Human Rights Case Summaries

No doubt over lawfulness of abortions

Abortion Supervisory Committee v Right to Life New Zealand Inc [2011] NZCA 246 (1 June 2011)

On 1 June 2011 the New Zealand Court of Appeal handed down its decision in the appeal and cross-appeal from the judgment of Justice Miller in the High Court’s 2008 decision in Right to Life New Zealand Inc v Abortion Supervisory Committee [2008] 2 NZLR 825 on the rights of the unborn child and the powers of the Abortion Supervisory Committee (ASC) under the Contraception, Sterilisation and Abortion Act 1977 (CSA Act). The majority (2:1) upheld Justice Miller’s finding that an unborn child has no express right to life, but held that his view that there was nevertheless “reason to doubt the lawfulness of many abortions” was inappropriate and had no legal effect. The majority also rejected Justice Miller’s finding that the ASC’s general supervisory role included a statutory obligation to audit the decisions of certifying consultants on the lawfulness of abortions in individual cases.

MichelleBennett1 June 2011Women’s Rights, Health, Foreign Policy, Human Rights Law & Institutions

European Court holds that failure to provide access to reproductive healthcare may violate prohibition against torture and ill-treatment

R.R. v Poland [2011] ECHR 828 (26 May 2011)

In this case the European Court of Human Rights (ECHR) delivered judgment in favour of an applicant, Ms R.R., who brought a case againstPoland for a violation of arts 3 and 8 of the European Convention of Human Rights. Article 3 of the Convention protects the right to freedom from inhuman and degrading treatment. Article 8 of the Convention, inter alia, protects an individual’s right to respect for privacy and family life. This case is a significant step forward in the protection of reproductive rights, with third-party comments submitted by the United Nations Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, the International Federation of Gynaecology and Obstetrics, and the International Reproductive and Sexual Health Law Programme, University of Toronto, Canada.

MichelleBennett26 May 2011Health, Prisoner Rights, Foreign Policy

South African Constitutional Court considers the right of appeal to or review by a higher court

Qhinga and Others v S (CCT 50/10) [2011] ZACC 18 (25 May 2011)

The Constitutional Court in South Africa recently considered an application for leave to appeal against a dismissal by the Supreme Court of Appeal of a petition filed by the applicants on the basis that relevant portions of the record of the proceeding in the High Court were not properly considered in the applicants’ petition. It was held that the applicants did not have the benefit of a right of appeal or review by a higher court as envisioned in s 35(3)(o) of the Constitution and thus the order made by the Supreme Court of Appeal was dismissed, the petition was set aside and the matter remitted to the Supreme Court of Appeal for reconsideration.

MichelleBennett25 May 2011Human Rights Law & Institutions, Foreign Policy

Supreme Court of the United States upholds 'structural injunction' requiring California to reduce its prison population

Brown v Plata, 563 US 2011 (23 May 2011)

On 23 May 2011 the Supreme Court of the United States upheld a lower court's decision finding that the conditions in California's overcrowded prisons violated prisoners' Eighth Amendment right not be subjected to cruel and unusual punishment. As a result of the overcrowding, adequate medical care could not be provided to prisoners. The Court reaffirmed US authority that denial of basic sustenance, including adequate medical care, violates the Eighth Amendment. What is perhaps more notable is the remedy it upheld, a cap on the prison population. The Court could have ordered the State to provide adequate medical care in its prisons, and accepted the State's plans for achieving that result. The Court instead found that only if the prison population decreased would it be possible for adequate medical care to be provided.

MichelleBennett23 May 2011Health, Prisoner Rights, Foreign Policy, Human Rights Law & Institutions

Indefinite detention of non-convicted persons’ DNA violates right to privacy

GC v The Commissioner of the Police of the Metropolis [2011] UKSC 21 (18 May 2011)

On 18 May 2011 the Supreme Court of the United Kingdom handed down a judgment which considered whether a provision in the Police and Criminal Evidence Act 1984 (PACE) which provided that DNA samples "may be retained after they have fulfilled the purposes for which they were taken but shall not be used by any person except for purposes related to the prevention or detection of crime" could be interpreted compatibly with art 8 of the European Convention of Human Rights and if not, whether police acts of retaining DNA data permanently, were unlawful.

MichelleBennett18 May 2011Privacy

Balancing the right to privacy and freedom of expression: What is the public interest in private affairs?

CTB v News Group Newspapers Limited [2011] EWHC 1232 (QB) (16 May 2011)

In this case, Eady J of the England and Wales High Court granted an injunction restraining disclosure of the identity of a footballer who had had an extramarital affair. In doing so, the judge first had to consider two competing rights in the European Convention of Human Rights: the right to respect for private and family life (art 8) and the right to freedom of expression (art 10). The judge undertook a balancing exercise to determine the relative importance of the two rights in the circumstances. Given the very personal nature of the information and the lack of any real public interest in disclosure, Eady J held that the right to privacy prevailed.

MichelleBennett16 May 2011Privacy, Democratic Freedoms

Formula One boss’s privacy breached, but limited rights to seek an injunction

Mosley v the United Kingdom (48009/08) (10 May 2011)

The European Court of Human Rights has ruled against former Formula One boss Max Mosley in the latest round of the well-publicised litigation he initiated in 2008 after the UK newspaper News of the World published an article and photographs alleging he had participated in sexual activities with five prostitutes in a London flat.

MichelleBennett10 May 2011Privacy, Democratic Freedoms

Does the State have a positive obligation to provide housing?

TG, R (on the application of) v London Borough of Lambeth [2011] EWCA Civ 526 (6 May 2011)

The UK Court of Appeal has considered whether a failure to provide housing and other supports to a vulnerable young person breaches their positive obligation to respect the right to a private life. The Court has signposted that ordinarily only failures that amount to ‘inhuman and degrading treatment’ will breach the UK’s positive obligation.

MichelleBennett6 May 2011Housing

NZ Bill of Rights requires courts to give legislation the meaning which ‘least restricts’ human rights

Valerie Morse v The Police [2010] NZSC 45 (6 May 2011)

The Supreme Court of New Zealand has found that the right to freedom of expression contained in s 14 of the Bill of Rights Act 1990 (NZ) requires an objective approach to the determination of charges of offensive or disorderly behaviour for the purposes of s 4(1)(a) of the Summary Offences Act 1981 (NZ). The provision is directed at behaviour which, when objectively assessed, disrupts order in, or within view of, a public space. Whether those present are offended as a matter of fact, is only one consideration to be taken into account.

MichelleBennett5 May 2011Human Rights Law & Institutions, Democratic Freedoms, Police

Court supports Charter protection of privacy in police interviews

DPP v KW [2011] VCC (2 May 2011)

The County Court recently handed down a decision in relation to the use by Victoria Police of ‘pretext conversations’ to gather evidence. The matter involved an application by KW to have evidence of a recording of a phone conversation between himself and the complainant excluded in his trial. This recording had been made at a police station using police equipment, although that equipment was operated by the complainant. No warrant had been obtained for the use of this equipment on the basis of Victoria Police’s view that the ‘participant surveillance’ exemption under the Surveillance Devices Act applied to this method of evidence gathering.

MichelleBennett1 May 2011Privacy, Police

Right to equality and anti-discrimination exemptions

Thales Australia Limited and ADI Munitions Pty Ltd (Anti-Discrimination) [2011] VCAT 729 (29 April 2011)

In this decision the Tribunal granted an exemption from certain provisions of the Equal Opportunity Act 1995 (Vic) (EO Act) to companies carrying out contracts with American firms in the defence industry. The Tribunal held that although granting an exemption may limit the rights to equality and privacy under ss 8 and 13 of the Charter, it was justified under s 7(2).

MichelleBennett28 April 2011Discrimination & Equality

Restricting access to legal abortion may amount to torture or other cruel, inhuman or degrading treatment under the ICCPR

LMR v Argentina, UN Doc CCPR/C/101/D/1608/2007 (28 April 2011)

In May 2007, VDA, an Argentine national, submitted a communication to the UN Human Rights Committee on behalf of her daughter, LMR, who has a permanent mental impairment. The communication claimed violations by Argentina of a number of articles under the International Covenant on Civil and Political Rights, including the right to freedom from torture or other cruel, inhuman or degrading treatment, and the right to privacy, arising out of a denial of access to legal abortion.

MichelleBennett28 April 2011Health, Foreign Policy, Human Rights Law & Institutions

Court will Determine whether a Declaration of Inconsistent Interpretation should be Made During Primary Hearing

Noone, Director of Consumer Affairs Victoria v Operation Smile (Australia) & Ors (No 2) [2011] VSC 153 (19 April 2011)

The case involved an application brought by the Director of Consumer Affairs Victoria against the Hope Clinic. The application sought to prevent the continuation of representations made by the Hope Clinic as to the benefits of its therapies for sufferers of, amongst other illnesses, cancer. In particular, the plaintiff alleged that the representations contravened section 9 of the Fair Trading Act.

MichelleBennett19 April 2011Human Rights Law & Institutions, Health

Police use of force to control demonstrators only permissible where there are no other means whatsoever to prevent breach of the peace

Moos & Anor, R (on the application of) v Police of the Metropolis [2011] EWHC 957 (Admin) (14 April 2011)

The England and Wales High Court recently concluded that action taken by the police to contain and then later disperse G20 protestors constituted an unlawful use of force, in the circumstances.

MichelleBennett14 April 2011Police, Democratic Freedoms

South African Constitutional Court Considers the Nature and Scope of the Right to Education

Governing Body of the Juma Musjid Primary School & Others v Essay N.O. and Others (CCT 29/10) [2011] ZACC 13 (11 April 2011)

In this significant decision, the Constitutional Court of South Africa considered the nature and scope of the rights to education and children’s rights when considering the rights of a private property owner to evict a school which was operating on its premises.

MichelleBennett11 April 2011Child Rights, Foreign Policy

What is the Scope of a Public Authority’s Positive Duty to Respect Privacy and Family Life?

Condliff, R (On the Application Of) v North Staffordshire Primary Care Trust [2011] EWHC B8 (Admin) (7 April 2011)

The High Court of England and Wales has held that a public health authority did not breach a patient’s right to a private and family life by excluding consideration of non-clinical social factors in deciding not to fund surgery for that patient.

MichelleBennett7 April 2011Health, Privacy

Council failed to Give “Due Regard” to Equality Duties in Defunding a Community Service

Rahman, R (on the application of) v Birmingham City Council [2011] EWHC 944 (Admin) (31 March 2011)

The High Court of England and Wales has held that the decision of a local council to terminate funding to a number of community advice centres was defective, because the council failed to give due regard to its equality duties.v

MichelleBennett31 March 2011Discrimination & Equality, Disability & Mental Health

Consideration of the Rights of the Child in Sentencing of a Parent

S v S (CCT 63/10) [2011] ZACC 7 (29 March 2011)

This case considered the degree to which a court is required to take into consideration the best interests of the child when determining the appropriate sentence to impose upon a primary caregiver. In particular, it considered the circumstances when a person will be considered to be the primary caregiver of a child, and the impact the person’s imprisonment will have on the child.

MichelleBennett29 March 2011Child Rights

Damages for Unlawful Detention

Faulkner, R (on the application of) v Secretary of State for Justice the Parole Board [2011] EWCA Civ 349 (29 March 2011)

The Court of Appeal of England and Wales decided Mr Daniel Faulkner was entitled to damages pursuant to section 8(1) of the Human Rights Act 1998 (UK) (HRA) in the sum of £10,000 as a result of being unlawfully detained in breach of Article 5(4) of the European Convention on Human Rights (‘the Convention’).

MichelleBennett29 March 2011Prisoner Rights, Human Rights Law & Institutions

State has a Positive Obligation to Protect Life and Ensure Effective and Independent Investigation of Police-Related Deaths

Giuliani and Gaggio v Italy [2011] ECHR 513 (24 March 2011)

The Grand Chamber of the European Court found no violation of the European Convention of Human Rights arose out of the killing of a demonstrator by Italian armed forces during the G8 summitNotably, however, there were divergent views regarding the State's obligations (both substantive and procedural) to protect life, including in relation to making specific provisions governing the use of firearms during police operations, issuing non-lethal weapons, and whether there is a higher level of responsibility where large-scale, high risk demonstrations are planned.

MichelleBennett24 March 2011Police, Foreign Policy, Human Rights Law & Institutions

European Court of Human Rights Rules that Crucifixes in State Schools do not Violate Religious Freedom

Lautsi & Ors v Italy [2011] ECHR Application No 30814/06 (18 March 2011)

In this case, the Grand Chamber of the European Court of Human Rights held that crucifixes in Italian State schools do not infringe the art 9 right to religious freedom. The case originated in a dispute between a school and a parent and escalated into an international issue with almost all European countries intervening in the final hearing.

MichelleBennett18 March 2011Democratic Freedoms

Limitations on the Rights to Freedom of Expression and Assembly

The Mayor of London (on behalf of the Greater London Authority) v Brian Haw, Barbara Tucker & Charity Sweet [2011] EWHC 585 (17 March 2011)

In The Mayor of London v Haw & Ors, the UK High Court considered whether the granting of particular orders and injunctions would be a disproportionate interference to various protestors' rights under arts 10 and 11 of the European Convention on Human Rights. Having closely considered the particular facts and circumstances of the various protestors, the Court concluded that the orders and injunctions were not disproportionate.

MichelleBennett17 March 2011Democratic Freedoms

State’s Obligation to Establish an Independent Anti-Corruption Body

Hugh Glenister v President of the Republic of South Africa & Ors (CCT 48/10) [2011] ZACC 6 (17 March 2011)

The Constitutional Court of South Africa declared legislation which disbanded and replaced an anti-corruption body constitutionally invalid. Through a joint judgment by Moseneke DCJ and Cameron J, the majority of the Court gave Parliament 18 months to amend the legislation.

MichelleBennett17 March 2011Foreign Policy, Human Rights Law & Institutions

Mandatory Minimum Sentencing Amounts to Cruel, Inhuman and Degrading Treatment

Daniel and Another v The Attorney General and Others (A 430/2009) [2011] NAHC 66 (10 March 2011)

The Namibian High Court recently considered whether mandatory minimum sentences for stock theft under the Stock Theft Act violated the prohibition of cruel, inhuman or degrading punishment under the Namibian Constitution. The constitutionality of the Act was challenged by two men who were sentenced for a combined 50 years for the theft of one cow and nine goats.

MichelleBennett10 March 2011Prisoner Rights, Foreign Policy, Human Rights Law & Institutions

Restriction on Right of Expression to Respect Rights and Reputation of Others

Hogan v Hinch [2011] HCA 4 (10 March 2011)

The High Court of Australia has rejected a constitutional challenge to the validity of s 42 of the Serious Sex Offenders Monitoring Act 2005 (Vic) (repealed). That provision allowed a court to prohibit the publication of information that might enable the identification of persons convicted of sex offences and who were subject to post-custodial supervision orders. The High Court found that contravention of a suppression order under the Act required knowledge that the contravention order existed. This was found to be consistent with the obligation in s 15(3) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter), requiring that restrictions on the right to freedom of expression be 'reasonably necessary' to respect the rights and reputation of other persons.

MichelleBennett10 March 2011Democratic Freedoms, Privacy

Age Discrimination Permissible for Widows’ Death Benefits

Withler v Canada (Attorney General) [2011] SCC 12 (4 March 2011)

In response to a class action brought on behalf of widows receiving spousal death benefits, the Supreme Court of Canada (SCC) has reviewed Canadian jurisprudence regarding the violation of the right to substantive equality under s 15(1) of the Canadian Charter of Rights and Freedoms and revisited the “comparator test” in the context of a challenge to a legislative employee benefits scheme. The decision could be said to represent the final nail in the coffin of the “mirror comparator” test and confirms that contextual, rather than formalistic, analysis is required when considering questions of substantive inequality.

MichelleBennett4 March 2011Discrimination & Equality

Right to Privacy Considered in Relation to Summons to Produce Documents

De Simone v Bevnol Constructions & Developments Pty Ltd & Ors [2011] VSCA 54 (3 March 2011)

A recent decision of the Court of Appeal has held that it is highly unlikely that the production of documents pursuant to a summons would ordinarily constitute an unlawful or arbitrary interference with a person’s right to privacy pursuant to s 13(a) of the Charter.

MichelleBennett3 March 2011Privacy

Care Arrangements and the Right to Liberty: When will Restrictions on a Person with Disability Amount to a Deprivation of the Right to Liberty?

P & Q v Surrey County Council [2011] EWCA Civ 190 (28 February 2011)

This case in the England and Wales Court of Appeal considered what constitutes a deprivation of liberty and the limitations on the right to liberty. It involves consideration of whether the care arrangements for two persons with mental disability resulted in the deprivation of their liberty.

MichelleBennett28 February 2011Democratic Freedoms, Disability & Mental Health

Religious Expression May be Limited to Protect the Rights of Child

Johns & Anor, R (on the application of) v Derby City Council & Anor [2011] EWHC 375 (Admin) (28 February 2011)

The England and Wales High Court recently found that the right to religious expression could be limited where attitudes towards sexuality might impact upon the rights of the child. The applicants, who were prospective foster carers, were found to have exhibited antipathy or disapproval of same-sex relationships or of people who identified as homosexual.

MichelleBennett28 February 2011Child Rights, Democratic Freedoms

Counter Terrorism and the Use of Undisclosed Evidence

BB, R (on the application of) v Special Immigration Appeals Commission & Anor [2011] EWHC 336 (Admin) (25 February 2011)

This case considered procedural requirements in the hearing of bail applications made by persons detained on undisclosed national security grounds. The England and Wales High Court concluded that, as a minimum requirement in such applications, government authorities must disclose to the detainees the evidence it used in deciding to deport them. This is so despite the fact that the government can legally detain people pending their deportation on the basis of undisclosed material.

MichelleBennett25 February 2011Counter-terrorism, Human Rights Law & Institutions

When Torture Abroad Will Prevent Prosecution of a Terrorist Defendant

Ahmed & Anor v The Queen [2011] EWCA Crim 184 (25 February 2011)

The applicant claimed that his prosecution for terrorism offences would amount to an abuse of process, on the grounds that British authorities were complicit in his torture committed abroad by Pakistani authorities. The UK Court of Appeal refused to extend the law of abuse of process to situations where the defendant’s torture does not impact on the trial. The prosecution will only be an abuse of process if the product of torture (for example, a statement) is being used in court to make a case against the defendant.

MichelleBennett25 February 2011Prisoner Rights, Counter-terrorism, Human Rights Law & Institutions, Foreign Policy

Courts Should Consider the Proportionality of Evictions from Public Housing – The Sequel to Pinnock

Hounslow London Borough Council v Powell; Leeds City Council v Hall; Birmingham City Council v Frisby [2011] UKSC 8 (23 February 2011)

In Manchester City Council v Pinnock [2010] UKSC 45 (Pinnock) the UK Supreme Court held that a person at risk of eviction from their home by a local authority should be able to question the proportionality of eviction (although there is no right under domestic law to remain in the property); and an independent tribunal should be able to assess proportionality with reference to article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Convention).

MichelleBennett23 February 2011Housing

Aboriginal Children Returned to Care of Maternal Grandmother as Court Finds Charter Applies to Child Welfare Proceedings

Secretary to the Department of Human Services v Sanding [2011] VSC 42 (22 February 2011)

The Supreme Court of Victoria has ruled that the Children’s Court of Victoria (‘Court’) had the discretion to make orders returning four Aboriginal children to the care of their maternal grandmother at a submissions contest hearing in which no formal evidence was given. The Supreme Court further held that a child welfare proceeding is a ‘civil proceeding’ to which the Charter of Human Rights applies.

MichelleBennett22 February 2011Child Rights, Aboriginal & Torres Strait Islander Peoples' Rights

Right to ‘Polite’ Protest

Abdul & Ors v Director of Public Prosecutions [2011] EWHC 247 (Admin) (16 February 2011)

This case held that the right to freedom of expression, by way of protest, may be limited in order to maintain public order.

MichelleBennett16 February 2011Democratic Freedoms

Sufficient Flexibility to Preserve Right to Fair Trail

R v Ahmad, 2011 SCC 6 (10 February 2011)

The Supreme Court of Canada has held that a two court scheme regulating the disclosure of information relating to international relations, national defence or national security in criminal proceedings does not violate the right to a fair trial. Properly interpreted, the statutory scheme was sufficiently flexible to preserve the full authority of the judge presiding over the criminal trial to do justice between the parties and preserve the rights of the defendant to a fair trial.

MichelleBennett10 February 2011Human Rights Law & Institutions

Best Interests of Child Paramount in Decisions to Deport Parents

ZH (Tanzania) FC (Appellant) v Secretary of State for the Home Department [2011] UKSC 4 (1 February 2011)

The Supreme Court of the United Kingdom has held that the 'best interests of the child' should be the first consideration where children are affected by the decision to remove or deport one or both of their parents. While the best interests of the child can be cumulatively outweighed by other factors in determining proportionality, no consideration is inherently more significant than the best interests of the child.

MichelleBennett1 February 2011Refugee & Asylum Seeker Rights, Child Rights

Right to Free Expression and Open Justice may Permit Broadcasting of Evidence

Canadian Broadcasting Corp v Canada, 2011 SCC 3 (28 January 2011)

The Supreme Court of Canada (the Court) held that the broadcasting of a video recording of a pre-trial statement tendered in evidence at trial may be protected by the right to freedom of expression in section 2(b) of the Canadian Charter of Rights and Freedoms (the Charter), but the protection does not apply in every circumstance. The use of an exhibit tendered in evidence at trial is, subject to any applicable statutory provision, to be determined by the trial judge in accordance with an analysis of the competing factors at stake, including trial fairness and the administration of justice.

MichelleBennett29 January 2011Democratic Freedoms, Privacy

VCAT Considers Disability Discrimination Under the Charter

Caserta v Director of Public Transport [2011] VCAT 98 (27 January 2011)

The applicant sought a review of the decision of the Director of Transport (‘Director’) refusing to grant him an application for driver accreditation for a commercial passenger vehicle. The Victorian Civil and Administrative Tribunal (‘VCAT’) affirmed the Director’s decision on the basis it was not satisfied that the applicant had met the application requirements under the relevant Act.

MichelleBennett27 January 2011Discrimination & Equality, Disability & Mental Health, Human Rights Law & Institutions

Does Criminalisation of Support for an ‘Illegal’ Organisation Violate the Right to Free Expression?

Aydin v Germany [2011] ECHR 141 (27 January 2011)

The applicant, a Turkish national, brought a claim in the European Court of Human Rights against the Federal Republic of Germany under Article 34 of the European Convention on Human Rights (the ‘ECHR’). The applicant alleged that her criminal conviction for breaching a ban on the activities of the Workers’ Party of Kurdistan (‘PKK’) violated her right to freedom of expression.

MichelleBennett27 January 2011Democratic Freedoms, Human Rights Law & Institutions, Foreign Policy

Lack of Adequate Healthcare in Prison is Inhumane and Degrading

Kupczak v Poland [2011] ECHR 127 (25 January 2011)

Mr Edward Kupczak (the ‘applicant’) was held in detention in Poland awaiting trial for offences related to organised crime. The Applicant was severely disabled in a car accident six years prior to his detention, and suffered severe pain daily. He had been living with a morphine pump installed in his body to help manage his pain. His pump failed shortly after he was detained. The Applicant remained in detention despite making appeals for two and a half years. The Applicant was released from pre-trial detention in 2008 and was then able to have the morphine pump replaced.

The European Court of Human Rights found that through his detention, his lack of access to appropriate pain relief, and the Polish courts’ failure to acknowledge the break-down of his morphine pump, the Applicant had been subjected to inhuman and degrading treatment in violation of Article 3 of the European Convention on Human Rights ( ‘ECHR’).

MichelleBennett25 January 2011Prisoner Rights, Health, Human Rights Law & Institutions, Foreign Policy

Shamrocks and Poppies Allowed, but Easter Lilies Likely to Aggravate

Donaldson v the United Kingdom - 56975/09 [2011] ECHR 210 (25 January 2011)

A majority of the European Court of Human Rights declared that an application concerning a ban on all prisoners in Northern Ireland wearing emblems with a political or sectarian connotation outside of their prison cells was inadmissible.

MichelleBennett25 January 2011Discrimination & Equality, Democratic Freedoms

Legislation which Imposes Burden on Public Transport Users Indirectly Discriminates on Grounds of Race and Poverty

Mvumvu v Minister for Transport [2011] ZACC 1 (17 January 2011)

The South African Constitutional Court struck down road accident compensation legislation because it is indirectly discriminatory on the ground of race. However, due to evidence of serious budgetary implications, the Court suspended the order of invalidity for 18 months to enable Parliament to cure the defect.

MichelleBennett17 January 2011Discrimination & Equality, Foreign Policy

Mental Health and the Right to Liberty – Unlawful Detention in Mental Health Facility and the Right to Compensation

TTM v London Borough of Hackney & Ors [2011] EWCA Civ 4 (14 January 2011)

The UK Court of Appeal recently considered the legality of detention of a mental health patient where the patient’s “nearest relative”, his brother, objected to an application for detention and treatment being made under the Mental Health Act 1983 (UK) (‘MHA’).

MichelleBennett14 January 2011Disability & Mental Health

Undue Delay in Parole Hearing Amounts to Arbitrary Detention

Morales, R (on the application of) v The Parole Board & Ors [2011] EWHC 28 (Admin) (14 January 2011)

In this case the High Court of England and Wales decided that the actions of the Parole Board, and the Secretary of State for Justice (‘Secretary of State’) caused an ‘undue delay’ in allowing Mr Jan Morales to test the legality of his detention before a court. Accordingly, the High Court held that there had been an infringement of Mr Morales’ rights under Article 5 (4) of the European Convention of Human Rights (‘ECHR’).

MichelleBennett14 January 2011Human Rights Law & Institutions, Prisoner Rights

School Exclusion and the Right to Education

MichelleBennett11 January 2011Foreign Policy, Human Rights Law & Institutions

Detention of Children in Immigration Facilities a Breach of Human Rights

Suppiah & Ors, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 2 (Admin) (11 January 2011)

The High Court of England and Wales decided that two families who had sought asylum in the United Kingdom were detained unlawfully by the Secretary of State for the Home Department (Defendant) because the Defendant failed to have regard to its duty to safeguard and promote the welfare of children.

MichelleBennett11 January 2011Child Rights, Prisoner Rights, Refugee & Asylum Seeker Rights

‘Freedom of Religion is Not Absolute’: Same-Sex Marriage and Religious Beliefs and Convictions

In the Matter of Marriage Commissioners Appointed Under The Marriage Act, 1995, 2011 SKCA 3 (10 January 2011)

In a landmark ruling, the Court of Appeal for Saskatchewan, In the Matter of Marriage Commissioners Appointed Under The Marriage Act, 1995 (Marriage Commissioner Case), held that that a marriage commissioner’s refusal to solemnize same-sex marriage on the basis of religious beliefs is unlawful. The Court held that two proposed amendments to the Marriage Act 1995 would offend the Canadian Charter of Rights and Freedoms and, if enacted, ‘would violate the equality rights of gay and lesbian individuals’.

MichelleBennett10 January 2011LGBTI Rights, Discrimination & Equality, Democratic Freedoms

Right to Life: When is the State Obliged to Fund Legal Representation at Coronial Inquests?

Legal Services Commission v Humberstone, R (On the application of) [2010] EWCA Civ 1479 (21 December 2010)

The England and Wales Court of Appeal has held that the state’s obligation to conduct an effective and proactive investigation into a death arises where the circumstances gave rise to the possibility of a breach of the state’s positive duty to protect life. This duty extends to involving the next of kin in the proceedings to the extent necessary to safeguard their legitimate interests.

MichelleBennett21 December 2010Human Rights Law & Institutions

Evictions and Human Rights in VCAT

Director of Housing v KJ (Residential Tenancies) [2010] VCAT 2026 (16 December 2010)

A recent VCAT decision found that the Director of Housing (‘Director’) acted in accordance with its duties as a public authority pursuant to s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) in serving the respondent with a Notice to Vacate (‘NTV’) and in making an application for possession. Member Dea assessed the scope of the rights to privacy and to the protection of families and children and she concluded that neither of these rights had been engaged. She held that even if such rights had been engaged, the Director had given proper consideration to, and had acted compatibly with, them in seeking to evict the respondent. The application for possession was upheld.

MichelleBennett16 December 2010Housing

High Court Recognises that Constitution ‘Embeds’ a Right to Vote and a ‘Fully Inclusive Franchise’ in Landmark Constitutional Case

Rowe v Electoral Commissioner [2010] HCA 46 (15 December 2010)

The case, which was heard and determined just prior to the 2010 Federal Election was a constitutional challenge to the validity of changes to the Commonwealth Electoral Act 1918 made by the Electoral and Referendum Amendment (Electoral Integrity and Other Measures) Act 2006. The Amendment Act resulted in the electoral roll being closed on the day on which the electoral writ is issued for new or re-enrolling voters, and three days after the writ is issued for voters updating enrolment details. Previously, the electoral roll remained open for a period of seven days after the issue of the writ. The Amendment Act was said to reduce the likelihood of fraudulent voter enrolment and promote electoral integrity.

MichelleBennett15 December 2010Democratic Freedoms, Human Rights Law & Institutions