Court of Appeal examines Charter impact on statutory interpretation and the exercise of judicial discretion

Nigro v Secretary to the Department of Justice [2013] VSCA 213 (16 August 2013)

The Victorian Court of Appeal has considered the effect of the Charter of Human Rights and Responsibilities Act 2006 (Vic) on statutory interpretation in the course of interpreting statutory provisions governing the making of supervision orders for serious sex offenders. In the context of an ambiguity in a provision and two open constructions that were consistent with the provision's text and purpose, the Court applied the principle of legality and section 32 of the Charter to adopt the interpretation more compatible with an offender's rights to freedom and autonomy.

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MichelleBennettHuman Rights Law & Institutions
Protection claims and evidence of the risk of persecution for homosexuality

M.I. v Sweden, UN Doc CCPR/C/108/D/2149/2012 (14 August 2013)

The United Nations Human Rights Committee found that the deportation of M.I., a Bangladesh national, by Sweden to Bangladesh would constitute a violation of article 7 of the International Covenant on Civil and Political Rights because of the risk to M.I. of torture and other cruel, inhumane or degrading treatment or punishment if she were returned to Bangladesh.

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MichelleBennettLGBTI Rights, Discrimination & Equality, Foreign Policy, Human Rights Law & Institutions
Canadian Court strikes down minimum education requirement in voting legislation

Taypotat v Taypotat 2013 FCA 192 (13 August 2013)

The Canadian Federal Court of Appeal determined that a minimum education requirement under voting legislation breached the Canadian Charter of Rights and Freedoms by discriminating against the elderly and aboriginal peoples.

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MichelleBennettDemocratic Freedoms, Human Rights Law & Institutions, Foreign Policy, Aboriginal & Torres Strait Islander Peoples' Rights
Tweets criticising Government employer not constitutionally protected

Banerji v Bowles [2013] FCCA 1052 (9 August 2013)

The Federal Circuit Court of Australia (Court) has left open the possibility for a public servant who criticised the government on her anonymous Twitter account to be dismissed from her employment. The Court rejected the public servant's application for an injunction preventing her dismissal from the Department of Immigration and Citizenship (the Department) and confirmed that there is no unfettered or unlimited right to political expression in Australia.

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MichelleBennettDemocratic Freedoms
Court makes Protective Costs Order to reduce barriers to public interest litigation

Bare v Small [2013] VSCA 204 (9 August 2013)

The Victorian Court of Appeal granted an application for a Protective Costs Order (PCO) brought by Mr Nassir Bare. Mr Bare had brought an appeal against the orders of Williams J in the Victorian Supreme Court and applied for a PCO to limit his liability to pay costs in the event that the appeal was unsuccessful. The Court granted an order limiting recoverable costs to $5,000, following submissions by Youthlaw that they would be able to raise this amount to support Mr Bare’s appeal.

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MichelleBennettPolice, Human Rights Law & Institutions
No defence of necessity in euthanasia cases, but clearer DPP policy required

Nicklinson, R (on the application of) v A Primary Care Trust [2013] EWCA Civ 961 (31 July 2013)

The England and Wales Court of Appeal (Court) declined to develop a defence of necessity where someone is accused of assisting suicide or murder in euthanasia cases. The Court also found that euthanasia related offences are not inconsistent with the right to private life under the European Convention on Human Rights (Convention). However, the Court built on an earlier decision requiring the Director of Public Prosecutions (DPP) to issue a policy setting out how the DPP will decide whether to prosecute a person for these offences, by finding that the consequences of these acts should be reasonably foreseeable to a person considering whether to assist suicide or euthanise.

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MichelleBennettHealth, Human Rights Law & Institutions
What degree of complicity in international crimes will lead to a person’s exclusion from refugee status?

Ezokola v Canada (Citizenship and Immigration) 2013 SCC 40 (19 July 2013)

The Supreme Court of Canada unanimously held that to lawfully exclude a person from the definition of refugee because of their membership of a group suspected of war crimes, crimes against humanity or other international crimes, there must be serious reasons for considering that the person has made a “voluntary, knowing, and significant contribution” to the group’s crime or criminal purpose.

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MichelleBennettRefugee & Asylum Seeker Rights, Foreign Policy
Exclusion of pregnant students from schools undermines fundamental rights

Head of Department, Department of Education, Free State Province v Welkom High School and Another Case (CCT 103/12) [2013] ZACC 25 (10 July 2013)

The Constitutional Court of South Africa has ruled that school pregnancy policies that allow the automatic exclusion of pregnant students, violate students' constitutional rights to equality and a basic education and were not in the best interests of the students. The Court ordered that the policies be reviewed.

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MichelleBennettForeign Policy, Women’s Rights
Priests denied the right to form a trade union

Sindacutul 'Pastorul Cel Bun' v. Romania [2013] ECHR 64, (9 July 2013)

The European Court of Human Rights has ruled that preventing priests from forming a trade union in order to protect the autonomy of the Romanian Orthodox Church (Church) is consistent with the European Convention on Human Rights. Although the refusal to allow the priests to form a trade union was an interference with their freedom of association, it was considered to be necessary in a democratic society for the preservation of religious autonomy.

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MichelleBennettForeign Policy, Democratic Freedoms
European Court of Human Rights finds Lithuanian conjugal visit laws for persons on remand discriminatory

Varnas v Luthania, [2013] ECHR, Application no 42615/06 (9 July 2013)

The European Court of Human Rights held that Lithuanian laws concerning the rights of persons on remand to receive conjugal visits were discriminatory when compared to the same right of convicted persons serving a custodial sentence. The Court therefore found a violation of article 14 (prohibition on discrimination), in conjunction with article 8 (right to family life), of the European Convention of Human Rights.

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MichelleBennettPrisoner Rights, Discrimination & Equality, Foreign Policy
Smoke-free hospital policy upheld by the New Zealand High Court

B v Waitemata District Health Board [2013] NZHC 1702 (8 July 2013)

Three applicants challenged a Waitemata District Health Board policy to prohibit smoking in its hospitals and surrounding grounds (Policy). The applicants argued that the Policy was inconsistent with the Board’s controlling legislation and the New Zealand Bill of Rights Act 1990 (Bill of Rights).  

The New Zealand High Court dismissed the applicants’ claims, finding that the Board was lawfully exercising its powers consistent with its statutory framework. His Honour Justice Asher found no rights were limited by the Policy; however, he concluded that even if there were, these limitations would be justified in accordance with the Bill of Rights.

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MichelleBennettHealth
US Supreme Court finds exclusion of same-sex marriage unconstitutional

United States v Windsor, No. 12-307 (US Supreme Court, 26 June 2013

The Supreme Court of the United States has found the Defense of Marriage Act (DOMA), which defined “marriage” and “spouse” as excluding same-sex partners, unconstitutional. The Court held DOMA to be a deprivation of the equal liberty of persons, which is protected by the Fifth Amendment to the United States Constitution.

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MichelleBennettLGBTI Rights, Discrimination & Equality, Foreign Policy
Palm Island alcohol restrictions are “special measures”

Maloney v The Queen [2013] HCA 28 (19 June 2013)

The High Court has provided insight into the scope and operation of “special measures” under the Racial Discrimination Act 1975 (Cth) (RDA), holding that laws and regulations restricting the possession of alcohol on Palm Island were for the benefit of Aboriginal peoples. Contrary to statements of leading UN bodies such as the Committee on the Elimination of Racial Discrimination (UN Committee) and the UN Expert Mechanism on the Rights of Indigenous Peoples, the Court has found that special measures do not require either consultation with or the informed consent of an affected community.

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MichelleBennettHealth, Aboriginal & Torres Strait Islander Peoples' Rights
UK Supreme Court upholds legislative limitations on the right to a fair trial

Bank Mellat v Her Majesty's Treasury (No 1) [2013] UKSC 38 (19 June 2013)

A narrow majority of the UK Supreme Court has ruled that it is entitled to consider "closed materials", being materials only available to one party to a proceeding, in certain cases arising under the Counter-Terrorism Act 2008 (Act). The court, in coming to its decision, sought to balance the principles of open justice and a person's right to a fair trial with considerations of national security.

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MichelleBennettHuman Rights Law & Institutions, Counter-terrorism
State responsibility under European Convention extends to soldiers serving overseas

Smith v The Ministry of Defence [2013] UKSC 41 (19 June 2013)

The UK Supreme Court has held that British servicemen who died during service in Iraq were within the jurisdiction of the UK for the purposes of article 1 of the European Convention on Human Rights. Claims that the UK breached article 2 of the Convention by failing to implement a framework for protecting the lives of those servicemen were therefore not struck out by the Court. The Court, instead, required further facts to be examined and saved a determination on the issue for a later date.

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MichelleBennettHuman Rights Law & Institutions, Foreign Policy
Failure to take reasonable steps to promote representative jury a breach of the right to a fair hearing

R v Kokopenace, 2013 ONCA 389 (14 June 2013) (Ontario Court of Appeal)

The Ontario Court of Appeal has held that the government of Ontario's failure to take adequate steps to promote the inclusion of Aboriginal on-reserve residents in a pool of potential jurors amounted to a violation of the right to a representative jury owed to a defendant in a criminal trial, a right protected by the Canadian Charter of Rights and Freedoms. 

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MichelleBennettHuman Rights Law & Institutions, Aboriginal & Torres Strait Islander Peoples' Rights
High Court finds orders in excess of jurisdiction are valid until set aside

State of NSW v Kable [2013] HCA 26 (5 June 2013)

The High Court has found that the State had detained Mr Kable with lawful authority, notwithstanding that the source of that lawful authority was subsequently struck down on constitutional grounds. As a result Mr Kable had no remedy in tort for unlawful detention, despite his detention subsequently being held to be unlawful.

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MichelleBennettHuman Rights Law & Institutions, Prisoner Rights
Security concerns don’t trump basic procedural rights

ZZ v Secretary of State for the Home Department [2013] EUECJ C-300/11 (04 June 2013)

The Court of Justice of the European Communities (EU Court of Justice) has held that a person refused entry to an EU state on security grounds has a fundamental right to receive reasons for the decision. Notwithstanding security considerations, EU states have a core minimum obligation to provide enough information to enable the affected person to understand the basis of the decision and prepare a defence.  

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MichelleBennettHuman Rights Law & Institutions
Right not to have home or privacy unlawfully or arbitrarily interfered with is not part of tribunal jurisdiction in eviction proceedings

Commissioner for Social Housing in the ACT & Massey (Residential Tenancies) [2013] ACAT 41 (4 June 2013)

The ACT Civil and Administrative Tribunal (ACAT) has held that, when determining an application for termination of a public housing tenancy, ACAT’s jurisdiction to consider the human rights compliance of the public landlord is limited to ACAT’s exercise of discretion under the Residential Tenancies Act 1997 (ACT) (RT Act).

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MichelleBennettHousing
Court overturns male‒female binary understanding of sex, recognises sex may be non-specific

Norrie v NSW Registrar of Births, Deaths and Marriages [2013] NSWCA 145 (31 May 2013)

The NSW Court of Appeal has recognised that “sex” can mean more than male and female, allowing for the legal recognition of individuals who identify as neither. Asked to interpret the word “sex” in the Births, Deaths and Marriages Registration Act 1995 (NSW), the Court overturned a decision of the Administrative Decisions Tribunal Appeals Panel ruling that, contrary to the Appeals Panel decision, it was open to the Registrar to register as person’s sex as “non-specific”.

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MichelleBennettDiscrimination & Equality, LGBTI Rights
Human rights and gender equality and the limits of customary law on traditional polygamous marriages

Mayelane v Ngwenyama (CCT 57/12) [2013] ZACC 14 (30 May 2013)

The Constitutional Court of South Africa has ruled that, in polygynous marriages (polygamy in which a man has more than one wife) under customary law, the first wife’s permission must be obtained before a second marriage can be entered into. The court drew on the Constitutional requirement that customary law be developed in line with Constitutional principles. As failure to obtain the first wife’s consent would breach the Constitutional principles of equality and inherent dignity of the person, such a requirement could legitimately be imposed upon customary law in South Africa.

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MichelleBennettHuman Rights Law & Institutions, Foreign Policy
Failure to protect against domestic violence amounts to gender-based discrimination and torture under European Convention

Eremia v Republic of Moldova [2013] ECHR, Application no. 3564/11 (28 May 2013)

The Republic of Moldova’s failure to adequately protect a woman and her two daughters from her husband’s violent attacks amounted to a breach of the European Convention on Human Rights. The European Court of Human Rights found Moldova’s inaction amounted to a violation of articles 3 (Torture and inhuman treatment), 8 (Private Life) and 14 (Discrimination).

The case is an important development in the ways in which human rights can be used to tackle systemic issues of gender-based violence and gender discrimination.

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MichelleBennettDiscrimination & Equality, Women’s Rights, Human Rights Law & Institutions, Foreign Policy
Working with children checks – assessing risk and balancing competing rights

ZZ v Secretary, Department of Justice [2013] VSC 267 (22 May 2013)

The Victorian Supreme Court has upheld the appeals of a man who was refused an assessment notice and an accreditation that he needed to work as a bus driver. The court found that in assessing whether the man was “a risk” to children, rather than an “unjustifiable risk”, the VCAT had misapplied the statutory test. Justice Bell also found that VCAT failed to consider, among other things, the relevance of the applicant’s right to work in weighing up whether it was in the public interest for him to be given the required clearances.

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MichelleBennettHuman Rights Law & Institutions
Extradition while application to ECHR pending does not justify stay of proceedings

Mokbel v The Queen [2013] VSCA 118 (17 May 2013)

The Victorian Court of Appeal has refused Antonios Sajih (Tony) Mokbel leave to appeal against a conviction and sentence relating to three serious drug offences. The Court upheld the decision at first instance that complaints about the conduct of Australian authorities (who accepted Mr Mokbel’s extradition whilst he had an application to the European Court of Human Rights on foot) fell far short of justifying a permanent stay of his criminal charges.

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MichelleBennettHuman Rights Law & Institutions
ECHR calls for clear regulations on assisted suicide but leaves content to the States

Gross v Switzerland [2013] ECHR, Application no. 67810/10 (14 May 2013)

The European Court of Human Rights has held that Switzerland’s failure to provide clear guidelines as to when assisted suicide is permitted breached the right to respect for private life under article 8 of the European Convention on Human Rights. The Court declined to comment as to whether Switzerland breached article 8 by failing to assist a person, who wished to die but was not suffering from a terminal illness, to end her life.

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MichelleBennettHealth, Privacy, Human Rights Law & Institutions
How absolute is your right to vote? Considering the legality of non-resident voting restrictions

 Shindler v United Kingdom [2013] ECHR, Application no. 19840/09 (7 May 2013)

The European Court of Human Rights has considered whether the United Kingdom's law denying voting rights to those non-resident citizens living overseas for 15 years or more is a contravention of article 3 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms. The Court found that the UK laws denying voting rights to persons living abroad for more than 15 years fell within the margin of appreciation afforded to States and did not violate the article 3 right to free elections.

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MichelleBennettDemocratic Freedoms
Obligation to provide personal information in “Long Form” Census not a breach of the right to privacy

Finley v The Queen, 2013 SKCA 47 (2 May 2013) (Saskatchewan Court of Appeal) 

The Court of Appeal for Saskatchewan in Canada has held that the government did not contravene the right to privacy protected under the Canadian Charter of Rights and Freedoms by requesting personal information from individuals through Census questions. A person is compelled to complete the Census, even though they are required to divulge personal information over which they could claim the right to privacy in other, non-regulatory settings.

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MichelleBennettPrivacy
Courts may stay criminal trials where absence of instructing solicitor likely to cause unfair trial

R v Chaouk [2013] VSCA 99 (2 May 2013)

The Victorian Court of Appeal has unanimously confirmed that a court can stay a criminal trial where the absence of an instructing solicitor on a day to day basis throughout the trial is likely to result in an unfair trial. The decision upholds the first instance finding by Justice Lasry in R v Chaouk [2013] VSC 48 (15 February 2013).

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MichelleBennettHuman Rights Law & Institutions
UK High Court of Justice holds 17 year olds should be treated as children in the criminal justice system

The Queen on the Application of HC (a child, by his litigation friend CC) v The Secretary of State for the Home Department and Others [2013] EWHC 982 (Admin) (25 April 2013)

In the United Kingdom, 17 year olds apprehended by police are treated as adults. The High Court of Justice has held that to treat 17 year olds as adults offends the UN Convention on the Rights of the Child, which informs the UK’s obligations under the European Convention on Human Rights and the Human Rights Act 1998 (UK). Accordingly, the UK must adapt its existing practices so that 17 year olds are treated as children. The law should promote the child’s best interests and provide special protections appropriate to their age.

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MichelleBennettChild Rights, Human Rights Law & Institutions
ATMs and other banking services must be accessible to persons with disabilities

Nyusti and Takács v Hungary, Un Doc CRPD/C/9/D/1/2010 (23 April 2013)

The UN Committee on the Rights of Persons with Disabilities (Committee) held that member states must establish minimum standards to ensure accessibility to banking services for people with disabilities in order to comply with their obligation to avoid discrimination on the basis of disability.

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MichelleBennettDisability & Mental Health, Discrimination & Equality
The Court’s parens patriae jurisdiction allows it to order the deprivation of a child’s liberty for protective purposes where statutory powers are inadequate

Re Beth [2013] VSC 189 (23 April 2013)

The Supreme Court of Victoria has held that a Court’s exercise of parens patriae jurisdiction can allow it to grant orders substantially restricting the liberty of a child where such orders are in a child’s best interests and necessary for the child’s ongoing care and protection. The Court further held that neither the statutes in issue nor the Victorian Human Rights Charter operate to exclude the exercise of parens patriae jurisdiction.

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MichelleBennettHuman Rights Law & Institutions, Child Rights
Ban on paid political advertising not a violation of the right to freedom of expression

Animal Defenders International v The United Kingdom, [2013] ECHR (Application no. 48876/08) (22 April 2013)

The Grand Chamber of the European Court of Human Rights held, by a majority of nine to eight, that the long-standing ban on paid political advertising on television and radio in the United Kingdom does not contravene the right to freedom of expression in article 10 of the European Convention on Human Rights.

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MichelleBennettDemocratic Freedoms
Human rights abuses, corporate liability and extraterritorial application of the Alien Tort Statute

Esther Kiobel, Individually and on behalf of her late husband Dr. Barinem Kiobel, et al, Petitioners. v. Royal Dutch Petroleum Co. et al., 569 US (2013) (17 April 2013) 

The United States Supreme Court has found that the Alien Tort Statute, used for decades by survivors of human rights abuses to seek redress, has no application to violations committed in other countries unless there is a strong connection with the US. The Court expanded the presumption against extraterritorial application to limit the scope of the Statute. The Justices of the Court agreed that mere presence of a corporation in the US would not of itself demonstrate a strong enough link to bring alleged extraterritorial human rights violations within the Statute’s ambit. However, the Court declined to address the broader question of corporate liability under the Alien Tort Statute.

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MichelleBennettHuman Rights Law & Institutions
Where the exercise of a right to speak freely crosses a red line

Core Issues Trust v Transport for London [2013] EWHC 651 (Admin) (22 March 2013)

The English High Court of Justice held that Transport for London's decision to prevent the Core Issues Trust from advertising a confrontational message against lesbians, gay men, bisexual and transgender individuals on London's bus network did not contravene Transport for London's duty to act compatibly with the European Convention on Human Rights.

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MichelleBennettLGBTI Rights, Discrimination & Equality, Democratic Freedoms
Police retention of personal information may breach privacy, even when information is publicly available or legally obtained

Catt v ACPO and Ors; T v Commissioner of Police of the Metropolis and Anor [2013] EWCA Civ 192 (14 March 2013)

The English Court of Appeal upheld two appeals from the Divisional Court regarding the right to respect to private life under article 8(1) of the European Convention of Human Rights and the retention of information by the police. The Court found that, even in cases where the collection of information did not breach the right to privacy or the information was publicly available, systematic collation and retention of such information may amount to an unjustifiable infringement of the right to privacy.

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MichelleBennettPolice, Privacy
Lack of access to adequate medical treatment for prisoners can be considered cruel, inhuman or degrading treatment or torture

Salakhov and Islyamova v Ukraine [2013] ECHR, Application No. 28005/08

The European Court of Human Rights has reaffirmed the principle of international human rights law that prisoners should not be subjected to hardship or constraint other than that which necessarily results from their deprivation of liberty. Prisoners must be treated with humanity and dignity, and their detention should not prevent them from accessing health care in conditions comparable to those enjoyed by patients in the outside community.

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MichelleBennettHealth, Prisoner Rights
Magistrates must inquire before imprisoning people with special circumstances for unpaid fines

Victoria Police Toll Enforcement v Taha; State of Victoria v Brookes [2013] VSCA 37

The Court of Appeal held that there is a duty on Magistrates to inquire into whether infringement offenders have disabilities such as mental illness or intellectual disability, or other special circumstances, before making an imprisonment order in respect of unpaid fines. This duty is a consequence of a proper construction of the relevant statutory provision, section 160 of the Infringements Act 2006 Vic. This construction is supported by section 32 of the Charter, as it is more compatible with the rights to equality, liberty and a fair hearing.

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MichelleBennettHuman Rights Law & Institutions
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.

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MichelleBennettHuman 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.

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MichelleBennettDemocratic 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.

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MichelleBennettChild 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.

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MichelleBennettDiscrimination & Equality, LGBTI Rights