Human Rights Case Summaries

Provision penalising offensive postal communications not an unconstitutional burden on political communication

Monis v The Queen; Droudis v The Queen [2013] HCA 4 (27 February 2013)

The High Court of Australia has split 3:3 on whether a provision of the Criminal Code (Cth) making it an offence for a person to use a postal or similar service in an offensive way is invalid as an impermissible burden on the freedom of communication about government or political matters implied in the Australian Constitution (“implied freedom”). French CJ, Hayne and Heydon JJ separately answered the question in the affirmative, while Crennan, Kiefel and Bell JJ jointly answered in the negative. Pursuant to section 23(2)(a) of the Judiciary Act 1903 (Cth), which deals with equally divided opinions of the Court, the decision appealed from — that of the NSW Court of Criminal Appeal that the provision is valid — was affirmed.

MichelleBennett27 February 2013Human Rights Law & Institutions

Street preacher case confirms limits on freedom of political communication

Attorney-General for South Australia v Corporation of the City of Adelaide and Ors [2013] HCA 3

This High Court decision concerns the scope of the implied freedom of political communication under the Australian Constitution. Specifically, it considered the second part of the test from Lange v Australian Broadcasting Corporation 189 CLR 520 – whether a by-law was reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of representative democracy as the constitutionally prescribed system of government.

MichelleBennett27 February 2013Democratic Freedoms

Balancing of the right to family life against the protection of the child

J (Children) [2013] UKSC 9

The United Kingdom Supreme Court has considered the appropriate balance to be struck between the right of the child to live in a safe and nurturing environment and the right to family life in circumstances where those two rights are said to be in conflict. Although these rights are most often complementary, there are unfortunate cases where a child is at risk of being harmed by a family member and protecting the child (and upholding their human rights) can necessitate an intrusion by the State into a family’s private life. In this judgment, the Court made a weighted legal analysis of when and how such an intrusion can be justified.

MichelleBennett20 February 2013Child Rights, Privacy, Foreign Policy

Examining discrimination in second-parent adoption

X v Austria [2013] ECHR 057

The Grand Chamber of the European Court of Human Rights has found that where second-parent adoption is available for unmarried different-sex couples, the impossibility of second-parent adoption by same sex couples is discriminatory and violates articles 8 and 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

MichelleBennett19 February 2013Discrimination & Equality, LGBTI Rights

Urban renewal program held to be eviction “through the back door”

Motswagae and Others v Rustenburg Local Municipality and Another [2013] ZACC 1

The Constitutional Court of South Africa held that excavation work in close proximity to the applicants’ homes was tantamount to eviction, and that section 26(3) of the Constitution protects the undisturbed occupation of home unless there is a court order.

MichelleBennett7 February 2013Housing

Discriminatory inheritance laws violate rights of illegitimate children

Fabris v France [2013] ECHR, Application no.16574/08

The European Court of Human Rights recently handed down a decision which identified a violation of article 14 of the Convention for the Protection of Human Rights and Fundamental Freedoms where an individual “born of adultery” was denied the right – due to the operation of legislation in France – to inherit an equal share of his mother's estate.

MichelleBennett7 February 2013Discrimination & Equality, Child Rights

France’s prohibition on wearing religious symbols in state schools breached ICCPR

Bikramjit Singh v France, UN Doc CCPR/C/106/D/1852/2008

The United Nations Human Rights Committee has found that France's restrictions on the wearing of religious symbols or clothing in state schools breached a student's right to religious freedom under the International Covenant on Civil and Political Rights.

MichelleBennett4 February 2013Democratic Freedoms

Overrepresentation of ethnic minority children in remedial schools reveals racially discriminatory practices

Case of Horvath and Kiss v Hungary [2013], ECHR Application no. 11146/11

The European Court of Human Rights (ECHR) has found that Hungary’s procedures for placing children in schools for children with mental disabilities resulted in discrimination against the Roma, curtailing their enjoyment of the right to education. This is the most recent in a series of ECHR cases addressing the segregation of Roma children within European state education systems.

MichelleBennett29 January 2013Disability & Mental Health, Discrimination & Equality, Child Rights

Criminal record checks breach the right to privacy

R (on the application of T) v Greater Manchester Chief Constable & Ors [2013] EWCA Civ 25 (29 January 2013)

The UK Court of Appeal recently held that disclosure of a person’s convictions or police cautions can breach their right to privacy under the European Convention on Human Rights.

MichelleBennett29 January 2013Privacy

Balancing the freedom of religious expression with the protection against discrimination

Case of Eweida and Others v The United Kingdom [2013] ECHR, Applications nos. 48420/10, 59842/10, 51671/10 and 36516/10 (15 January 2013)

In four different applications, the European Court of Human Rights considered the balance the state party had purported to strike between religious freedom and the protection against discrimination. In so doing, the Court afforded a significant “margin of appreciation” to the state party.

MichelleBennett15 January 2013Democratic Freedoms

Right to wear a niqab vs right to a fair trial

MichelleBennett20 December 2012Discrimination & Equality, Democratic Freedoms

Unauthorised police surveillance in public place does not violate right to privacy

Kinloch (Appellant) v Her Majesty’s Advocate (Respondent) (Scotland) [2012] UKSC 62 (19 December 2012)

The UK Supreme Court held that an unauthorised police surveillance operation did not breach an individual’s right to respect for their private life under article 8 of the European Convention on Human Rights. This was because the surveillance occurred in public places and the subject of the surveillance had no reasonable expectation of privacy.

MichelleBennett19 December 2012Privacy, Police

Extraordinary rendition violates right to liberty and prohibition of torture

El-Masri v the former Yugoslav Republic of Macedonia [2012] ECHR 2067 (13 December 2012)

The European Court of Human Rights held the former Yugoslav Republic of Macedonia responsible for the "extraordinary rendition" of a German citizen, which involved his transfer into the custody of United States authorities, unlawful detention and ill-treatment amounting to torture.

MichelleBennett13 December 2012Foreign Policy, Prisoner Rights

South African Constitutional Court affirms prisoner rights

Dudley Lee v Minister of Correctional Services [2012] ZACC 30 (11 December 2012)

The Constitutional Court of South Africa affirms that domestic law must provide an effective remedy for breach of rights contained in the South African Bill of Rights and that failure to minimise the risk of contracting a tuberculosis infection in prison breaches the right to humane conditions in detention.

MichelleBennett11 December 2012Prisoner Rights

Law beyond borders: ECHR considers European Convention’s extra-territorial application

Chagos Islanders v United Kingdom [2012] ECHR, Application no. 35622/04 (11 December 2012)

The European Court of Human Rights rejected, on admissibility grounds, claims by former Chagos Islands inhabitants against the UK. The Court considered the extra-territorial application of the European Convention on Human Rights.

MichelleBennett11 December 2012Human Rights Law & Institutions, Foreign Policy

The Charter and the child’s right to a fair hearing

A & B v Children’s Court of Victoria & Ors [2012] VSC 589 (5 December 2012)

The plaintiffs were two sisters aged nine and 11 who made an application to the Supreme Court of Victoria seeking to quash orders of the Children’s Court that they lacked maturity to provide instructions to lawyers and denying them leave to be represented by the same legal practitioner. The main issue was the meaning of the expression “maturity to give instructions” under the Children, Youth and Families Act 2005 (Vic).

MichelleBennett5 December 2012Child Rights, Human Rights Law & Institutions

Publication of personal photographs: Weighing freedom of expression against privacy

Verlagsruppe News Gmbh and Bobi v Austria [2012] ECHR, Application no 59631/09 (4 December 2012)

The European Court of Human Rights was asked to weigh the right to freedom of expression against the right of individuals to privacy. The Court found that the decision of a domestic Austrian court to restrain publication of a photograph involving a Catholic priest embroiled in a controversy, but not to grant damages for defamation, was a fair balance between articles 8 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

MichelleBennett4 December 2012Privacy, Democratic Freedoms

Admissibility of controlled substances found in breach of fundamental protections against illegal detention, search and seizure.

R v Aucoin, 2012 SCC 66 (30 November 2012)

The Canadian Supreme Court found that, although minor vehicle infractions should not lead to the detention of the driver or the search and seizure of their property, and that those actions are in breach of the driver’s fundamental rights, the particular circumstances of this case are such that the seized substances, in this case cocaine, are admissible as evidence.

MichelleBennett30 November 2012Human Rights Law & Institutions, Police

Facebook, unlawful harassment and the right to privacy

XY v Facebook Ireland Ltd [2012] NIQB 96 (30 November 2012)

The High Court of Justice in Northern Ireland, Queen’s Bench Division, recently considered and granted a sex offender’s application for an interim injunction to force Facebook to remove a page that prima facie constituted unlawful harassment of him.

MichelleBennett30 November 2012Privacy

The right to freedom of expression includes jogging naked in the park

Pointon v Police [2012] NZHC 3208 (30 November 2012)

The New Zealand High Court dismissed the appellant's offensive conduct conviction for jogging through a public park while naked. The High Court found that the appellant was exercising his right to freedom of expression under section 14 of the Bill of Rights Act 1990 (NZ) , and that the conduct, while "unwelcome", was not sufficiently offensive to amount to a criminal offence.

MichelleBennett30 November 2012Democratic Freedoms

Protection from arbitrary eviction for Roma community in Bulgaria

Naidenova et al v Bulgaria, UN Doc CCPR/C/106/D/2073/2011 (27 November 2012)

A Roma community that had lived for over 70 years in an informal settlement on municipal land in Bulgaria was issued with an eviction order on the basis that the buildings were constructed without the proper permits on municipal property. The UN Human Rights Committee considered that, in light of all the circumstances, the execution of the eviction order would violate the right of the Roma community to not be arbitrarily evicted from their homes under article 17 of the International Covenant on Civil and Political Rights unless satisfactory replacement housing was made available to them beforehand.

MichelleBennett27 November 2012Foreign Policy, Housing

No protection for donor offspring

Pratten v British Columbia (Attorney General) 2012 BCCA 480 (27 November 2012)

The Court of Appeal for British Columbia (Court of Appeal) recently held that the Canadian Charter of Rights and Freedoms (Charter) does not create a positive right for donor conceived individuals to know their biological origins. In this case, the plaintiff argued that by enacting legislation only for the benefit of adoptees, the legislature discriminated against adults conceived from anonymous donors. The plaintiff also argued that the Charter created a positive right for donor offspring to access information about their biological origins. The Court of Appeal rejected these claims, overturning a decision of the Supreme Court of British Columbia (Supreme Court).

MichelleBennett27 November 2012Child Rights, Privacy

Forcing journalists to reveal sources would have “chilling effect” on freedom of expression

Telegraaf Media Nederland Landelijke Media BV and Others v The Netherlands [2012] ECHR, Application no. 39315/06 (22 November 2012)

The European Court of Human Rights upheld journalists’ right to protect their sources based on the freedom of expression in the European Convention for the Protection of Human Rights and Fundamental Freedoms. The Court stressed the importance of weighing up the national interest against the need to protect journalistic sources, finding that an independent review process is of paramount importance in maintaining the right to freedom of expression under the Convention.

MichelleBennett22 November 2012Democratic Freedoms, Privacy

Life without parole and the prohibition on inhuman or degrading treatment

Oakes and Others v R [2012] EWCACrim 2434 (21 November 2012)

The England and Wales Court of Appeal has held that the discretionary imposition of life sentences with no possibility of parole does not necessarily violate the European Convention on Human Rights’ prohibition on inhuman and degrading treatment or punishment. The decision comes a week before the Grand Chamber of the European Court of Human Rights hears a case addressing similar questions.

MichelleBennett21 November 2012Prisoner Rights

Human Rights Committee finds discrimination in conjunction with violation of freedom of expression

Irina Fedotova v Russian Federation, UN Doc CCPR/C/106/D/1932/2010, 19 November 2012

The Human Rights Committee found the Russian Federation to have acted in violation of Articles 19 (Freedom of Expression) and 26 (Prohibition of Discrimination) of the ICCPR. The case concerned the treatment of LGBT human rights activist Irina Fedotova, who was arrested by the police and fined by a Russian Administrative Court on grounds that she breached legislation on “public actions aimed at the propaganda of homosexuality among minors” after having displayed posters promoting tolerance towards homosexuality near a local school.

MichelleBennett19 November 2012Democratic Freedoms, Discrimination & Equality

Forced sterilisation of Roma women is inhuman and degrading but not discriminatory

IG & Ors v Slovakia [2012] ECHR 1910 (13 November 2012)

The European Court of Human Rights has again declined to rule on whether the forced sterilisation of Roma women in Slovakia constitutes discrimination under article 14 of the European Human Rights Convention. This is the third such forced sterilisation case to come before the Court. The Court held that the sterilisation of two Roma women constituted inhuman and degrading treatment, and that Slovakia had violated the women’s right to respect for private and family life. The Court awarded damages and costs to the applicants. The claim of a third woman was struck out due to her death. The Court denied her children’s standing to continue the application on her behalf.

MichelleBennett13 November 2012Women’s Rights, Discrimination & Equality

Scope of the obligation to protect life

Van Colle v United Kingdom [2012] ECHR, Application No 7678/09 (13 November 2012)

This decision of the European Court of Human Rights considered the scope of a state's obligation to protect life, which is contained in the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The Court re-stated that authorities have a positive obligation to take action where they know, or ought to know, that there is a “real and immediate risk” to the life of an identified individual from the criminal acts of another. However, in this case, the Court found that the circumstances did not establish such an obligation.

MichelleBennett13 November 2012Human Rights Law & Institutions

Absence of legislation no excuse for failure to protect against domestic servitude

CN v United Kingdom [2012] ECHR 1911 (13 November 2012)

The European Court of Human Rights found against the Government of the United Kingdom where authorities failed to adequately investigate allegations of forced domestic servitude because at the time of the offence there was a lacuna in the law.

MichelleBennett13 November 2012Health, Disability & Mental Health, Human Rights Law & Institutions

Collection of data and the right to privacy

MM v United Kingdom [2012] ECHR 1906 (13 November 2012)

In this case, the European Court of Human Rights considered the collection, retention and use of data in regards to the scope of the right to privacy.

MichelleBennett13 November 2012Privacy

State failure to provide special education is discriminatory

Moore v British Columbia (Education), 2012 SCC 61 (9 November 2012)

The Supreme Court of Canada has held that the School Act creates a statutory commitment to the education of all children in British Columbia, making the provision of special education a statutory commitment and not a dispensable luxury.

MichelleBennett9 November 2012Child Rights, Discrimination & Equality

UK refusal to reunite family is discriminatory

Case of Hode and Abdi v United Kingdom [2012] EHCR, Application no. 22341/09 (6 November 2012)

The European Court of Human Rights has held that the United Kingdom Government’s refusal to allow the family reunion of a refugee and his wife under relevant immigration rules was unlawfully discriminatory against the refugee on the basis of his immigration status.

MichelleBennett6 November 2012Discrimination & Equality, Refugee & Asylum Seeker Rights

Dismissal based on racist political activities unacceptably infringes freedom of association

Redfearn v the United Kingdom (Application no. 47335/06, ECHR, 6 November 2012)

The European Court of Human Rights has held that the UK’s failure to protect a bus driver against unfair dismissal based on his racist political activities was an unacceptable infringement of his freedom of association.

MichelleBennett6 November 2012Democratic Freedoms, Human Rights Law & Institutions

Failure to verify information submitted by Protection Visa applicant violates Australia’s non-refoulement obligations

Chun Rong v Australia [2012], CAT/C/49/D/416/2010

The UN Committee against Torture found that Australia was in violation of its non-refoulement obligations under the Convention against Torture because it failed to satisfy procedural obligations under article 3.

MichelleBennett5 November 2012Refugee & Asylum Seeker Rights

Please return my prisoner – Habeas corpus and unlawful transfer

Secretary of State for Foreign and Commonwealth Affairs v Rahmatullah [2012] UKSC 48 (31 October 2012)

The Supreme Court of the United Kingdom found that the continued detention of a civilian combatant was prima facie unlawful under the Geneva Conventions. The prisoner was initially captured by British forces before being handed over to the US, which transferred him from Iraq to Afghanistan. The habeas corpus application failed because the UK showed that it had no control over the prisoner’s detention.

MichelleBennett31 October 2012Prisoner Rights, Human Rights Law & Institutions

Supreme Court refuses to invalidate votes on basis of administrative error

Opitz v Wrzesnewskyj, 2012 SCC 55 (25 October 2012)

A majority of Canada's Supreme Court has found that in a recent election where a number of administrative errors occurred which indicated some voters did not satisfy the identification requirements under the Canada Elections Act, SC 2000, c 9 the election result was nonetheless valid. In reaching its conclusion, the Supreme Court majority favoured a substantive approach that upholds an entitlement to vote based on the right to vote guaranteed under Canada's Charter of Rights and Freedoms, rather than the procedural requirements under the Act.

MichelleBennett25 October 2012Human Rights Law & Institutions, Foreign Policy

Authorities’ obligations to adequately respond to domestic violence

Irene Wilson v The United Kingdom [2012] ECHR, Application no. 10601/09 (23 October 2012)

The European Court of Human Rights found that the Northern Ireland authorities had not failed in their duty to respond to domestic violence perpetrated against the applicant, Ms Irene Wilson, and her complaint was deemed inadmissible.

MichelleBennett23 October 2012Human Rights Law & Institutions

Pornography discovered in the workplace – Employees’ rights to privacy

R v Cole 2012 SCC 53 (19 October 2012)

Nude photographs of an underage female student were discovered on a teacher’s work laptop. He was charged with possession of child pornography and unauthorised use of a computer under the Criminal Code R.S.C. 1985, c. C-46. The actions of the police in obtaining possession of the accused’s computer (and files copied from it) raised questions about the accused’s rights to be free from unreasonable state search and seizure under section 8 of the Canadian Charter of Rights and Freedoms.

MichelleBennett19 October 2012Privacy, Human Rights Law & Institutions

Special religious instruction at school not unlawful discrimination

Aitken & Ors v The State of Victoria – Department of Education & Early Childhood Development (Anti-Discrimination) [2012] VCAT 1547 (18 October 2012)

In the recent decision of Aitken & Ors v The State of Victoria – Department of Education & Early Childhood Development, the Victorian Civil & Administrative Tribunal rejected a claim of direct discrimination made by parents of children at Victorian State primary schools against the Department of Education & Early Childhood Development in relation to its Special Religious Instruction (SRI) program.

MichelleBennett18 October 2012Discrimination & Equality

Drawing the line between freedom of expression and hate speech

Lund v Boissoin, 2012 ABCA 300 (17 October 2012)

The Court of Appeal of Alberta distinguished between prohibited "hate speech" and speech that may be hurtful and offensive but which is protected by the freedom of expression in its recent decision of Lund v Boissoin, 2012 ABCA 300.

MichelleBennett17 October 2012Democratic Freedoms

Malaysia High Court denies request to declare Sharia law prohibiting cross-dressing unconstitutional

Summary On 11 October the secular High Court in Seremban, Negeri Sembilan state, in Malaysia rejected a request to declare unconstitutional a Sharia law that prohibits “wearing women’s attire” or “posing as a woman” in that State. The four applicants are Muslim transgender women who have all been arrested under this law and contend that it violates their fundamental rights enshrined in the Malaysian Constitution, namely the prohibition of discrimination based on gender, freedom of expression, freedom of movement, and the rights to live with dignity, privacy, and to livelihood.

MichelleBennett11 October 2012Democratic Freedoms, LGBTI Rights, Privacy

Degrading and inhumane treatment resulting from discrimination because of detainee’s sexual orientation

X v Turkey [2012] ECHR 24626 (9 October 2012)

MichelleBennett10 October 2012Discrimination & Equality, LGBTI Rights, Prisoner Rights

State responsibility for a suicide in custody

Coselav v Turkey [2012] ECHR 1789 (9 October 2012)

On 16 December 2005, 16 year old Bilal Çoşelav committed suicide whilst in the custody of Turkish authorities, by hanging himself using a bed sheet and the bars in his jail cell. In recent finding, handed down on 9 October 2012, the European Court of Human Rights unanimously decided that the Turkish government had breached article 2 of the European Convention on Human Rights, relevantly by failing to protect Bilal’s right to life and to carry out an effective investigation in relation to his death

MichelleBennett10 October 2012Prisoner Rights, Disability & Mental Health

Protection from arbitrary eviction for 700 families removed from council buildings

Schubart Park Residents’ Association and Others v City of Tshwane Metropolitan Municipality and Another [2012] ZACC 26 (9 October 2012)

The protection against arbitrary eviction under section 26(3) of the South African Constitution provides that a person cannot be evicted from their home without an order of court made after considering all the relevant circumstances. In a unanimous judgment, the Constitutional Court held that the High Court’s order dismissing an application by residents for immediate re-occupation of their homes after their emergency removal was not a justified order for the purposes of section 26(3). The Constitutional Court set aside the High Court’s orders and ordered that the residents were entitled to occupation of their homes as soon as reasonably possible.

MichelleBennett9 October 2012Housing

High Court considers an adverse security assessment by ASIO

Plaintiff M47/2012 v Director-General of Security & Ors [2012] HCA 46 (5 October 2012)

In this case the full bench of the High Court of Australia considered the lawfulness of the indefinite detention of the plaintiff, a refugee who has been held in detention in Australia without a visa for three years. He had been assessed as a refugee but his application for a visa had been denied on the basis of an adverse security assessment conducted by the Australian Security and Intelligence Organisation.

MichelleBennett6 October 2012Refugee & Asylum Seeker Rights

Enforcing the right to freedom of speech

Print Media South Africa and Another v Minister of Home Affairs and Another (CCT 113/11) [2012] ZACC 22 (28 September 2012)

The South African Constitutional Court has enforced the constitutional right to freedom of expression in the recent decision of Print Media South Africa and Another v Minister of Home Affairs and Another. The Court found that recently amended provisions of the Films and Publications Act (No 65 of 1996) infringed the right to freedom of expression found in section 16 of the South African Constitution.

MichelleBennett29 September 2012Democratic Freedoms

ACT Tribunal considers human rights interpretation

Allatt & ACT Government Health Directorate (Administrative Review) [2012] ACAT 67 (28 September 2012)

In this case, the ACT Civil and Administrative Tribunal reviewed decisions made by the ACT Health Directorate refusing applications for access to documents under the Freedom of Information Act 1989 (ACT) and granted the applicant access to the relevant information on the basis that it was not “sensitive information” and not subject to FOI Act exemptions. The Tribunal provided a noteworthy detailed consideration of the methodology of interpretation under the Human Rights Act 2004 (ACT).

MichelleBennett28 September 2012Privacy, Disability & Mental Health

Failure to consider mental health in detention decision

EH, R (on the application of) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) (27 September 2012)

The UK High Court has recently considered the lawfulness of the detention of a mentally ill person.

MichelleBennett28 September 2012Disability & Mental Health

Police surveillance of protesters not an invasion of privacy

Caripis v Victoria Police (Health and Privacy) [2012] VCAT 1472 (27 September 2012)

The Victorian Civil and Administrative Tribunal has ruled that a protestor’s right to privacy was not violated by the Victoria Police’s retention of photographs and video footage taken during a protest. The Tribunal accepted that the records were still needed by Victoria Police for legitimate purposes including planning and briefing for further protests and therefore their retention did not violate Victorian privacy laws.

MichelleBennett28 September 2012Privacy, Democratic Freedoms, Police

European Court considers the state's duty to investigate deaths and discrimination

Fedorchenko and Lozenko v Ukraine [2012] ECHR 1721 (20 September 2012)

In this decision, the European Court of Human Rights considered the procedural obligations of the right to life. It held that States have a duty to conduct an independent and effective investigation into all deaths, and in particular deaths associated with State agents

MichelleBennett21 September 2012Discrimination & Equality

European Court rules on the importance of proportionality and personal circumstances in eviction cases

Buckland v United Kingdom [2012] ECHR 1710 (18 September 2012)

The European Court of Human Rights has held that a UK Court of Appeal decision to uphold a possession order against an applicant constituted an unjustified breach of the applicant’s right to respect for her home in violation of article 8 of the European Convention on Human Rights which concerns the right to respect for private and family life. The European Court awarded damages and costs to the applicant, ordering the UK Government to reimburse the applicant if a costs order made against her in the UK Court of Appeal is enforced.

MichelleBennett19 September 2012Housing