Three convicted and sentenced in Australia’s first female genital mutilation trial
R v A2; R v KM; R v Vaziri (No. 23) [2016] NSWSC 282 (18 March 2016)
The first three people in New South Wales to stand trial for female genital mutilation (FGM) related offences have been convicted and sentenced. Following a nine week trial, and a series of pre-trial applications dealing with evidentiary and procedural questions including the compellability of the child victims to give evidence for the prosecution against their mother (one of the defendants), the defendants were convicted of offences under section 45 of the Crimes Act 1900 (NSW) (the Act). Each was sentenced to 15 months’ imprisonment (with a non-parole period of 11 months) and referred for assessment as to suitability for home detention.
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Supreme Court criticises Queensland Parole Board for egregious errors, in relying on “high security” classification and disregarding evidence
Abbott v Queensland Parole Board [2016] QSC 22 (24 February 2016)
The Supreme Court of Queensland has set aside a decision to refuse parole to one of Australia’s most high-profile ‘high security’ prisoners, highlighting that any refusal of parole because of a prisoner’s custodial misconduct must be closely supported by evidence, rather than inferences to that effect.
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Not guilty by association – Supreme Court UK and Privy Council landmark decision clarifies the mental element required for secondary criminal liability
R v Jogee and Ruddock v The Queen [2016] UKSC 8; [2016] UKPC 7 (18 February 2016)
It is a fundamental principle of criminal law in many jurisdictions that a person who assists or encourages another to commit a crime (an accessory) is guilty of the same offence as the principal offender. The case of Chan Wing-Siu v The Queen [1985] AC 168 introduced a new principle widening the application of the law of secondary liability whereby if two people set out to commit an offence (crime A), and in the course of that joint enterprise one of them (D1) commits another offence (crime B), the second person (D2) is nevertheless guilty as an accessory to crime B if he had foreseen the possibility that D1 might act as they did. This principle is commonly referred to as ‘parasitic accessory liability’ or ‘joint enterprise liability’.
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High Court rejects challenge to offshore detention
Plaintiff M68/2015 [2016] HCA 1 (3 February 2016)
In a highly anticipated decision the High Court has rejected a constitutional challenge to the Federal Government’s regional processing framework. The majority of the Court held that s198AHA of the Migration Act 1958 (Cth) (Act) authorised the Commonwealth Government’s participation in the plaintiff’s detention. This decision was made after retrospective legislation was introduced after the case was filed with retrospective operation.
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Limiting civil partnerships in UK to same-sex couples does not breach ECHR
R (Steinfeld and Keidan) v Secretary of State for Education [2016] EWHC 128 (Admin) (29 January 2016)
The UK High Court held that the enactment of same-sex marriage legislation in 2013 did not render restrictions on opposite-sex couples entering into civil partnerships incompatible with the European Convention of Human Rights.
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Flawed funding found to be discrimination against First Nations children and families
First Nations Child and Family Caring Society of Canada et al. v Attorney General of Canada [2016] CHRT 2 (26 January 2016)
In a significant decision handed down by the Canadian Human Rights Tribunal, it was found that the Canadian Government discriminated against First Nations children and families living on reserve and in the Yukon Territory by failing to provide them with equitable child welfare services.
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Working Group on Arbitrary Detention and Julian Assange
Opinion No. 54/2015 concerning Julian Assange (Sweden and the United Kingdom of Great Britain and Northern Ireland), distributed 22 January 2016
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Queensland Family Court approves sterilising surgery on 5 year old intersex child
Re: Carla (Medical Procedure) [2016] FamCA 7
The Family Court in Queensland made an order authorising the parents of a five year old girl to consent to her undergoing certain medical procedures, including a gonadectomy, and held that court authorisation of this medical treatment was unnecessary. This case raises serious human rights implications about oversight of medical treatment on intersex children in Australia.
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Police had power to question journalists in contact with whistle blower Edward Snowden
Regina (David Miranda) v Secretary of State for the Home Department; Commissioner of Police of the Metropolis [2016] EWCA Civ 6
The UK Court of Appeal has upheld the exercise of a police power under Schedule 7 of the Terrorism Act 2000 (UK) (the Act) to stop and question a person to determine whether they are or have been 'concerned in the commission, preparation or instigation of acts of terrorism'. Importantly, the Court has also declared that Schedule 7 is incompatible with the right to freedom of expression under article 10 of the European Convention of Human Rights (the Convention), insofar as it applies to journalistic material.
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Right to Privacy: Messaging your friends at work? You may be watched
Case of Bărbulescu v Romania (Application no. 61496/08) (12 January 2016)
Bǎrbulescu v Romania concerns an employee challenging his termination based on his use of his work computer for personal communication. The European Court of Human Rights (ECHR) held by 6 votes to 1 that although Mr Bǎrbulescu’s employer reading his personal Yahoo Messenger messages was an interference with his right to respect for private life and correspondence within the meaning of Article 8 of the European Convention on Human Rights, the right was not violated as the interference was limited in scope and proportionate.
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Gender dysphoria treatment: Capacity to consent and the role of the court
Re: Martin [2015] FamCA 1189 (23 December 2015)
The parents of a 16 year old child (identifying as male) sought a declaration that their son was competent to consent to stage two cross-sex hormone treatment for gender dysphoria. Justice Bennett of the Family Court of Australia followed the approach set out by the Full Court of the Family Court in Re: Jamie [2013] FamCAFC 110 (Re Jamie) of considering whether the child was competent to consent to the treatment according to the test in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. While considering herself bound by Re Jamie, her Honour expressed strong criticism of the Full Court’s decision and of the current position under Australian law which requires a court authorisation before stage two treatment for gender dysphoria can be undertaken.
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All are equal before the law: legal aid as a human right
Bayley v Nixon and Victoria Legal Aid [2015] VSC 744
In Bayley v Nixon and Victoria Legal Aid, Bell J upheld the principle that every person stands equal before the law. Although Bayley had been convicted of very serious crimes, his request for legal aid should not have been rejected without proper basis. As His Honour stated at [73]: “It is not lawful to reject an application for legal assistance, including for legal assistance in relation to a criminal appeal, upon the sole ground that the applicant is a notorious and unpopular individual who has already been convicted of and sentenced for heinous crimes.”
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Blanket mental health exclusion clause in travel insurance policy amounted to unlawful discrimination
Ingram v QBE Insurance (Australia) Ltd [2015] VCAT No H107/2014 (18 December 2015)
The Victorian Civil and Administrative Tribunal (VCAT) found QBE Insurance (Australia) Limited (QBE) unlawfully discriminated against Will Ingram on the basis of his disability, namely a mental illness, contrary to the Equal Opportunity Act 2010 (EOA) when it included a blanket mental health exclusion in the travel insurance policy issued to Ingram and when it rejected his claim by relying on that clause.
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High Court considers the Government’s refugees processing priorities policy
Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50 (17 December 2015)
The High Court declined to overturn a decision of a Delegate of the Minister for Immigration and Border Protection, which refused the grant of a permanent visa to the family of an Iranian man, who was already in Australia on a protection visa. The Court held that despite the persuasive evidence put forward by the plaintiff in advancement of the application, it was open to the Delegate to decline the grant of the visa, as the evidence was not so compelling, when factoring in the limited capacity of Australia to accommodate refugees, as to warrant special consideration by the Delegate.
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Unanimous High Court finds two routes to the same outcome on jurisdictional error
Wei v Minister for Immigration and Border Protection [2015] HCA 51
The High Court of Australia has recently handed down a unanimous judgment quashing a decision of the Minister for Immigration and Border Protection to cancel an international student visa, on the basis that the decision was reached by a process of fact-finding that was tainted by a third party’s failure to perform its imperative statutory duty. The decision was thus tainted by jurisdictional error.
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UN Human Rights Committee Considers Australian Breaches of the International Covenant on Civil and Political Rights
Zoltowski v Australia, HRC, Communication No 2279/2013, UN Doc CCPR/C/115/D/2279/2013 (7 December 2015)
The UN Human Rights Committee (‘Committee’) decision in Zoltowski v Australia established that a State party is required to allow contact between family members during family law proceedings. A failure to do so can amount to arbitrary interference with the family in violation of articles 17(1), 23(1) and 24(1) of the International Covenant on Civil and Political Rights (‘Covenant’). Further, the decision confirmed that a failure to deal expeditiously with a family law matter, without providing some ‘provisional access scheme’, can amount to a violation of the fair hearing provision in article 14(1) of the Covenant. An exception to these findings is if the failure to adopt such measures is in the best interests of the child.
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Court rejects army’s decision to sack Major for homophobic slurs on social media
Gaynor v Chief of the Defence Force (No 3) [2015] FCA 1370
Justice Buchanan of the Federal Court has set aside a decision of the Chief of Defence Force (“CDF”) that terminated the commission of Bernard Gaynor, a Major in the Australian Army Reserve of Roman Catholic faith, due to Gaynor’s public comments on social media and his personal website. His Honour held that the decision to terminate Gaynor’s commission imposed an unreasonable burden on the implied constitutional freedom of political communication.
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Secret surveillance in Russia violates the right to privacy
Zakharov v Russia (European Court of Human Rights, Grand Chamber, Application no. 47143/06, 4 December 2015)
The Grand Chamber of the European Court of Human Rights has unanimously held that the Russian system of secret interception of mobile telephone communications was a violation of article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Article 8 guarantees, among other things, the right to respect for private life and correspondence. In addition, the Court accepted that if certain conditions are satisfied an applicant can claim to be the victim of a violation of article 8 due to the mere existence of a secret surveillance measure. The conditions were met in this case, therefore the applicant did not have to demonstrate that he was at risk of being subject to secret surveillance. Instead, the legislation was examined in the abstract.
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A step in the right direction for reproductive rights in Northern Ireland
The Northern Ireland Human Rights Commission’s Application [2015] NIQB 96 (30 November 2015)
The High Court of Justice in Northern Ireland has found that the failure of the law in Northern Ireland to provide exceptions in two circumstances to the prohibition of abortion is contrary to Article 8 of the European Convention on Human Rights. Sections 55 and 59 (Offences Against the Person Act 1861) and section 25 (Criminal Justice Act (NI) 1945) prohibit and punish any act that is intended to procure a miscarriage, with the one exception being if that is done for the purpose of preserving the mother’s life. The Court held that the following two exceptions to this prohibition should be permitted: (1) cases of fatal foetal abnormality (FFA) for termination at any stage; and (2) pregnancies due to rape and incest (sexual crime) for termination up to the date when the foetus is capable of existing independently of the mother.
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Supreme Court of Canada reads down 'overbroad' people smuggling laws
B010 v Canada (Citizenship and Immigration) [2015] 3 SCR 704 (27 November 2015)
R v Appulonappa [2015] 3 SCR 754 (27 November 2015)
The Supreme Court of Canada has handed down twin rulings narrowing the interpretation of people smuggling laws in relation to both the offence of people smuggling, and the inadmissibility of migrants alleged to have been involved in people smuggling. McLachlin CJ delivered the leading judgment in both cases, with whom all judges unanimously agreed. The separate but related proceedings of B010 v Canada and R v Appulonappa considered two key people smuggling provisions in the Immigration and Refugee Protection Act (IRPA) – B010 v Canada considered the inadmissibility of people smugglers, while R v Appulonappa considered the prosecution of people smugglers.
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‘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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Victorian Court of Appeal on baseline sentences
DPP v Walters [2015] VSCA 303
The Victorian Court of Appeal, in a four to one majority, has found baseline sentencing provisions in the Sentencing Act 1991 (Vic) (the Act) to be “incapable of being given any practical operation”.
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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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Right to peaceful assembly upheld by European Court of Human Rights
Mammadov v Azerbaijan (European Court of Human Rights, Grand Chamber, Application No 60259/11, 15 October 2015)
The European Court of Human Rights found that the arrest and conviction of peaceful pro-democracy protesters in Azerbaijan was in bad faith and breached the right to freedom of peaceful assembly.
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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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NT Supreme Court on the right to liberty
R v KRJ [2016] SCC 31 (21 July 2016)
The Supreme Court of the Northern Territory has upheld the right to liberty by excluding evidence of offences committed after a legal, but improper, arrest by police officers for drinking in a public place.
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Responding to and preventing family violence: The need for a comprehensive and integrated system
Inquest into the death of Luke Geoffrey Batty [2015] Coroners Court of Victoria
Commonwealth, Royal Commission into Family Violence, Report and Recommendations (2016)
Luke Geoffrey Batty (Luke) was killed by his father, Gregory Anderson (Mr Anderson), on 12 February 2014. An inquest was held into Luke’s death in late 2014. The inquest did not focus on the immediate cause of Luke’s death – this was plain on the facts. The State Coroner, Judge Gray, instead investigated the interactions that Luke and his mother (Ms Batty) had with the family violence system in Victoria in the 18 months prior to Luke’s death. Judge Gray found that no one person or organisation caused or directly contributed to Luke’s death. However, his Honour did recognise some systemic flaws and made a number of recommendations for improvement.
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Supreme Court declines to compel Melbourne City council to remove anti-abortionists from fertility clinic
Fertility Control Clinic v Melbourne City Council [2015] VSC 424 (26 August 2015)
On 26 August 2015, Justice McDonald of the Victorian Supreme Court handed down judgement in a case concerning the local government’s duties to remedy harmful activities of anti-abortionists outside an East Melbourne fertility clinic. His Honour found that although the Melbourne City council (the council) has a duty to remedy nuisances under the Public Health and Wellbeing Act 2008 (Vic) (the Act) and that the anti-abortionists’ activities may constitute a nuisance, nonetheless in this case there had been no actual or constructive failure by the council to perform its duties under the Act.
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High Court of Delhi recognises pregnancy-based discrimination as a form of sex discrimination
Inspector (Mahila) Ravina v Union of India W.P.(C) 4525/2014, 6 August 2015
In Inspector (Mahila) Ravina v Union of India, the High Court of Delhi held that the Central Reserve Police Force’s (CRPF) denial of promotion to a CRPF female inspector owing to her pregnancy violated the individual’s right to personal liberty and equality in matters of public employment under the Constitution of India (Constitution).
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Supreme Court orders IBAC to reconsider complaint of cruel, inhuman or degrading treatment by Victoria Police
Bare v IBAC [2015] VSCA 197 (29 July 2015)
On 29 July 2015, the Court of Appeal, by majority, allowed an appeal by Nassir Bare against a decision of a single judge of the Supreme Court. The trial judge upheld the original decision of the Director (Director) of the Office of Police Integrity (OPI) not to investigate a complaint against a member of Victoria Police of cruel, inhuman or degrading treatment. The Court of Appeal quashed the Decision and ordered the Independent Broad-based Anti-corruption Commission (IBAC) – which has since replaced the OPI – to reconsider Mr Bare's complaint in accordance with the Charter of Human Rights and Responsibilities Act 2006 (Charter).
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Presumption against extraterritoriality prevents apartheid victims from suing US corporations
Balintulo v. Ford Motor Co., 796 F.3d 160 (2d Cir. 2015)
The US Court of Appeal held that it did not have jurisdiction under the Alien Tort Statute to hear the plaintiffs’ claim that Ford and IBM aided and abetted crimes committed against them during South African apartheid. The decision confirmed that the presumption against extraterritoriality will only be displaced where the relevant conduct touches and concerns the US and constitutes a violation (or aiding or abetting a violation) of customary international law. In order to demonstrate that a defendant has aided or abetted a violation the plaintiff must show that the defendant engaged in the conduct for that purpose.
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Tribunal clarifies when police actions are 'services' for the purpose of discrimination law
Djime v Kearnes (Human Rights) [2015] VCAT 941 (26 June 2015)
To be covered by the Equal Opportunity Act 2010 (Vic) (the Act), members of the public alleging discrimination by police need to prove that the discrimination occurred in the provision of ‘goods and services’. A recent Victorian Civil and Administrative Tribunal (VCAT) decision clarifies the definition of ‘services’ in the Act as it relates to policing.
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US Supreme Court decides in favour of marriage equality
Obergefell v Hodges, 576 U.S. ___ (2015) (26 June 2015)
The recent decision of the Supreme Court of the United States in Obergefell v Hodges is a landmark victory that activists have been working towards for over a decade. In a 5-4 judgment the Supreme Court held that the Fourteenth Amendment to the Constitution requires States of the United States to licence marriage equality.
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Court rules Netherlands must take more action to reduce greenhouse gas emissions
The Urgenda Foundation v The State of the Netherlands (Ministry of Infrastructure and the Environment), C/09/456689/ HA ZA 13-1396 (English translation) (24 June 2015)
In a landmark decision The Hague District Court, partly relying on human rights law, has ordered the Dutch Government to take more action to reduce greenhouse gas emissions in the Netherlands.
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Landmark ruling for same sex couples in Italy
Oliari and Others v Italy (European Court of Human Rights, Chamber, Applications Nos. 18766/11 and 36030/11, 21 July 2015)
The European Court of Human Rights has concluded that Italy must provide legal recognition of same-sex couples. The ruling confirmed that Italy, by denying recognition to same-sex couples, was in violation of Article 8 of the European Convention on Human Rights, which provides for the right to respect for privacy and family life.
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NSW Supreme Court holds adoption order may be enforced by concerned non-parties, but not reviewed or amended
Secretary, New South Wales Department of Family and Community Services by his delegate Principal Officer, Adoptions, Barnardos Australia; Re JLR [2015] NSWSC 926
Justice Bergin, the Chief Judge in Equity in the NSW Supreme Court, found that a person not party to an adoption (in this case, a paternal grandmother) may have standing to enforce an adoption plan if the plan is registered under the Adoption Act 2000 (NSW) (Adoption Act), but not to review or amend it.
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Russian prisoner serving life sentence challenges restrictions on family visits
Khoroshenko v Russia (European Court of Human Rights, Grand Chamber, Application No. 41418/04, 30 June 2015)
The European Court of Human Rights found that serious restrictions on a life prisoner’s family visits violated Article 8 of the European Convention on Human Rights. The restriction was non-rehabilitative in nature and its undifferentiated application to all life-sentence prisoners were disproportionate.
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Failure to conduct a proper criminal investigation found to violate European Convention
The Commissioner of Police v Alio Korau [2015] EWCA Civ 646
The Court of Appeal held that Article 3 of the European Convention of Human Rights (Convention) imposes a positive obligation on police to conduct a proper investigation into credible or arguable allegations of criminal conduct.
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“Curing homosexuality” found to be a fraudulent business practice
Ferguson v. JONAH (Sup Ct of NJ, Docket No. HUD-L-5473-12, 25 June 2015)
In June 2015, a jury unanimously found in favour of five plaintiffs who filed a suit claiming that counselling and therapy provided by JONAH (Jews Offering New Alternatives for Healing) contravened New Jersey consumer fraud legislation. The plaintiffs claimed that JONAH engaged in misrepresentations and unconscionable commercial practices by claiming that homosexuality was a mental disorder and that JONAH’s services could reduce or eliminate this disorder. A jury found unanimously in favour of the plaintiffs and awarded a total of US $72,400 in damages.
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Family Court finds 15 year old “Jamie” competent to make own decision about stage two treatment for gender dysphoria
Re: Jamie [2015] FamCA 455 (16 June 2015)
The Family Court of Australia has found that 15 year old “Jamie”, the subject of the often-cited decision of the Full Court of the Family Court in Re: Jamie [2013] FamCAFC 110 (Re Jamie 2013), was competent to consent to the stage two treatment for gender dysphoria and authorised her to make her own decision in relation to that treatment. This case is one of many being heard by the Family Court following the decision in Re Jamie 2013 that whilst court authorisation is unnecessary for stage one treatment for gender dysphoria, the nature of stage two treatment requires the Court to determine the child’s “Gillick competence” to make the decision.
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UK High Court declares asylum seeker “Fast Track appeal” regime unlawful
Detention Action v First-Tier Tribunal (Immigration and Asylum Chamber) & Ors [2015] EWCH 1689 (Admin)
The High Court of England and Wales has found that the “Fast Track” appeal process, which imposed extremely short timelines for hearing appeals against asylum seeker application decisions, was ultra vires, or beyond power, as a result of structural unfairness.
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Distinguishing deprivation of liberty from empathetic care: will we 'know it when we see it'?
Bournemouth Borough Council v PS & Anor [2015] EWCOP 39
The UK Court of Protection was recently asked to rule whether the care regime of a 28-year-old man with severe autism ('Ben') amounted to a deprivation of liberty. Justice Mostyn ultimately concluded that the arrangements were in Ben's best interests, and did not amount to deprivation of liberty under Article 5 of the European Convention of Human Rights (ECHR). The Court declined to provide a test for 'deprivation of liberty' noting simply that the Court would 'know it when we see it'.
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High Court finds that non-violent homosexual advance can amount to provocation
Lindsay v The Queen [2015] HCA 16
A recent decision of the High Court of Australia allows the partial defence of provocation to be left to a jury in circumstances where the accused claims to have been provoked by a non-violent homosexual advance.
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Blood donor exclusions based on sexual orientation may amount to unlawful discrimination
Geoffrey Léger v the French Ministry of Health and the French Blood Service (European Court of Justice, C‑528/13, 29 April 2015)
French health policy imposes a life-time ban on blood donations from men who have sex with men. Asked to consider the legality of such a ban, the European Court of Justice held that the policy was discriminatory, but may be justifiable on the basis of public health. Whether it is justifiable will depend on the prevalence of HIV in the country and the availability of less onerous means of protecting blood supplies. The Court referred the matter back to the Administrative Tribunal for determination.
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