‘Paperless Arrest’ police powers of detention validated but constrained

North Australian Aboriginal Justice Agency Limited v Northern Territory [2015] HCA 41 (11 November 2015)

The High Court of Australia has upheld the validity of laws granting police in the Northern Territory new powers of post-arrest detention for infringement notice offences.  However, it adopted an interpretation of the legislation which confines their exercise.

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The Rights of People with Disabilities

In the Matter of ER (Mental Health and Guardianship and Management of Property) [2015] ACAT 73

On 29 October a panel of three ACT Civil and Administrative Tribunal (ACAT) members confirmed that a finding that a person lacked capacity under guardianship law, did not automatically negate that person’s capacity for the purposes of mental health treatment. In light of the UN Convention on the Rights of Persons with Disabilities (UNCRPD), questions of capacity are becoming increasingly central to the treatment of people with disabilities under Australian law.

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European Court of Human Rights examines definition of genocide

Vasiliauskas v Lithuania (European Court of Human Rights, Grand Chamber, Application No 35343/05, 20 October 2015) 

The European Court of Human Rights has reversed the conviction of a former Lithuanian state security agent on charges of genocide in the case of Vasiliauskas v. Lithuania no. 35343/05. In a 9:8 split between the 17 judges of the Grand Chamber, the Court examined the definition of the crime of genocide. Specific attention was given to the question of what constitutes genocide of a 'part' of a group.

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The importance of free and fair elections

Gahramanli and Others v Azerbaijan (European Court of Human Rights, Chamber, Application No 36503/11, 8 October 2015)

The European Court of Human Rights has recently confirmed that Azerbaijan, in its 2010 parliamentary elections, failed to comply with its European Convention on Human Rights obligations to hold elections under free and fair conditions, and to ensure that individual electoral rights can be exercised effectively. This was not due to a factual finding that there had been electoral irregularities, but rather due to the failure of Azerbaijani authorities to adequately address the applicants’ ‘serious and arguable’ complaints of irregularities. 

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Prospect of indefinite detention halts extradition

The Government of the United States of America v Giese [2015] EWHC 2733 (Admin) (07 October 2015)

The UK High Court found that a District Court judge was correct in refusing to extradite Mr Alan Giese to the United States, where he faced serious charges of sexually assaulting a teenage boy. The appeal was pursuant to section 105 of the Extradition Act 2003 (UK) and was lodged by the United States’ Government. The relevant question hinged on the application of Article 5 of the European Convention on Human Rights (ECHR) and whether the civil commitment for serious sex offenders laws in California breached this provision.

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High Court upholds validity of ban on developer donations to political campaigns

McCloy v New South Wales [2015] HCA 34

On 7 October 2015, the High Court upheld the constitutional validity of NSW laws which imposed caps on political donations, banned donations from property developers and prohibited indirect campaign contributions. The Court held that the laws did not impermissibly burden the implied freedom of political communication.

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Minister found liable for wrongful conduct of police towards domestic violence victim

Charmaine Naidoo v Minister of Police (20431/2014) [2015] ZASCA152 (2 October 2015)

In the recent decision the Supreme Court of Appeal of South Africa overturned a decision of the High Court of Johannesburg to hold that the Minister of Police was vicariously liable for the wrongful conduct of certain members of the South African Police Service towards a domestic violence victim.

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Victims of family violence entitled to state protection

Dlanjwa v The Minister of Safety and Security [2015] ZASCA 147

The Supreme Court of Appeal of South Africa (SCASA) found that the Plaintiff, who was shot by her husband in her family home, was entitled to damages against the Minister of Safety Security and the Station Commander of Ngangelizwe Police Station (Mthantha) for their failure to properly investigate and act on the Plaintiff’s complaints that her husband was abusing her and owned a gun that he had repeatedly used to threaten her with violence and death.

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