Posts tagged Human Rights Law & Institutions
European Court of Human Rights finds that authorities systemically failed to prevent gender-based violence

Tkhelidze v Georgia (Application no. 33056/17)

The European Court of Human Rights (the Court) unanimously held that the Government of the country of Georgia (the Respondent) violated Articles 2 and 14 of the Convention of the European Convention on Human Rights (the Convention). The Applicant, a resident of Georgia, complained under Articles 2 and 14 of the Convention that the Georgian authorities’ failed to protect her daughter from domestic violence and to conduct an effective criminal investigation.

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Case Notes European Court of Human RightsGuest UserHuman Rights Law & Institutions
Supreme Court of Victoria finds that random urine testing, and associated strip searches, are incompatible with human rights

Minogue v Thompson [2021] VSC 56 (16 February 2021)

The Victorian Supreme Court has found that whilst being held in prison, a person’s right to privacy and the right to be treated with dignity while deprived of liberty under the Charter of Human Rights and Responsibilities Act 2006 (Vic) were violated when he was subjected to random drug and alcohol testing and a strip search before providing a urine sample for such testing. While Justice Richards found that Dr Minogue’s Charter rights were breached, Her Honour is yet to make orders on relief.

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Case Notes, Case Notes 13- Prison/Conditions of Detention, Case Notes 14- Privacy, Case Notes Supreme Court of Victoria, Victorian charter of human rightsAnnaFordycePrisoner Rights, Privacy, Human Rights Law & Institutions
New Zealand High Court finds the voting age restriction a justified limit on protected rights

Make It 16 Incorporated v Attorney-General [2020] NZHC 2630

The New Zealand High Court upheld the minimum voting age at 18 years as a justified limit on the right to be free from discrimination on the basis of age. As the Court found the age to be within a range of reasonable alternatives, this decision deferred the question of whether the voting age should be lowered to Parliament to decide.

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Case Notes, Case Notes 07- Equality/Non-Discrimination, Case Notes 20- Political participation, Case Notes International, Case Notes s07 - Limitations on Human RightsAnnaFordyceDemocratic Freedoms, Human Rights Law & Institutions
The Inter-American Court of Human Rights calls for the recognition and protection of LGBTI rights

Inter-American Court of Human Rights OC-24/17 of 24 November 2017 – Gender identity, equality and non-discrimination of same-sex couples

The Inter-American Court of Human Rights has recognised the obligation of all member States to ensure same-sex marriages are protected by law and treated equally to heterosexual marriages. The Court also called for member States to put in place an administrative procedure to allow a person to easily change their registered personal information to correspond with their own self-perceived gender identity.

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HRLC AdminLGBTI Rights, Human Rights Law & Institutions
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
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
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
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
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
Police violated common law and Charter rights during the 2010 G20 summit in Toronto

Figueiras v Toronto (Police Services Board) 2015 ONCA 208 (30 March 2015)

The Ontario Court of Appeal in Canada has unanimously held that Toronto Police breached the appellant’s rights to freedom of expression and liberty during the 2010 G20 summit when preventing him from entering a certain part of the city after he did not consent to a search of his belongings. The Court found that such conduct was not authorised as a common law police power.

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MichelleBennettDemocratic Freedoms, Police, Human Rights Law & Institutions
VCAT has jurisdiction to consider claims of Charter breaches

Goode v Common Equity Housing [2014] VSC 585 (21 November 2014)

The 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.

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MichelleBennettDisability & Mental Health, Housing, Human Rights Law & Institutions
South African Police Service ordered to investigate alleged torture committed in Zimbabwe by and against Zimbabwean nationals

National Commissioner of The South African Police Service v Southern African Human Rights Litigation Centre and Another [2015] 1 SA 315 (Constitutional Court) (30 October 2014)

The 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.

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MichelleBennettHuman Rights Law & Institutions
Canadian Supreme Court holds Iran immune from torture charges

Kazemi Estate v Islamic Republic of Iran [2014] 3 SCR 176 (10 October 2014)

On 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

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MichelleBennettHuman Rights Law & Institutions, Democratic Freedoms
Appeal to Occupy Melbourne decision dismissed

Kerrison v Melbourne City Council [2014] FCAFC 130 (3 October 2014)

The 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.

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MichelleBennettDemocratic Freedoms, Human Rights Law & Institutions
Russian delay for Scientology in breach of religious freedoms protected in European Convention

Church of Scientology of St Petersburg & Others v Russia (European Court of Human Rights, Chamber, Application No 47191/06, 2 October 2014)

The 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

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MichelleBennettDemocratic Freedoms, Human Rights Law & Institutions
UK High Court upholds Council's decision to close aged-care home

Karia, R (on the application of) v Leicester City Council [2014] EWHC 3105 (Admin) (30 September 2014)

The 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'.

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MichelleBennettDemocratic Freedoms, Housing, Discrimination & Equality, Human Rights Law & Institutions
ECHR Grand Chamber finds deprivation of liberty does not violate EU Convention where carried out in accordance with Geneva Conventions

Hassan v The United Kingdom (European Court of Human Rights, Grand Chamber, Application No 29750/09, 16 September 2014)

In 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.

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MichelleBennettPrisoner Rights, Human Rights Law & Institutions
Extradition a violation of the prohibition against inhuman or degrading treatment

Trabelsi v Belgium (European Court of Human Rights, Chamber, Application No 140/10, 4 September 2014)

The 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.

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MichelleBennettPrisoner Rights, Counter-terrorism, Human Rights Law & Institutions
European Court upholds France's burqa ban

S.A.S v France (European Court of Human Rights, Grand Chamber, Application No 43835/11, 1 July 2014)

On 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.

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MichelleBennettPrivacy, Democratic Freedoms, Human Rights Law & Institutions, Discrimination & Equality
UK Government’s detention regime in Afghanistan breaches human rights

Mohammed v Ministry of Defence [2014] EWHC 1369 (QB) (2 May 2014)

In 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.

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MichelleBennettPrisoner Rights, Human Rights Law & Institutions
Christian Youth Camp’s refusal of booking request to same-sex attracted youths was unlawful discrimination

Christian Youth Camps Limited v Cobaw Community Health Service Limited [2014] VSCA 75 (16 April 2014)

The 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).

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MichelleBennettLGBTI Rights, Discrimination & Equality, Human Rights Law & Institutions
Church ban on public worship in languages other than English is not unlawful discrimination

Iliafi v The Church of Jesus Christ of Latter-Day Saints Australia [2014] FCAFC 26 (19 March 2014)

The 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.

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MichelleBennettDiscrimination & Equality, Democratic Freedoms, Human Rights Law & Institutions
Court power to remedy a human rights breach does not need to be expressly included in human rights legislation

LM v Childrens Court of The Australian Capital Territory and The Director of Public Prosecutions for the ACT [2014] ACTSC 26 (24 February 2014)

The 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.

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MichelleBennettChild Rights, Human Rights Law & Institutions
Failure to adequately investigate claim of excessive police force a violation of ECHR

Gramada v Romania (European Court of Human Rights, Chamber, Application No 1497/09, 11 February 2014)

The European Court of Human Rights has found that the failure by Romanian authorities to adequately investigate whether a police officer who shot Mr Gramada in the thigh had used excessive force was violation of the prohibition on torture, inhuman or degrading treatment (article 3, European Convention on Human Rights).

The Romanian authorities and courts had concluded that the police officer was justified in using force in the circumstances, even though his actions were disproportionate to the threat he faced, because he thought he was being threatened by armed men, and was scared and confused. However, the ECtHR noted that this conclusion was based on acceptance of the police officer’s testimony despite its inconsistency with other evidence, and highlighted serious flaws in the investigation, including the failure to obtain a ballistics report, and the failure to reconstruct the events on-site, which was normally standard procedure in these kind of cases. In these circumstances, the criminal investigation that had been conducted did not provide sufficient redress for the violation of Mr Gramada’s rights under article 3. 

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MichelleBennettPolice, Human Rights Law & Institutions
Failure to protect from sexual abuse constitutes violation of freedom from inhuman and degrading treatment

O'Keeffe v Ireland (European Court of Human Rights, Grand Chamber, Application No 35810/09, 28 January 2014) 

The Grand Chamber of the European Court of Human Rights found that the State of Ireland failed in its obligation to protect the applicant from sexual abuse she suffered as a child in an Irish National School and therefore violated her rights under article 3 (prohibition of inhuman and degrading treatment) and article 13 (right to an effective remedy) of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention). This case is not concerned with the responsibility of the perpetrator, but rather with the responsibility of the State, and whether the State ought to have been aware of the risk of sexual abuse of minors in Irish National Schools at the relevant time and whether adequate legislative protection was in place.

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MichelleBennettChild Rights, Human Rights Law & Institutions
Hair and facial hair grooming policies do not interfere with freedom of expression

Kuyken v Lay (Human Rights) [2013] VCAT 1972 (29 November 2013)

The Victorian Civil and Administrative Tribunal has dismissed the claims of 16 police officers (the applicants) that they were discriminated against by the introduction, promulgation and enforcement of a new policy which banned male officers from having long hair or facial hair (other than a moustache). VCAT found that the applicants had been directly discriminated against in the enforcement of the policy, by the threat of disciplinary action, and through an email implying the applicants were unprofessional and not trustworthy. However, that discrimination was not found to be unlawful as it was considered to be authorised by the Police Regulation Act 1958 (Vic) (PR Act). A victimisation claim was also dismissed, as was the applicants’ claims that the respondent had failed to properly consider their right to freedom of expression in the Charter of Human Rights and Responsibilities 2006 (Vic).

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MichelleBennettDemocratic Freedoms, Human Rights Law & Institutions, Discrimination & Equality
South African Police required to investigate crimes against humanity committed in Zimbabwe

National Commissioner of the South Africa Police Service and Another v Southern Africa Litigation Centre and Another (485/2012) [2013] ZASCA 168 (27 November 2013)

The South African Supreme Court of Appeal (SCA) held that, in terms of the Implementation of the Rome Statute of the International Criminal Court Act 22 of 2002 (ICC Act), the South African Police Service (SAPS) is competent and required to investigate acts of torture that constitute a crime against humanity, committed in Zimbabwe by Zimbabweans.

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MichelleBennettPolice, Human Rights Law & Institutions
21 day cell confinement amounts to failure to treat prisoner with humanity and respect for inherent dignity

Vogel v Attorney General & Ors CA 171/2012 [2013] NZCA 545 (7 November 2013)

The New Zealand Court of Appeal has found that sentencing a prisoner to 21 days cell confinement can amount to a breach of the obligation to treat detained persons with humanity and respect for their inherent dignity. The content of the obligation is to be determined not only through international jurisprudence, but by the statutory standards and domestic values and practices in New Zealand. It is not only the potential breach of such standards, but the effect that the confinement would have on the particular individual that must be considered when sentencing them to a period of cell confinement.

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MichelleBennettPrisoner Rights, Human Rights Law & Institutions
Greece’s exclusion of same-sex couples from civil unions breaches prohibition of discrimination and right to privacy and family life

Vallianatos v Greece [2013] ECHR, Applications nos. 29381/09 and 32684/09 (7 November 2013)

Greece introduced ‘civil unions’ as an official form of partnership other than marriage for different-sex couples only. The applicants challenged the civil union law on the basis that it breached the prohibition on discrimination on the basis of sexual orientation and the right to respect for privacy and family life under the European Convention on Human Rights (Convention). The European Court of Human Rights (ECtHR) held that the law’s differential treatment of same-sex couples was not proportionate to the aims of protecting marriage and the family “in the traditional sense”. The law therefore breached Article 8 in conjunction with Article 14 of the Convention.

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MichelleBennettDiscrimination & Equality, LGBTI Rights, Human Rights Law & Institutions
Nudity is a form of expression, but the right to nudity is subject to limitations

Gough v Director of Public Prosecutions [2013] EWHC 3267(Admin) (31 October 2013)

The High Court of England and Wales has recognised public nudity as form of expression but held that limiting such expression is valid in the public interest. While the Court agreed that public nudity engages Article 10 of the European Convention on Human Rights (ECHR) being the right to freedom of expression, the court upheld the primary judge's conclusion that there was a pressing social need for the restriction of his right to be naked in the context of this case.

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MichelleBennettDemocratic Freedoms, Human Rights Law & Institutions
ACT Supreme Court clarifies the principles applicable to the determination of 'unreasonable delay'

R v Adam Tony Forsyth [2013] ACTSC 179 (31 October 2013)

The Supreme Court of the Australian Capital Territory has refused to grant a stay of proceedings to an accused facing prosecution, on the basis that, while the accused suffered unreasonable delay in having the matter brought to trial, the prosecution had not acted unlawfully in continuing to pursue the case.

The decision also makes clear that it is not necessary for a party to demonstrate that they suffered prejudice in order to establish that there has been an unreasonable delay in bringing them to trial. Rather, this will be a factor relevant to the determination of an appropriate remedy.

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MichelleBennettHuman Rights Law & Institutions
UK Supreme Court leaves decision on prisoner voting rights to parliament

R (on the application of Chester) v Secretary of State for Justice [2013] UKSC 63 (16 October 2013)

Two prisoners serving life sentences for murder claimed that their rights had been infringed by reason of their prohibition from voting in elections. The United Kingdom Supreme Court unanimously dismissed both appeals.

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MichelleBennettPrisoner Rights, Democratic Freedoms, Human Rights Law & Institutions
DNA collection a legitimate interference with privacy rights

R (on the application of R) v A Chief Constable [2013] EWHC 2864 (Admin) (24 September 2013)

The UK High Court of Justice held that the power to demand a non-intimate sample from an individual previously convicted of serious offences without that individual’s consent was a proportionate interference with the right of respect for that person’s private life.

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MichelleBennettPrivacy, Human Rights Law & Institutions
The right to life and the requirement to properly investigate death

Antoniou, R (on the application of) v Central and North West London NHS Foundation Trust & Ors [2013] EWHC 3055 (Admin) (10 October 2013)

This decision of the England and Wales High Court (Administrative Court) considered the scope of a State's procedural obligation to investigate a detained patient’s death, derived from article 2 (right to life) of the European Convention for the Protection of Rights and Fundamental Freedoms.

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MichelleBennettDisability & Mental Health, Human Rights Law & Institutions
The UK Court of Appeal considers the relevance of article 8 of the ECHR to the statutory power to deport foreign criminals

MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192 (8 October 2013)

The United Kingdom Court of Appeal held that paragraphs 398, 399 and 399A of the Immigration Rules (UK) provide a complete code for establishing when a “foreign criminal” may be deported from the UK in compliance with the right to respect for private and family life under the European Convention on Human Rights.

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MichelleBennettPrivacy, Prisoner Rights, Human Rights Law & Institutions, Foreign Policy
Smoking bans can breach human rights

CM, Re Judicial Review [2013] ScotCS CSOH_143 (27 August 2013)

This case concerns the judicial review of a smoking ban imposed at the State Hospital of Scotland. Relying on articles 1, 8 and 14 of the European Convention on Human Rights, the Court concluded that it was unlawful to prevent a person detained at the Hospital (a psychiatric patient) from smoking outside in the grounds of the Hospital.

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MichelleBennettDisability & Mental Health, Human Rights Law & Institutions
Court of Appeal examines Charter impact on statutory interpretation and the exercise of judicial discretion

Nigro v Secretary to the Department of Justice [2013] VSCA 213 (16 August 2013)

The Victorian Court of Appeal has considered the effect of the Charter of Human Rights and Responsibilities Act 2006 (Vic) on statutory interpretation in the course of interpreting statutory provisions governing the making of supervision orders for serious sex offenders. In the context of an ambiguity in a provision and two open constructions that were consistent with the provision's text and purpose, the Court applied the principle of legality and section 32 of the Charter to adopt the interpretation more compatible with an offender's rights to freedom and autonomy.

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MichelleBennettHuman Rights Law & Institutions
Protection claims and evidence of the risk of persecution for homosexuality

M.I. v Sweden, UN Doc CCPR/C/108/D/2149/2012 (14 August 2013)

The United Nations Human Rights Committee found that the deportation of M.I., a Bangladesh national, by Sweden to Bangladesh would constitute a violation of article 7 of the International Covenant on Civil and Political Rights because of the risk to M.I. of torture and other cruel, inhumane or degrading treatment or punishment if she were returned to Bangladesh.

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MichelleBennettLGBTI Rights, Discrimination & Equality, Foreign Policy, Human Rights Law & Institutions
Canadian Court strikes down minimum education requirement in voting legislation

Taypotat v Taypotat 2013 FCA 192 (13 August 2013)

The Canadian Federal Court of Appeal determined that a minimum education requirement under voting legislation breached the Canadian Charter of Rights and Freedoms by discriminating against the elderly and aboriginal peoples.

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MichelleBennettDemocratic Freedoms, Human Rights Law & Institutions, Foreign Policy, Aboriginal & Torres Strait Islander Peoples' Rights
Court makes Protective Costs Order to reduce barriers to public interest litigation

Bare v Small [2013] VSCA 204 (9 August 2013)

The Victorian Court of Appeal granted an application for a Protective Costs Order (PCO) brought by Mr Nassir Bare. Mr Bare had brought an appeal against the orders of Williams J in the Victorian Supreme Court and applied for a PCO to limit his liability to pay costs in the event that the appeal was unsuccessful. The Court granted an order limiting recoverable costs to $5,000, following submissions by Youthlaw that they would be able to raise this amount to support Mr Bare’s appeal.

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MichelleBennettPolice, Human Rights Law & Institutions
No defence of necessity in euthanasia cases, but clearer DPP policy required

Nicklinson, R (on the application of) v A Primary Care Trust [2013] EWCA Civ 961 (31 July 2013)

The England and Wales Court of Appeal (Court) declined to develop a defence of necessity where someone is accused of assisting suicide or murder in euthanasia cases. The Court also found that euthanasia related offences are not inconsistent with the right to private life under the European Convention on Human Rights (Convention). However, the Court built on an earlier decision requiring the Director of Public Prosecutions (DPP) to issue a policy setting out how the DPP will decide whether to prosecute a person for these offences, by finding that the consequences of these acts should be reasonably foreseeable to a person considering whether to assist suicide or euthanise.

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MichelleBennettHealth, Human Rights Law & Institutions
UK Supreme Court upholds legislative limitations on the right to a fair trial

Bank Mellat v Her Majesty's Treasury (No 1) [2013] UKSC 38 (19 June 2013)

A narrow majority of the UK Supreme Court has ruled that it is entitled to consider "closed materials", being materials only available to one party to a proceeding, in certain cases arising under the Counter-Terrorism Act 2008 (Act). The court, in coming to its decision, sought to balance the principles of open justice and a person's right to a fair trial with considerations of national security.

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MichelleBennettHuman Rights Law & Institutions, Counter-terrorism
State responsibility under European Convention extends to soldiers serving overseas

Smith v The Ministry of Defence [2013] UKSC 41 (19 June 2013)

The UK Supreme Court has held that British servicemen who died during service in Iraq were within the jurisdiction of the UK for the purposes of article 1 of the European Convention on Human Rights. Claims that the UK breached article 2 of the Convention by failing to implement a framework for protecting the lives of those servicemen were therefore not struck out by the Court. The Court, instead, required further facts to be examined and saved a determination on the issue for a later date.

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MichelleBennettHuman Rights Law & Institutions, Foreign Policy
Failure to take reasonable steps to promote representative jury a breach of the right to a fair hearing

R v Kokopenace, 2013 ONCA 389 (14 June 2013) (Ontario Court of Appeal)

The Ontario Court of Appeal has held that the government of Ontario's failure to take adequate steps to promote the inclusion of Aboriginal on-reserve residents in a pool of potential jurors amounted to a violation of the right to a representative jury owed to a defendant in a criminal trial, a right protected by the Canadian Charter of Rights and Freedoms. 

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MichelleBennettHuman Rights Law & Institutions, Aboriginal & Torres Strait Islander Peoples' Rights
High Court finds orders in excess of jurisdiction are valid until set aside

State of NSW v Kable [2013] HCA 26 (5 June 2013)

The High Court has found that the State had detained Mr Kable with lawful authority, notwithstanding that the source of that lawful authority was subsequently struck down on constitutional grounds. As a result Mr Kable had no remedy in tort for unlawful detention, despite his detention subsequently being held to be unlawful.

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MichelleBennettHuman Rights Law & Institutions, Prisoner Rights
Security concerns don’t trump basic procedural rights

ZZ v Secretary of State for the Home Department [2013] EUECJ C-300/11 (04 June 2013)

The Court of Justice of the European Communities (EU Court of Justice) has held that a person refused entry to an EU state on security grounds has a fundamental right to receive reasons for the decision. Notwithstanding security considerations, EU states have a core minimum obligation to provide enough information to enable the affected person to understand the basis of the decision and prepare a defence.  

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MichelleBennettHuman Rights Law & Institutions