Clarke v Nationwide News Pty Ltd trading as The Sunday Times [2012] FCA 307 (27 March 2012)
Justice Barker in the Federal Court held that Nationwide News, the publisher of The Sunday Times newspaper in Perth, was liable under section 18C of the Racial Discrimination Act 1975 (Cth) (RDA) for comments posted by readers underneath articles in the online version of the paper, which amounted to racial vilification.
Read MoreKing & Ors, R (on the application of) v Secretary of State for Justice [2012] EWCA Civ 376 (27 March 2012)
This case concerned three separate appeals challenging the legality of cellular confinement and segregation procedures, imposed on prisoners who were serving custodial sentences.
Read MoreCanada (Attorney General) v Bedford, 2012 ONCA 186 (26 March 2012)
The Ontario Court of Appeal considered the legality of certain restrictions on prostitution – a lawful activity in Canada. It held that provisions which prevent prostitutes from taking measures to secure their safety, and substantially increase their risk of harm, contravene the right to liberty and security of the person under section 7 of the Canadian Charter of Rights and Freedoms.
Read MoreCanada (Attorney General) v Bedford, 2012 ONCA 186 (26 March 2012)
The Ontario Court of Appeal considered the legality of certain restrictions on prostitution – a lawful activity in Canada. It held that provisions which prevent prostitutes from taking measures to secure their safety, and substantially increase their risk of harm, contravene the right to liberty and security of the person under section 7 of the Canadian Charter of Rights and Freedoms.
Read MoreMinister of Correctional Services v Lee (316/11) [2012] ZASCA 23 (23 March 2012)
In this case the Supreme Court of Appeal in South Africa ruled that while prison authorities failed to take reasonable measures to prevent the contraction of tuberculosis in custody, causation was not made out and therefore the State was not liable.
Read MoreR v Dennis Michael Nona [2012] ACTSC 41 (23 March 2012)
In R v Nona the ACT Supreme Court considered the right to a fair trial without unreasonable delay in the context of whether or not to stay criminal proceedings. The key issues related to a breach of a statutory human right and the appropriate remedy for that breach. While the court found that the right to a trial without unreasonable delay had been breached, it considered that a declaration would be an appropriate remedy rather than a permanent stay. This decision is important because it discusses the relevance of section 30 (interpretation of laws and human rights) of the Human Rights Act 2004 (ACT) (HRA) when interpreting ACT legislation, and the common law and statutory principles of undue delay.
Read MoreDoré v Barreau du Québec, 2012 SCC 12 (22 March 2012)
The Supreme Court of Canada has delivered a key decision clarifying the standard of review to be applied in considering whether administrative decision-makers have exercised their discretion compatibly with the Canadian Charter. The Court held that, rather than using the test in R v Oakes [1986] 1 SCR 103, which is used to determine whether legislation is Charter compatible, a more flexible reasonableness test should be used, drawing on administrative law concepts and providing greater deference to administrative decision-makers.
Read MoreSlaveski v The Queen (on the application of the Prothonotary of the Supreme Court of Victoria) [2012] VSCA 48 (20 March 2012)
The applicant, Mr Slaveski, appealed against conviction and sentence for contempt of court.The Victorian Equal Opportunity & Human Rights Commission intervened in the proceeding regarding the application of the Charter of Human Rights and Responsibilities Act 2006 (Vic) to the Supreme Court. The Commission’s submissions concerned, among other things, whether the trial judge erred in not granting an adjournment to Mr Slaveski in circumstances where his lawyers had withdrawn and he alleged that evidence relevant to his trial had been tampered with.
Read MoreWright v Argentina [2012] EWHC 669 (Admin) (20 March 2012)
The appellant (Wright) appealed her extradition to Argentina under the Extradition Act 2003 (UK) to the High Court of Justice. The appellant contended that her extradition to face drug charges would contravene her rights under articles 3 (inhumane and degrading treatment), 5 (trial within reasonable time) and 8 (respect for private life) of the European Convention on Human Rights.
Justice Silber held that the extradition would contravene the appellant’s rights under article 3 of the Convention, however he confined his decision to the facts. The facts were unique in that: (a) no undertakings were given by the Government of Argentina with respect to the appellant’s treatment in Argentina; and (b) the respondent did not cross-examine the respondent’s expert evidence on article 3.
Read MoreLord Carlile and Others and Maryam Rajavi v Secretary of State for the Home Department [2012] EWHC 617 (Admin) (16 March 2012) Summary
In this decision, the High Court of England and Wales considered whether concerns relating to national security justified infringement of the right to freedom of expression. The British Secretary of State for the Home Department refused permission for Iranian dissident Maryam Rajavi to enter the UK to address British parliamentarians at Westminster, allegedly infringing the claimants’ common law and European Convention of Human Rights right to freedom of expression. Although it expressed sympathy with the claimants’ position, the High Court held that the Secretary’s decision to exclude Rajavi was proportionate in light of the Secretary’s concerns for national security and public order.
Read MoreAustin & Ors v United Kingdom [2012] ECHR 459 (15 March 2012)
In 2001, in the context of a demonstration in central London, up to 2000 people were contained within a police cordon (a measure known as "kettling") at Oxford Circus in London without access to food, water or toilets.
The Grand Chamber of the European Court of Human Rights held that this did not amount to a deprivation of liberty under Article 5(1) of the European Convention of Human Rights.
Read MoreZH v The Commissioner of Police for the Metropolis [2012] EWHC 604 (QB) (14 March 2012)
The England and Wales High Court has held that police who applied excessive force to a 16 year old autistic boy infringed several laws, including the European Convention on Human Rights. The Court found that the treatment of the boy by the police amounted to assault and battery, false imprisonment, unlawful disability discrimination, inhuman or degrading treatment, deprivation of liberty, and interference with private life.
Read MoreReynolds v United Kingdom [2012] ECHR 437 (13 March 2012)
This decision of the European Court of Human Rights considered the availability of compensation for loss of life. The application was brought under Article 34 of the European Convention of Human Rights by the mother of a person who died while at a mental health facility. The Applicant applied for damages in relation to the death of her son and argued that she did not have any civil proceedings available to her under domestic law for this action.
Read MoreSlaveski v Smith & Anor [2012] VSCA 25 (29 February 2012)
This decision of the Victorian Court of Appeal clarifies the content of aspects of the right to a fair hearing (section 24) and rights in criminal proceedings (section 25) in the Charter of Human Rights and Responsibilities Act 2006 (Vic). The decision also indicates the approach the Court is taking to the interpretation provision (section 32) after the High Court decision in Momcilovic.
Read MoreHirsi Jamaa and Others v Italy [2012] ECHR Application no. 27765/09 (23 February 2012)
In a landmark decision the Grand Chamber of the European Court of Human Rights held, unanimously, that Italy violated the European Convention of Human Rights by forcibly returning a group of asylum seekers by sea to Libya.
Read MoreR v Fleischman, 2012 ONCJ 120 (24 February 2012)
This was a Canadian case in the provincial division of the Ontario court system. The applicant was charged with impaired driving and driving with greater than 80mg of alcohol in 100ml of blood (“over 80”). He brought an application pursuant to sections 7, 11(d) and 24(1) of the Canadian Charter of Rights and Freedoms for the proceedings against him to be conditionally stayed until state-funded counsel was provided for his trial. The judge found that counsel was essential to the applicant’s right to a fair trial and that the applicant was unable to afford to obtain counsel, and on that basis stayed the proceedings until state funding could be provided.
Read MoreThe Mayor Commonalty and Citizens of London v Samede (St Paul's Churchyard Camp Representative) & Ors [2012] EWCA Civ 160 (22 February 2012)
In the High Court of England and Wales, Lindblom J made orders in favour of the City of London (the City) against the defendants, part of the Occupy protest movement, for possession ofa highway and other open land in the churchyard of St Paul's Cathedral, London, where the defendants had set up a protest camp.
Read MoreSonko v Spain, UN Doc CAT/C/47/D/368/2008 (20 February 2012)
Summary
The UN Committee against Torture has found that Spain violated its obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in its treatment of Senegalese asylum seeker Mr Sonko, who drowned after being forced out of a Spanish Civil Guard vessel. This decision exemplifies that placing a person in a situation that causes his or her death will constitute cruel, inhuman or degrading treatment in contravention of article 16 of the Convention.
Read MoreS.L. v. Commission scolaire des Chênes 2012 SCC 7 (17 February 2012)
The Supreme Court of Canada has upheld the Quebec Superior Court's decision that a state-organised, multi-faith, ethics and religious class did not infringe the right to freedom of conscience and religion. The Court held that determining whether a person's right to religion was infringed required a subjective understanding of the belief alleged to be infringed and objective determination of whether an infringement occurred.
Read MoreThe Queen on the Application of Hurley and Moore v Secretary of Sate for Business Innovation and Skills [2012] EWHC 201 (17 February 2012)
The England and Wales High Court has ruled that a decision to raise university tuition fees did not breach the right to education under the European Convention on Human Rights (Article 2 of Protocol 1), even when read in conjunction with the right to non-discrimination (Article 14).
Read MoreEremiasova and Pechova v The Czech Republic [2012] ECHR Application No 23944/04 (16 February 2012)
In this case the European Court held that the Czech Republic had violated Article 2 (right to life) of the European Convention on Human Rights. The Court clarified the positive duty of States to take active measures to protect those in their custody from harm, including self-harm, and reiterated the importance of providing an adequate, impartial and independent investigation into deaths in custody. It also commented upon the admissibility requirement that all domestic remedies be exhausted, noting that applicants will not be required to pursue domestic remedies which can only result in compensation when the efficiency of an investigation into a death possibly caused by the State is brought into question. The Court held that the State should pay compensation to the applicants.
Read MoreHardy and Maile v United Kingdom [2012] ECHR 261 (14 February 2012)
The applicants challenged planning permits granted for the operation of liquefied natural gas (“LNG”) terminals in the UK, alleging that the marine risk of a possible collision in the harbour leading to the escape of LNG had not been properly assessed. The European Court of Human Rights found that there was a “coherent and comprehensive legislative and regulatory framework governing the activities in question” and that “extensive reports and studies” had been carried out in relation to the terminals. This was sufficient to fulfil the UK’s obligation to secure the applicants’ right to respect for their private lives and homes under Article 8 of the European Convention of Human Rights.
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Bull & Bull v Hall & Preddy [2012] EWCA Civ 83 (10 February 2012) Summary
The England and Wales Court of Appeal held that a hotel policy of providing double rooms only to married persons constituted unlawful direct discrimination on the grounds of sexual orientation against persons in a civil partnership. The hoteliers submitted that the policy, a manifestation of their genuinely held religious beliefs, was protected by articles 8 and 9 of the European Convention on Human Rights. The Court held that, to the extent that anti-discrimination regulations limit such manifestation, the limitations were necessary in a democratic society for the protection of the rights and freedoms of same-sex couples.
Read MoreVejdeland & Ors v Sweden [2012] ECHR 242 (9 February 2012)
The European Court of Human Rights has rejected an application brought by four Swedish nationals who were convicted under Swedish domestic law for making offensive and prejudicial comments against homosexuals. The applicants sought an order from the Court that the convictions violated their freedom of expression as protected under Article 10 of the European Convention of Human Rights. The decision constitutes the first time the Court has applied principles relating to hate speech to comments made against homosexuals.
Read MoreRabone & Anor v Pennine Care NHS Foundation Trust [2012] UKSC 2 (8 February 2012)
The United Kingdom Supreme Court has extended the obligations that the right to life places on the state by holding that a hospital breached its duty to protect a voluntary psychiatric patient from the risk of suicide.
Read MoreAxel Springer AG v Germany [2012] ECHR 227 (7 February 2012)
The European Court of Human Rights has allowed an appeal by a newspaper publisher against an injunction preventing it from reporting details of criminal proceedings brought against a television actor. The Grand Chamber of the Court found that the injunction constituted an unjustifiable interference with the right to freedom of expression under article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
Read MoreVon Hannover v Germany (No. 2) [2012] ECHR 228 (7 February 2012)
This case is an application to the European Court of Human Rights by Princess Caroline of Monaco and her husband, Prince Ernst August von Hannover, following the refusal by German courts to prohibit further publication of photos taken of them while on holiday. The Court’s task was to determine whether the manner in which the relevant domestic laws were applied to the applicants infringed their right to respect for their private and family life (guaranteed under article 8 of the Convention). This required an examination of the balance struck between the right to privacy and the right to freedom of expression (guaranteed under article 10).
Read MoreCity of London v Samede & Ors [2012] EWHC 34 (QB) (18 January 2012)
The England and Wales High Court upheld claims brought by the City of London Corporation for possession of highway and other open land in the churchyard of St Paul's Cathedral, London, where the defendants, part of the Occupy protest movement, had set up a protest camp. Lindblom J held that this was a "lawful and justified" interference with the defendants' rights of freedom of expression and association under articles 10 and 11 of the European Convention on Human Rights.
Read MoreVinter & Ors v United Kingdom [2012] ECHR 61 (17 January 2012)
The applicants, Douglas Vinter, Jeremy Bamber and Peter Moore, are currently serving life sentences for murder in the United Kingdom. Each has received a whole life order meaning that they will never be released from prison, other than at the discretion of the Secretary of State on compassionate grounds (such as terminal illness or serious disability). The three appealed their sentences to the European Court of Human Rights alleging violations of articles 3 (prohibition on torture, inhuman and degrading treatment and punishment), 5(4) (the right to speedy court proceedings to determine the lawfulness of detention), 6 (the right to a fair trial) and 7 (the prohibition of retrospective criminalisation) of the Convention for the Protection of Human rights and Fundamental Freedoms. The Court rejected each of these claims.
Read MoreAbu Qatada v United Kingdom [2012] ECHR 56 (17 January 2012)
The European Court of Human Rights was asked to consider whether the Applicant's rights under articles 3 (torture), 5 (liberty and security), 6 (fair trial) and 13 (effective remedy) of the European Convention on Human Rights would be breached if he was deported to Jordan where he faced criminal proceedings. The Court held that there would be a violation of article 6 as there was a real risk that evidence obtained by torture would be used in a retrial. This is the first instance in which the Court has found that an expulsion would constitute a violation of article 6.
Read MoreStanev v Bulgaria [2012] ECHR 46 (17 January 2012)
The Grand Chamber of the European Court of Human Rights held that a man who had been declared partially incapacitated and placed in a dilapidated psychiatric home had suffered a number of violations of his human rights. The Grand Chamber emphasised that detention other than in accordance with domestic law is a violation of the right to liberty. Moreover, an aggregate of factors such as inadequate living conditions and lengthy detention can amount to inhuman or degrading treatment. Finally, incapacitated persons must have access to the courts for judicial review of both their living conditions and their legal status.
Read MoreThe Children’s Rights Alliance for England v Secretary of State for Justice [2012] EWHC 8 (Admin) (11 January 2012)
This decision of the England and Wales High Court held that whilst certain measures had been unlawfully perpetrated against young people in secure training centres, the Court had no jurisdiction to grant an order that the victims be identified and informed of their legal rights.
Read MoreBritish Broadcasting Corporation (BBC) & Anor, R (on the application of) v Ahmad [2012] EWHC 13 (Admin) (11 January 2012)
In early 2012, the British Broadcasting Corporation applied for permission to conduct a face-to-face interview with Babar Ahmad who is currently detained in prison without charge and whose extradition has been sought by the USA. The BBC also wished to broadcast parts of the interview in a programme looking at the treatment of detainees like Mr Ahmad and extradition arrangements with the USA. The Secretary of State refused this permission. The High Court of England subsequently held this decision was incompatible with the right to freedom of expression and as such was unlawful.
Read MoreC and Others v Department of Health and Social Development, Gauteng and Others [2012] ZACC 1 (11 January 2012)
South Africa’s Constitutional Court has overturned legislation that enabled state officials to remove children from family care without requiring prompt and automatic judicial review. The majority of the Constitutional Court held that prompt judicial review of decisions to remove children from their families is in the ‘best interests’ of children and is necessary to safeguard the right to access to justice. Therefore, the Children’s Act was held to be inconsistent with section 28 (rights of the child) and section 34 (access to justice) of South Africa’s Bill of Rights.
Read MoreThe Secretary of State for Justice v RB & Anor [2011] EWCA Civ 1608 (20 December 2011)
In this case the UK Court of Appeal considered whether the power to detain a convicted mental health patient continued to apply when the patient was "conditionally discharged" from detainment in hospital to another institution. The Court concluded that it constituted an unlawful continued deprivation of his liberty because of the wording of the Mental Health Act 1983. The decision is important because it upholds the fundamental nature of right to liberty, emphasises the high threshold for its deprivation, and maintains compatibility between the MHA and the European Convention on Human Rights.
Read MoreGrant v Ministry of Justice [2011] EWHC 3379 (QB) (19 December 2011)
In Grant v Ministry of Justice, the High Court of England and Wales dismissed claims by two prisoners that the prison sanitation regime at HMP Albany breached their right under article 3 of the European Convention on Human Rights not to be subjected to degrading treatment or punishment. Hickinbottom J’s judgement provides useful guidance on what must be established for treatment to be considered degrading in the context of imprisonment.
Read MoreNaik, R (on the application of) v Secretary of State for the Home Department [2001] EWCA Civ 1546 (19 December 2011)
The England and Wales Court of Appeal has upheld a decision to refuse entry to the UK to an Indian national, finding that exclusion on the basis of his public statements constituted a justifiable interference with the right to freedom of expression under the European Convention on Human Rights.
Read MoreTaha v Broadmeadows Magistrates’ Court & Ors; Brookes v Magistrates’ Court of Victoria & Anor [2011] VSC 642 (16 December 2011)
The Supreme Court has held that infringements officers and courts may have a duty to inquire whether a person has ‘special circumstances’ – such as intellectual disability or mental illness – before imprisoning that person in lieu of payment of unpaid fines. This duty arises under section 160 of the Infringements Act when read in conjunction with the right to liberty, the right to a fair hearing and the right to equality before the law under the Victorian Charter.
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Al-Khawaja and Tahery v United Kingdom – 26766/05 [2011] ECHR 2127 (15 December 2011)
The Grand Chamber of the European Court of Human Rights recently considered the admissibility of statements made by an absent witness and the application of the 'sole or decisive test' in the context of the right to a fair trial. It held by majority that convictions based solely or decisively on such statements will not automatically constitute a breach of the right to a fair trial contained in article 6 of the European Convention on Human Rights.
Read MoreRahmatullah v Secretary of State for Foreign and Commonwealth Affairs & Anor [2011] EWCA Civ 1540 (14 December 2011)
On 14 December 2011, the England and Wales Court of Appeal overturned a decision of the High Court and issued a writ of habeas corpus requiring the UK Secretary of State for Foreign and Commonwealth Affairs and the Secretary of State for Defence to make a request to the US Government for the release of Mr Yunus Rahmatullah from the Bagram Air Base in Afghanistan. The Court at first instance described Bagram as “a place said to be notorious for human rights abuses”. Mr Rahmatullah, a Pakistani national who had been captured by the British, had been held at Bagram since June 2004.
Read MoreThe European Court of Human Rights has clarified the scope of a State party’s obligation to investigate a death in circumstances involving a potential breach of the right to life.
In Pearson v United Kingdom [2011] ECHR 2319, the Court clarified that, where government employees or agents are implicated in a death, the State is bound to adequately investigate the death to establish the relevant facts and to hold persons accountable, as appropriate. Those obligations may be met by, or shared between, several different processes and authorities. There is no requirement for a single body, such as a coroner’s court, to deal with all aspects of an investigation.
Read MoreDobson & Ors v Thames Water Utilities Ltd (No 2) [2011] EWHC 3253 (TCC) (08 December 2011)
In this case the Court delivered a judgment regarding the relevance of the Human Rights Act 1998 (UK) (HRA) and European Convention on Human Rights to a claim for nuisance in an environmental law proceeding. The decision is important for ensuring consistency between human rights and common law jurisprudence.
Read MoreOccupiers of Portion R25 of the Farm Mooiplaats 355 JR v Golden Thread Limited and Others (CCT 25/11) [2011] ZACC 35 (7 December 2011)
In this case, if evicted, approximately 170 families would be made homeless. The South African Constitutional Court unanimously held that, before making eviction orders, the High Court should have considered whether the local authority – the City of Tshwane Metropolitan Municipality – was able to provide alternative land or accommodation to the occupiers.
Read MoreSchwabe and M.G. v Germany - 8080/08 [2011] ECHR 1986 (1 December 2011)
The European Court of Human Rights has ruled that the detention of two German citizens, who planned to be involved in protests against the 2007 G8 summit, constituted an unlawful breach of the rights to liberty and security of person and freedom of peaceful assembly under the European Convention on Human Rights.
Read MoreCity of Johannesburg Metropolitan Municipality v Blue Moonlight Properties 39 (Pty) Ltd and Another (Lawyers for Human Rights as Amicus Curiae) Case No: CCT 37/11 [2011] ZACC 33 (1 December 2011)
The South African Constitutional Court has held that the City of Johannesburg had a constitutional obligation to provide emergency accommodation to vulnerable persons evicted by a private landlord.
Read MoreWK v The Queen [2011] VSCA 345 (30 November 2011)
In a recent appeal from an interlocutory decision of the County Court, the Victorian Court of Appeal held, by a majority of 2:1, that s 32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) is applicable to the interpretation of the Surveillance Devices Act 1999 (Vic). Only His Honour Nettle JA considered the implications of the recent High Court decision in Momcilovic v The Queen [2011] HCA 34.
Read MoreParks Victoria (Anti-Discrimination Exemption) [2011] VCAT 2238 (28 November 2011)Cummeragunja Housing & Development Aboriginal Corporation (Anti-Discrimination Exemption) [2011] VCAT 2237 (28 November 2011) The Ian Potter Museum of Art (Anti-Discrimination Exemption) [2011] VCAT 2236 (28 November 2011)
On 28 November 2011, the Victorian Civil and Administrative Tribunal delivered judgments in three matters, each dealing with applications for exemption from the Equal Opportunity Act 2010 (Vic) (EOA) to enable the limiting of employment in specified roles to Indigenous persons.
Read MoreReference re: Section 293 of the Criminal Code of Canada 2011 BCSC 1588 (23 November 2011)
This case was referred to the Chief Justice of the Supreme Court of British Columbia, Canada to determine the constitutionality of section 293 of the Criminal Code of Canada (establishing polygamy as a criminal offence), in light of the Canadian Charter of Rights and Freedoms.
Read MoreJude v Her Majesty’s Advocate (Scotland) [2011] UKSC 55 (23 November 2011)
In this case, the Supreme Court of the United Kingdom held that admitting evidence of unsolicited statements made to the police by an accused who had waived his right to access legal advice did not deny him a fair trial contrary to article 6(1) of the European Convention on Human Rights.
Read MoreMcGowan (Procurator Fiscal, Edinburgh) v B (Scotland) [2011] UKSC 154 (23 November 2011)
In this case, the Supreme Court of the United Kingdom held that it is not necessary for an accused in custody to receive advice from a lawyer in order to effectively waive their right of access to a lawyer under article 6 of the European Convention of Human Rights. The Court did observe, however, that where people are vulnerable or the questioning is long and complex, they may need to be given additional protections to ensure they understand the rights in question.
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