation to Antony Obudho for his economic and non-economic losses as the organiser of the event, despite the fact that Patty Malones had not had any direct dealings with Mr Obudho and did not have any information about his race or ethnicity.

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HRLC AdminDiscrimination & Equality
UK Supreme Court finds police gave freedom to protestors at expense of public safety

DB v Chief Constable of Police Service of Northern Ireland [2017] UKSC 7 (1 February 2017)

The United Kingdom Supreme Court found that the Northern Ireland police service wrongly determined that they did not have the power to prevent disruptive and violent protests through a residential area. The Court held that freedom of assembly in article 11 of the ECHR is not absolute and police have a duty to protect others from any violence.

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HRLC AdminDemocratic Freedoms
ECHR says removal of infant from surrogate parents interfered with right to respect for private life but was justified under national laws

Paradiso and Campanelli v Italy (European Court of Human Rights, Grand Chamber, Application No 25358/12, 24 January 2017).

The European Court of Human Rights has found that the forced removal of an infant from his surrogate parents constituted an interference with the surrogate parents' right to respect for their private life under Article 8 of the European Convention of Human Rights, but that the actions taken by the Italian government were justified under the margin of appreciation under domestic laws prohibiting commercial surrogacy.

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HRLC AdminOther
UK High Court rules against MPs withdrawing from EU without Act of Parliament

R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5 (24 January 2017)

The UK High Court has ruled that ministers of the United Kingdom cannot employ prerogative powers to withdraw from the EU without an Act of Parliament authorising them to do so, as only an Act of Parliament can significantly alter the UK's constitutional arrangements. As EU law was a significant source of UK domestic law, the majority ruled that this legal source could not be removed by ministerial decision alone.

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HRLC AdminOther
The European Court of Human Rights reverses its position on the UK’s life-sentencing regime.

Hutchinson v. the United Kingdom (application no. 57592/08) [2016] ECHR 021 (January 2017)

Four years after its decision in Vinter, the Grand Chamber of the European Court of Human Rights has revisited the UK’s life-sentencing regime, reversing its earlier position and holding that the regime does not contravene the European Convention on Human Rights.

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MichelleBennettPrisoner Rights, Human Rights Law & Institutions
English Court finds that direct contact between children and transgender mother not in their best interests considering exclusion from ultra-Orthodox Jewish community if allowed

J v B [2017] EWFC 4 (20 January 2017)

In a complex case, the Family Court in England has ordered that a transgender mother is not permitted to have direct contact with her five practising, ultra-orthodox Jewish children, on the basis that the benefits to the children of resuming contact would be outweighed by the harmful community reaction to the children and their family. However, the Court ordered that indirect contact four times a year be allowed.

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HRLC AdminLGBTI Rights, Discrimination & Equality
UK Supreme Court finds that the “Crown act of state” doctrine bars certain international claims

Rahmatullah (No 2) v Ministry of Defence [2017] UKSC 1 (17 January 2017)

The UK Supreme Court has unanimously held that the “Crown act of state” doctrine acts as a bar to certain claims against the Crown in the field of international affairs. In this case, the detention of a Pakistani national by British forces and their transfer to US custody (under which he was detained for 10 years) were “Crown acts of state” for which the UK Government can not be liable under the UK's tort laws.

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HRLC AdminHuman Rights Law & Institutions