Human Rights Case Summaries

Indefinite detention of dangerous prisoners is arbitrary and unlawful

James, Wells and Lee v United Kingdom [2012] ECHR 1706 (18 September 2012)

The European Court of Human Rights' decision in James, Wells and Lee v United Kingdom demonstrates the tension between indefinite detention in breach of article 5(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms and the lawful indeterminate detention of "dangerous prisoners" for public protection. Ultimately, the Court found that, in situations where prisoners serving indefinite sentences have no reasonable access to appropriate rehabilitative courses that would enable them to demonstrate they no longer constitute a danger to the public, their detention is arbitrary and therefore unlawful within the meaning of article 5(1) of the Convention.

MichelleBennett19 September 2012Prisoner Rights

Harmonisation of divergent international law obligations

Nada v Switzerland [2012] ECHR 1691 (12 September 2012)

This is a decision of the Grand Chamber of the European Court of Human Rights regarding how states should approach divergent international law obligations.

MichelleBennett12 September 2012Human Rights Law & Institutions

Duty to investigate torture and inhumane treatment

R(NM) v Secretary of State for Justice [2012] EWCA Civ 1182 (12 September 2012)

The English Court of Appeal in R(NM) v Secretary of State for Justice has recently ruled that a State prison was not in breach of its investigative obligation under article 3 of the European Convention on Human Rights (the right to freedom from torture and cruel, inhumane and degrading treatment) as it conducted an investigation in proportion to the seriousness of an incident.

MichelleBennett12 September 2012Prisoner Rights

Victorian Supreme Court reads down the right to freedom of expression

Magee v Delaney [2012] VSC 407 (11 September 2012)

The Supreme Court of Victoria has recently ruled on the scope of the right to freedom of expression under the Charter of Human Rights and Responsibilities Act 2006 (Vic). In this case, Justice Kyrou held that the right to freedom of expression under the Charter is not engaged where the expression involves property damage, or threats of property damage.

MichelleBennett11 September 2012Democratic Freedoms

Calling for stray cats not protected by right to freedom of expression

Thompson v Police [2012] NZHC 2234 (31 August 2012)

The New Zealand High Court dismissed the appellant's appeal against convictions for disorderly behaviour on the ground that the appellant's conduct did not involve an exercise of her right of freedom of expression pursuant to section 14 of the Bill of Rights Act 1990 (NZ). The High Court found that the appellant’s conduct (“calling for stray cats”) had caused a disturbance which the public could not reasonably be expected to endure.

MichelleBennett1 September 2012Democratic Freedoms

UN Human Rights Committee upholds freedom of association in Belarus

UN Human Rights Committee, Korneenko v Belarus, UN Doc CCPR/C/105/D/1226/2003 (29 August 2012)

Viktor Korneenko resides in Gomel, Belarus, where he was the chairperson of the Gomel regional association of Civil Initiatives. This NGO was involved in election monitoring in Belarus. Civil Initiatives was dissolved by court order after Belarusian authorities fined Korneenko and confiscated the organisation’s computer equipment on the basis that Koreenko had violated a temporary presidential decree banning the use of computer equipment, received as “untied foreign aid”, from being used for political purposes.

MichelleBennett29 August 2012United Nations, Democratic Freedoms

Torture, forced eviction and the State’s obligation to provide an effective remedy

Chiti v Zambia, UN Doc CCPR/C/105/D/1303/2004 (28 August 2012)

The UN Human Rights Committee considered an application against the State of Zambia lodged by the applicant, a Zambian national, on behalf of her children and her deceased husband, a former officer with the Zambian military. The Committee found that there had been a violation of articles 2, 7, 14, 17 and 23 of the International Covenant on Civil and Political Rights.

MichelleBennett28 August 2012Prisoner Rights, Human Rights Law & Institutions

Failure to provide effective protection against domestic violence violated CEDAW

Isatou Jallow v Bulgaria, UN Doc CEDAW/C/52/D/32/2011 (28 August 2012)

The CEDAW Committee found that Bulgaria violated several articles of the Convention on the Elimination of All Forms of Discrimination against Women by failing to investigate domestic violence allegations, failing to take domestic violence into account in making court orders and failing to provide the complainant with information regarding the whereabouts of her child.

MichelleBennett28 August 2012Women’s Rights, Human Rights Law & Institutions

Delay not unreasonable where accused unaware of charges

Russell v Pangallo [2012] ACTMC 4 (24 August 2012)

In the ACT Magistrates Court, a Magistrate held that a six year delay between the filing of a summons for a drink driving offence and the first court date for that offence did not constitute unreasonable delay giving rise to a breach of the ACT Human Rights Act 2004.

MichelleBennett24 August 2012Human Rights Law & Institutions

Prohibition against torture vs state immunity

Islamic Republic of Iran v Hashemi, 2012 QCCA 1449 (15 August 2012)

The Court of Appeal in Quebec, Canada considered the tension between state immunity under the State Immunity Act 1985 (RSC), the prohibition against torture and the application of customary international law in relation to a Canadian citizen who had been subject to physical and sexual abuse and torture in Iran.

MichelleBennett15 August 2012Prisoner Rights, Foreign Policy

Support worker breached prohibition against cruel or degrading treatment by dragging man with disability across carpeted hallway

Davies v State of Victoria [2012] VSC 343 (15 August 2012)

In a landmark decision, Justice Williams of the Supreme Court found that the conduct of a disability support worker in dragging a person with an intellectual disability across a carpeted hallway such as to cause a burn or abrasion constituted “cruel, inhuman or degrading treatment” contrary to section 10(b) of the Charter of Human Rights and Responsibilities.

MichelleBennett15 August 2012Discrimination & Equality, Health, Disability & Mental Health

Stay of proceedings where human right breached, despite finding of guilt

R v Bellusci, 2012 SCC 44 (3 August 2012) Summary

The full bench of Canada's Supreme Court has upheld a trial judge's decision to permanently stay proceedings against a prisoner who was found guilty of threatening to rape a prison guard's wife and children. Because the prisoner was assaulted during the incident, his rights were found to be infringed under the constitutional Canadian Charter of Rights and Freedoms, and a discretionary remedy available under section 24(1) was awarded on this basis.

MichelleBennett3 August 2012Human Rights Law & Institutions

Sex offender registration and the right to privacy

WBM v Chief Commissioner of Police [2012] VSCA 159 (30 July 2012)

In this decision, the Court of Appeal upheld a Supreme Court trial division decision that the Sex Offenders Registration Act 2004 (Vic) applied to a particular offender. Although the Court made the decision without reliance on the Charter, the Court expressed the view that the legislation was compatible with the right to privacy under the Victorian Charter. The decision also considered the definition of the section 13 right to privacy, the role of comparative international human rights jurisprudence under the Charter and the scope of rights protected by the common law principle of legality.

MichelleBennett30 July 2012Privacy

No extradition to death penalty

Minister of Home Affairs and Others v Tsebe and Others [2012] ZACC 16 (27 July 2012)

A majority of the Constitutional Court of South Africa has refused to extradite two people to Botswana on the basis that the South African Government cannot surrender a person to a country where he or she faces the death penalty without first seeking an assurance that the death penalty would not be imposed. Aptly summarised by Yacoob ADCJ, “this judgment leaves the government in no doubt that deportation, extradition or any form of removal under these circumstances is wholly unacceptable”.

MichelleBennett27 July 2012Human Rights Law & Institutions, Foreign Policy

Risk of persecution where no political beliefs are held

RT (Zimbabwe) & Ors (Respondents) v Secretary of State for the Home Department
(Appellant); KM (Zimbabwe) (FC) (Appellant) v Secretary of State for the Home Department (Respondent) [2012] UKSC 38 (25 July 2012)

The Supreme Court of the United Kingdom considered whether an individual who has no political views, and therefore does not support the persecutory regime in his or her home country, is entitled to a claim for asylum where the alternative is to lie and feign loyalty to that regime in order to avoid persecution.

MichelleBennett25 July 2012Human Rights Law & Institutions

Disability hate crimes and the State’s responsibility to protect the vulnerable

Ðordević v Croatia [2012] ECHR 1640 (24 July 2012)

The European Court of Human Rights considered an application against the Republic of Croatia lodged by the first applicant, a physically and mentally disabled Croatian national, and the second applicant, his mother and full-time carer. The Court found that there had been a violation of articles 3, 8 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms in respect of both the first and second applicants through the Croatian authorities’ failure to take all reasonable measures to prevent the ongoing abuse of the first applicant by a group of schoolchildren.

MichelleBennett24 July 2012Discrimination & Equality, Disability & Mental Health

Magistrate dismisses charges against protesters to uphold rights to freedom of expression, association and peaceful assembly

Victoria Police v Anderson & Ors (2012) Magistrates' Court of Victoria (23 July 2012)

In the Magistrates' Court of Victoria, Magistrate Garnett dismissed charges against the 16 accused for the offences of trespass and besetting premises under the Summary Offences Act 1966 (Vic) (the SOA) in relation to a demonstration that occurred at Max Brenner's chocolate bar in Melbourne. Relevantly, in dismissing the charge of trespass, Magistrate Garnett took into account the protection of the rights to freedom of expression and association under sections 15 and 16 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). This case note focuses in particular on the Charter aspects of the decision.

MichelleBennett23 July 2012Democratic Freedoms, Police

Charges against protesters dismissed: Charter rights relevant in interpreting provisions of Summary Offences Act 1966

Victoria Police v Anderson & Ors (2012) Magistrates’ Court of Victoria (23 July 2012)

In the Magistrates’ Court of Victoria, Magistrate Garnett dismissed charges against the 16 accused for the offences of trespass and besetting premises under the Summary Offences Act 1966 (Vic) (the SOA) in relation to a demonstration that occurred at Max Brenner’s chocolate bar in Melbourne. Relevantly, in dismissing the charge of trespass, Magistrate Garnett took into account the protection of the rights to freedom of expression and association under sections 15 and 16 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). This case note focuses in particular on the Charter aspects of the decision.

MichelleBennett23 July 2012Democratic Freedoms, Police

French authorities failed in duty to prevent suicide in prison

Ketreb v France [2012] ECHR 1626 (19 July 2012)

In this case, Ketreb v France, the European Court of Human Rights held that there had been a violation of article 2 (right to life) of the European Convention on Human Rights and a violation of article 3 (prohibition of inhuman or degrading treatment) of the Convention. The case concerned the suicide in prison of a drug addict convicted of armed assault. The Court found that the State had failed in its duty to show particular vigilance to prevent a vulnerable prisoner from committing suicide.

MichelleBennett19 July 2012Prisoner Rights

Mandatory retirement age not unconstitutional in Canada

Air Canada Pilots Association v Kelly and Others, 2012 FCA 209 (17 July 2012)

A full bench of Canada’s Federal Court has found that mandatory age-based retirement schemes are not unlawful under the constitutional Charter of Rights and Freedoms, despite limiting the right to equality. In reaching this conclusion the Court applied earlier precedent which says that mandatory retirement is a justifiable limit on human rights.

MichelleBennett17 July 2012Discrimination & Equality

The scope of the right to respect for private or family life

Ali & Anor, R (on the application of) v Minister for the Cabinet Office the Statistics Board [2012] EWHC 1943 (Admin) (13 July 2012)

This decision of the English and Wales High Court considered the right to respect for private and family life and the exceptions to this right. In particular, the High Court considered whether the Statistics Board’s ability to disclose personal information provided to it in the census for the purposes of a criminal investigation or proceedings was incompatible with a person’s Convention right to privacy.

MichelleBennett13 July 2012Privacy

Grand Chamber of the European Court outlines the scope of the right to freedom of expression

Mouvement Raelien Suisse v Switzerland [2012] ECHR 1598 (13 July 2012)

This is a decision of the Grand Chamber of the European Court of Human Rights regarding the scope of the right to freedom of expression.

It involves an allegation by the Mouvement Raelien Suisse (Association) that the refusal by the Swiss authorities of the request for the Association to publish its posters in the Neuchatel municipality breached its rights to freedom of religion and freedom of expression, as protected by articles 9 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

MichelleBennett13 July 2012Democratic Freedoms

Prisoner wage deductions for work outside prison do not breach of human rights

S & Anor, R (on the application of) v Secretary of State for Justice [2012] EWHC 1810 (Admin) (3 July 2012)

The England and Wales High Court has held that a discretion held by prison governors to levy deductions from a prisoner’s earnings where the prisoner is working for a private employer on a release scheme outside prison is not incompatible with their human rights having regard to the margin of appreciation afforded to States.

MichelleBennett3 July 2012Prisoner Rights

VCAT considers the Charter in ordering the creation of a tenancy agreement

DS v Aboriginal Housing Victoria (Unreported, Victorian Civil and Administrative Tribunal, Residential Tenancies List, Member Warren, 3 July 2012)

In a recent decision, the Victorian Civil and Administrative Tribunal considered the Charter rights of an applicant for the creation of a tenancy agreement. The Tribunal found that the application engaged the applicant’s right under sections 13 and 17 of the Victorian Charter, and ultimately ordered the respondent landlord (a social housing provider) to enter a tenancy agreement with the applicant.

MichelleBennett3 July 2012Housing

Allegations of torture must be fully and effectively investigated

Sodupe v Spain, UN Doc CAT/C/48/D/453/2011 (28 June 2012)

The UN Committee Against Torture has found that Spain had failed to ensure that its courts proceeded to a prompt and impartial investigation, where there is reasonable ground to believe that an act of torture has been committed in its jurisdiction, in violation of article 12 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. However, the Committee found no violation of articles 14 and 15 of the Convention.

MichelleBennett28 June 2012Prisoner Rights, Foreign Policy

Retention of photographs by police violated the right to privacy

R (on the Application of RMC and FJ) v Commissioner of Police of the Metropolis [2012] EHWC 1681 (22 June 2012)

In the recent case of R (on the Application of RMC and FJ) v Commissioner of Police of the Metropolis and Others (RMC and FJ), the High Court of England and Wales held that the indefinite retention of photographs of persons who are arrested, but not subsequently prosecuted, breaches the right to private life protected in article 8 of the European Convention on Human Rights. The case applies and extends the earlier European Court of Human Rights decision of S v United Kingdom (2009) 48 EHRR 50, which concerned the retention of DNA samples and fingerprints.

MichelleBennett22 June 2012Police, Privacy

Local authority’s actions in relation to children in foster care declared “unlawful” under UK Human Rights Act

A & S (Children) v Lancashire County Council [2012] EWHC 1689 (Fam) (21 June 2012)

In this case, brothers aged 16 and 14 took action under the Human Rights Act 1998 (UK) in relation to their treatment while in the care of the Lancashire County Council. The England and Wales High Court declared that the Council and one of its employees, an Independent Reporting Officer, had acted incompatibly with the boys’ right to respect for private and family life, their right to a fair trial and the prohibition of torture.

MichelleBennett21 June 2012Privacy, Child Rights

UK court holds that extradition of alleged sex offender to US would result in flagrant denial of rights

Sullivan v The Government of the United States of America & Anor [2012] EWHC 1680 (20 June 2012)

The appellant appealed to the England and Wales High Court against orders for his extradition to the United States to be prosecuted for sexual offences. Lord Justice Moses held that the extradition would expose the appellant to a real risk of detainment under the Minnesota “civil commitment” program, which would amount to a flagrant denial of his rights under article 5.1 (deprivation of liberty) of the European Convention on Human Rights.

MichelleBennett20 June 2012Prisoner Rights

Human Rights Committee finds that right to freedom of religious belief extends to protection of conscientious objection

Atasoy and Sarkut v Turkey, UN Doc CCPR/C/104/D/1853-1854/2008 (19 June 2012)

The UN Human Right Committee recently decided that Turkey’s actions in response to Atasoy and Sarkut’s refusal to be drafted for compulsory military service on grounds of conscientious objection was incompatible with article 18 of the International Covenant on Civil and Political Rights.

MichelleBennett19 June 2012Democratic Freedoms

Retrospective preventive detention incompatible with human rights

G v Germany [2012] ECHR 956 (7 June 2012)

The European Court of Human Rights has unanimously held that Germany violated the prohibition under article 7(1) of the European Convention on Human Rights on imposing a penalty heavier than that which existed at the time of the offence, by imposing a period of retrospective preventive detention.

MichelleBennett7 June 2012Prisoner Rights, Human Rights Law & Institutions

Freedom of association permitted under workers’ collective bargaining regime

Mounted Police Association of Ontario v Canada, 2012 ONCA 363 (1 June 2012)

In Mounted Police Association of Ontario v Canada, the Ontario Court of Appeal considered the scope of the freedom of association under section 2(d) of the Canadian Charter of Rights and Freedoms. The question for the Court was whether a statutory employee relations regime imposed on the Royal Canadian Mounted Police violated section 2(d) of the Charter. Justice Juriansz, with whom Justices Doherty and Rosenberg agreed, held that this statutory regime did not make it impossible for members of the Police to exercise their fundamental freedom of association. Consistent with this freedom, Police members were able to form independent employee associations to collectively achieve their workplace goals.

MichelleBennett1 June 2012Democratic Freedoms, Police

Excessive use of force against protesters by police violated prohibition against torture and ill-treatment

Gamarra v Paraguay, UN Doc CCPR/C/104/D/1829/2008 (30 May 2012)

The UN Human Rights Committee has found that the use of force by the Paraguay police against peaceful demonstrators was disproportionate, constituting a violation of article 7 of the International Covenant on Civil and Political Rights. Paraguay was also found to have contravened article 2, paragraph 3 of the Covenant by depriving the demonstrators with access to an effective remedy in relation to the human rights violations.

MichelleBennett30 May 2012United Nations, Democratic Freedoms

Compatibility of intrusive bail conditions with the right to privacy under the ACT Human Rights Act

R v Wayne Michael Connors [2012] ACTSC 80 (28 May 2012)

Chief Justice Higgins of the ACT Supreme Court has rejected claims made by Mr Connors that a bail condition requiring he undergo urinalysis (urine testing) to enforce abstinence from illicit drugs was beyond the powers conferred by section 25 of the Bail Act 1992 (ACT). The court confirmed that the bail conditions did not breach Mr Connors’ right to privacy under section 12 of the Human Rights Act 2004 (ACT).

MichelleBennett28 May 2012Human Rights Law & Institutions

Liberty and security of mentally ill persons at trial

Centre for Addiction and Mental Health v Ontario, 2012 ONCA 342 (24 May 2012)

The Court of Appeal for Ontario allowed an appeal by the Centre for Addiction and Mental Health and another setting aside an order of the trial judge requiring immediate treatment of a mentally ill prisoner to be conducted at the Centre. The Court held that while to delay such treatment on the basis that there was not sufficient space at the Centre for the prisoner would undoubtedly be a deprivation of life, liberty and security of his person per article 7 of the Canadian Charter of Rights and Freedoms, to do so nonetheless came within the fundamental justice exception to that article.

MichelleBennett24 May 2012Disability & Mental Health

When is it permissible to limit the right to vote?

Scoppola v Italy (No 3) [2012] ECHR 868 (22 May 2012)

In this decision, the European Court of Human Rights found that an Italian legislative regime that disenfranchised persons who had been convicted of specific offences and persons sentenced to terms of imprisonment greater than three years did not contravene article 3 of Protocol No 1 to the European Convention on Human Rights, which protects the right to vote.

MichelleBennett22 May 2012Democratic Freedoms

UN Committee on the Rights of Persons with Disabilities requires individual circumstances be considered to prevent discrimination

HM v Sweden, UN Doc CRPD/C/7/D/3/2011 (21 May 2012)

HM v Sweden is the first decision of the UN Committee on the Rights of Persons with Disabilities. The Committee found that a State party may violate the Convention on the Rights of Persons with Disabilities if it fails to consider an individual’s particular health circumstances in applying its national laws, resulting in discrimination on the grounds of that individual’s disability.

MichelleBennett21 May 2012Discrimination & Equality, Disability & Mental Health

The obligation to investigate suspected instances of torture or ill-treatment

MM and AO (A Child), R (on the application of) v Secretary of State for the Home Department [2012] EWCA Civ 668 (18 May 2012)

This case adds to pre-existing UK and European authority about the circumstances in which an investigation of an allegation of torture or ill-treatment will be required. In this particular case, an intervention to stop a protest at an immigration detention centre caused such physical and psychological harm that a claim of ill-treatment was raised. The question was thus to what extent, especially in cases involving children, an independent investigation was required beyond procedures already in place.

MichelleBennett18 May 2012Democratic Freedoms, Refugee & Asylum Seeker Rights

Right to fair hearing not engaged in process leading to dismissal from employment

Mattu v University Hospitals of Coventry and Warwickshire NHS Trust [2012] EWCA Civ 641 (18 May 2012)

The England and Wales Court of Appeal has found that a disciplinary process which resulted in the dismissal of an employee did not engage that employee’s civil rights under the European Convention of Human Rights. Thus, the employer was not bound by the obligations to provide a fair hearing under the Convention.

MichelleBennett18 May 2012Human Rights Law & Institutions

Disability discrimination in housing benefits determinations

Burnip v Birmingham City Council & Anor (Rev 1) [2012] EWCA Civ 629 (15 May 2012)

Due to severe disabilities, the applicants required extra bedrooms to accommodate their special needs. However, their housing benefits were only calculated based on what would reasonably be required for able-bodied person. The applicants successfully argued before the England and Wales Court of Appeal that this breached their right to freedom from discrimination.

MichelleBennett15 May 2012Discrimination & Equality, Disability & Mental Health

Victorian Court of Appeal considers relationship between freedom of expression and misleading and deceptive conduct

Noone, Director of Consumer Affairs Victoria v Operation Smile (Australia) Inc & Ors [2012] VSCA 91 (11 May 2012)

The Court of Appeal has found that operators of a complementary medicine centre specialising in treatment of cancer engaged in misleading or deceptive conduct in trade or commerce in making representations about the efficacy of their treatments. In so doing, the Court overturned a Supreme Court decision. In the decision, the Court considers the relationship between freedom of expression, as protected in the Victorian Charter, and misleading and deceptive conduct.

MichelleBennett11 May 2012Health, Democratic Freedoms

Delay in providing psychiatric care amounts to “inhuman treatment”

M.S. v United Kingdom [2012] ECHR 804 (3 May 2012)

The European Court of Human Rights has found that a delay in securing appropriate psychiatric treatment for a man who was detained by police constituted “degrading treatment” in breach of article 3 of the European Convention, notwithstanding that the police officers and medical staff involved did not intend to debase or humiliate the man.

MichelleBennett3 May 2012Prisoner Rights, Disability & Mental Health

Balancing the right to freedom of expression with the right to privacy in an industrial dispute

United Food and Commercial Workers, Local 401 v Alberta (Attorney General), 2012 ABCA 130 (30 April 2012)

This decision of the Court of Appeal of Alberta considered the scope of the right to freedom of expression in the Canadian Charter of Rights and Freedoms. This was considered in the context of whether a union had the right to collect and distribute images of people crossing a picket line.

This appeal was brought by the Attorney General of Alberta who argued that the union's collection and use of the images constituted a breach of privacy.

MichelleBennett30 April 2012Privacy, Democratic Freedoms

Failure to provide medical treatment and support can constitute a breach of human rights

De Almeida, R (on the application of) v Royal Borough of Kensington and Chelsea [2012] EWHC 1082 (Admin) (27 April 2012)

The England and Wales High Court decided that the decision of the Royal Borough of Kensington and Chelsea to deny a terminally ill Portuguese man care and assistance, and to deport him, was a breach of his right to freedom from ill-treatment and his right to respect for his private life protected by articles 3 and 8 of the European Convention of Human Rights.

MichelleBennett27 April 2012Health

Article 2 and the right to life: Reopening coronial inquests

The Queen (on the application of Medihani) v HM Coroner for Inner South District of Greater London [2012] EWHC 1104

The High Court of England and Wales held that the decision of the District Coroner to close down an inquest into the death of a teenager was unreasonable and unlawful. This error of law resulted from the Coroner’s failure to consider the obligations of the Metropolitan Police under article 2 of the European Convention on Human Rights, which protects the right to life.

MichelleBennett26 April 2012Human Rights Law & Institutions, Police

Failure to prevent loss of ownership of property a violation of CEDAW

Cecilia Kell v Canada, UN Doc CEDAW/C/51/D/19/2008 (26 April 2012)

The UN Committee on the Elimination of Discrimination against Women has found that Canada violated the rights of an Aboriginal woman by failing to prevent her eviction or dispossession of a house.

MichelleBennett26 April 2012Women’s Rights, Housing, Aboriginal & Torres Strait Islander Peoples' Rights

Government defies UN directive to return deported man to Australia

Australia is flagrantly violating its international human rights obligations and undermining the rule of law by refusing to abide by a decision of the United Nations Human Rights Committee – the world’s highest expert human rights body. In the landmark decision of Nystrom v Australia issued in September 2011, the Committee held that Australia violated the human rights of a permanent resident, Stefan Nystrom, by deporting him to Sweden.

MichelleBennett25 April 2012United Nations

Statutory prohibition against political advertising compatible with right to freedom of expression

London Christian Radio & Anor, R (on the application of) v Radio Advertising Clearance Centre & Anor [2012] EWHC 1043 (Admin) (20 April 2012)

The England and Wales High Court held that a statutory prohibition against political advertising did not infringe the right to freedom of expression under article 10 of the European Convention on Human Rights. The Court held that the Radio Advertising Clearance Centre acted lawfully in refusing clearance for a proposed radio advertisement that requested information to “inform public debate” and “help make a fairer society” as the advertisement was directed towards a political end and thus in contravention of the statutory prohibition.

MichelleBennett20 April 2012Democratic Freedoms

Detention of mentally ill asylum seeker violates European Convention

HA (Nigeria), R (on the application of) v Secretary of State for the Home Department [2012] EWHC 979 (Admin) (17 April 2012)

The High Court of England and Wales considered the detention of a Nigerian asylum seeker who was suffering serious mental health difficulties whilst in detention

MichelleBennett17 April 2012Disability & Mental Health, Refugee & Asylum Seeker Rights

Failure to ensure de facto equality in employment a violation of CEDAW

RKB v Turkey, UN Doc CEDAW/C/51/D/28/2010 (13 April 2012)

The UN Committee on the Elimination of Discrimination against Women has found that the termination of a woman from employment on the basis of her alleged extramarital affair – in circumstances where her male co-worker was not terminated – violated the right to equality and the prohibition against wrongful gender stereotyping.

MichelleBennett13 April 2012Discrimination & Equality, Women’s Rights

Can emergency warrantless wiretapping provisions strike an appropriate constitutional balance?

R v Tse [2012] SCC 16 (13 April 2012)

The Supreme Court of Canada has affirmed the importance of the right to privacy, ruling unanimously that section 184.4 of the Criminal Code R.S.C 1985, which permits emergency wiretapping without a warrant, is unconstitutional. The court weighed the rights entrenched in the Canadian Charter of Rights and Freedoms against society's interest in preventing serious harm and declared section 184.4 to be constitutionally invalid. The declaration was suspended for a period of 12 months to provide Parliament an opportunity to redraft the provision in a way that strikes an appropriate constitutional balance.

MichelleBennett13 April 2012Privacy