Failure to provide minimum standard of maternity leave unlawful

Elisabeth de Blok et al. v. the Netherlands Communication No. 36/2012, UN Doc CEDAW/C/57/D/36/2012 (17 February 2014)

The UN Committee on the Elimination of Discrimination against Women found that the Netherlands’ temporary failure to provide an adequate maternity leave scheme between 2004 and 2008 involved a breach of its obligations under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). 

The case raises interesting questions about the minimum standard of maternity leave required at international law; the ability of a state to meet its human rights obligations through the private sector; and the relationship between maternity leave and gender discrimination laws.

Read More
MichelleBennettDiscrimination & Equality
Use of pepper spray and restraints on a prisoner amounts to inhuman and degrading treatment

Tali v Estonia (European Court of Human Rights, Chamber, Application No 66393/10, 13 February 2014)

The European Court of Human Rights has held that the use of restraints and pepper spray on a prisoner in Estonia amounted to inhuman and degrading treatment, in violation of the European Convention on Human Rights. Pepper spray should never be used in confined spaces or against prisoners who have already been brought under control. Restraints can only be justified to avoid self harm or serious danger to other individuals or prison security.

Read More
MichelleBennettPrisoner Rights
Failure to adequately investigate claim of excessive police force a violation of ECHR

Gramada v Romania (European Court of Human Rights, Chamber, Application No 1497/09, 11 February 2014)

The European Court of Human Rights has found that the failure by Romanian authorities to adequately investigate whether a police officer who shot Mr Gramada in the thigh had used excessive force was violation of the prohibition on torture, inhuman or degrading treatment (article 3, European Convention on Human Rights).

The Romanian authorities and courts had concluded that the police officer was justified in using force in the circumstances, even though his actions were disproportionate to the threat he faced, because he thought he was being threatened by armed men, and was scared and confused. However, the ECtHR noted that this conclusion was based on acceptance of the police officer’s testimony despite its inconsistency with other evidence, and highlighted serious flaws in the investigation, including the failure to obtain a ballistics report, and the failure to reconstruct the events on-site, which was normally standard procedure in these kind of cases. In these circumstances, the criminal investigation that had been conducted did not provide sufficient redress for the violation of Mr Gramada’s rights under article 3. 

Read More
MichelleBennettPolice, Human Rights Law & Institutions
Failure to protect from sexual abuse constitutes violation of freedom from inhuman and degrading treatment

O'Keeffe v Ireland (European Court of Human Rights, Grand Chamber, Application No 35810/09, 28 January 2014) 

The Grand Chamber of the European Court of Human Rights found that the State of Ireland failed in its obligation to protect the applicant from sexual abuse she suffered as a child in an Irish National School and therefore violated her rights under article 3 (prohibition of inhuman and degrading treatment) and article 13 (right to an effective remedy) of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention). This case is not concerned with the responsibility of the perpetrator, but rather with the responsibility of the State, and whether the State ought to have been aware of the risk of sexual abuse of minors in Irish National Schools at the relevant time and whether adequate legislative protection was in place.

Read More
MichelleBennettChild Rights, Human Rights Law & Institutions
Bail conditions in Victoria must comply with human rights

Woods v DPP [2014] VSC 1 (17 January 2014)

The Supreme Court of Victoria has made its first decision on the 2013 amendments to the Bail Act 1977 (Vic) regarding conditions of bail. The Court held that it is necessary to pay careful attention to proposed bail conditions when determining whether bail should be granted and that conditions must be formulated to meet the individual circumstances of the case taking into account the applicant’s human rights.

Read More
MichelleBennettDemocratic Freedoms, Prisoner Rights
UK High Court allows proceedings against Google for privacy breaches

Vidal-Hall & Ors v Google Inc [2014] EWHC 13 (QB) (16 January 2014)

The High Court of Justice has allowed a group of claimants to issue legal proceedings in the UK against US-based Google Inc in regards to the tracking and collation of information about their internet usage. Justice Tugendhat held that the UK courts had jurisdiction to hear the claims and that there is a tort of “misuse of private information”. 

Read More
MichelleBennettPrivacy
Aboriginal customary adoptions given the same legal status as legal adoptions in Canada

Beattie v Aboriginal Affairs and Northern Development Canada [2014] CHRT 1 (10 January 2014)

The Canadian Human Rights Tribunal has held that in determining lineage for Indian status entitlements, customary adoptions should be recognised. In coming to this conclusion, the Tribunal provided much needed guidance on what amounts to a “service” under anti-discrimination law, reversing its previous views that registration of status was not a service.

Read More
MichelleBennettDiscrimination & Equality, Aboriginal & Torres Strait Islander Peoples' Rights
Mandatory imposition of father’s surname on children of married parents is discriminatory

Cusan and Fazzo v. Italy [2014] ECHR (7 January 2014)

The European Court of Human Rights found that the official practice of automatically giving a child his/her father’s surname, even when the parents have agreed to give their child its mother’s surname, is a form of sex-based discrimination that is incompatible with the European Convention of Human Rights.

Read More
MichelleBennettDiscrimination & Equality
Legal restrictions breach sex worker safety rights

Canada (Attorney General) v Bedford [2013] 3 SCR 1101 (20 December 2013)

Summary

The Supreme Court of Canada has held that criminalisation of certain activities relating to prostitution breach the right to security under section 7 of the Canadian Charter of Rights and Freedoms. The Court found that the impugned laws imposed dangerous conditions on what is otherwise a legal activity, that of selling sex.

Read More
MichelleBennettWomen’s Rights
High Court of Australia recognises constitutional power to legislate with respect to same-sex marriage

The Commonwealth v Australian Capital Territory [2013] HCA 55

The High Court of Australia has held that a law recognising same-sex marriage in the Australian Capital Territory was inconsistent with Commonwealth legislation and therefore was invalid. The High Court also stated unanimously that the Commonwealth has the power to legislate with respect to marriage equality pursuant to s 51(xxi) of the Constitution (the marriage power).

Read More
MichelleBennettDiscrimination & Equality, LGBTI Rights
Prison terms reduced for members of “Criminal Motorcycle Gang” due to “extremely harsh” detention policies

Callanan v Attendee X [2013] QSC 340, Callanan v Attendee Y [2013] QSC 341, Callanan v Attendee Z [2013] QSC 342 (12 December 2013)

The Supreme Court of Queensland recently gave reduced sentences to three accused members of Queensland Criminal Motorcycle Gangs (CMGs) due to a detention policy the Court considered to be “extremely harsh”.

Read More
MichelleBennettPrisoner Rights
Excluding same-sex couple from hotel constitutes unlawful discrimination

Bull (And Another) v Hall (And Another) [2013] UKSC 73 (27 November 2013)

The Supreme Court in the United Kingdom recently upheld a ruling by the Court of Appeal that hotel owners Peter and Hazelmary Bull, a Christian couple, discriminated against homosexual couple Martin Hall and Stephen Preddy on the grounds of sexual orientation, when they refused to rent them a double room in their hotel.

Read More
MichelleBennettDiscrimination & Equality, Democratic Freedoms, LGBTI Rights
Hair and facial hair grooming policies do not interfere with freedom of expression

Kuyken v Lay (Human Rights) [2013] VCAT 1972 (29 November 2013)

The Victorian Civil and Administrative Tribunal has dismissed the claims of 16 police officers (the applicants) that they were discriminated against by the introduction, promulgation and enforcement of a new policy which banned male officers from having long hair or facial hair (other than a moustache). VCAT found that the applicants had been directly discriminated against in the enforcement of the policy, by the threat of disciplinary action, and through an email implying the applicants were unprofessional and not trustworthy. However, that discrimination was not found to be unlawful as it was considered to be authorised by the Police Regulation Act 1958 (Vic) (PR Act). A victimisation claim was also dismissed, as was the applicants’ claims that the respondent had failed to properly consider their right to freedom of expression in the Charter of Human Rights and Responsibilities 2006 (Vic).

Read More
MichelleBennettDemocratic Freedoms, Human Rights Law & Institutions, Discrimination & Equality
South African Police required to investigate crimes against humanity committed in Zimbabwe

National Commissioner of the South Africa Police Service and Another v Southern Africa Litigation Centre and Another (485/2012) [2013] ZASCA 168 (27 November 2013)

The South African Supreme Court of Appeal (SCA) held that, in terms of the Implementation of the Rome Statute of the International Criminal Court Act 22 of 2002 (ICC Act), the South African Police Service (SAPS) is competent and required to investigate acts of torture that constitute a crime against humanity, committed in Zimbabwe by Zimbabweans.

Read More
MichelleBennettPolice, Human Rights Law & Institutions
21 day cell confinement amounts to failure to treat prisoner with humanity and respect for inherent dignity

Vogel v Attorney General & Ors CA 171/2012 [2013] NZCA 545 (7 November 2013)

The New Zealand Court of Appeal has found that sentencing a prisoner to 21 days cell confinement can amount to a breach of the obligation to treat detained persons with humanity and respect for their inherent dignity. The content of the obligation is to be determined not only through international jurisprudence, but by the statutory standards and domestic values and practices in New Zealand. It is not only the potential breach of such standards, but the effect that the confinement would have on the particular individual that must be considered when sentencing them to a period of cell confinement.

Read More
MichelleBennettPrisoner Rights, Human Rights Law & Institutions
Greece’s exclusion of same-sex couples from civil unions breaches prohibition of discrimination and right to privacy and family life

Vallianatos v Greece [2013] ECHR, Applications nos. 29381/09 and 32684/09 (7 November 2013)

Greece introduced ‘civil unions’ as an official form of partnership other than marriage for different-sex couples only. The applicants challenged the civil union law on the basis that it breached the prohibition on discrimination on the basis of sexual orientation and the right to respect for privacy and family life under the European Convention on Human Rights (Convention). The European Court of Human Rights (ECtHR) held that the law’s differential treatment of same-sex couples was not proportionate to the aims of protecting marriage and the family “in the traditional sense”. The law therefore breached Article 8 in conjunction with Article 14 of the Convention.

Read More
MichelleBennettDiscrimination & Equality, LGBTI Rights, Human Rights Law & Institutions
Non-reviewable immigration detention on secret grounds is “arbitrary” in breach of ICCPR

Al-Gertani v Bosnia and Herzegovina, Human Rights Committee, Communication No. 1955/2010 (6 November 2013) 

An Iraqi asylum-seeker was detained in Bosnia and Herzegovina on the grounds that he was a threat to national security. The United Nations Human Rights Committee found that his prolonged detention was arbitrary in breach of article 9 of the International Covenant on Civil and Political Rights, because the State party did not show it was necessary and proportionate, and because he was not provided with the reasons that he was considered a threat and was therefore unable to effectively challenge the detention.

Read More
MichelleBennettRefugee & Asylum Seeker Rights, Prisoner Rights, Foreign Policy
Nudity is a form of expression, but the right to nudity is subject to limitations

Gough v Director of Public Prosecutions [2013] EWHC 3267(Admin) (31 October 2013)

The High Court of England and Wales has recognised public nudity as form of expression but held that limiting such expression is valid in the public interest. While the Court agreed that public nudity engages Article 10 of the European Convention on Human Rights (ECHR) being the right to freedom of expression, the court upheld the primary judge's conclusion that there was a pressing social need for the restriction of his right to be naked in the context of this case.

Read More
MichelleBennettDemocratic Freedoms, Human Rights Law & Institutions
ACT Supreme Court clarifies the principles applicable to the determination of 'unreasonable delay'

R v Adam Tony Forsyth [2013] ACTSC 179 (31 October 2013)

The Supreme Court of the Australian Capital Territory has refused to grant a stay of proceedings to an accused facing prosecution, on the basis that, while the accused suffered unreasonable delay in having the matter brought to trial, the prosecution had not acted unlawfully in continuing to pursue the case.

The decision also makes clear that it is not necessary for a party to demonstrate that they suffered prejudice in order to establish that there has been an unreasonable delay in bringing them to trial. Rather, this will be a factor relevant to the determination of an appropriate remedy.

Read More
MichelleBennettHuman Rights Law & Institutions
VCAT finds breach of the Charter in recent discrimination case

Slattery v Manningham City Council (Human Rights) [2013] VCAT 1869 (30 October 2013)

The Victorian Civil and Administrative Tribunal (VCAT) found that a Council directly discriminated against a resident in the area of goods and services on the grounds of disability contrary to the Equal Opportunity Act 2010 (the EOA). In doing so the VCAT found that the exceptions under the EOA of statutory authority and health and safety were not made out. Further the VCAT found that the Council’s actions had breached the Charter of Human Rights and Responsibilities Act 2006 (the Charter). The Applicant was represented by Victoria Legal Aid’s Equality Law Program.

Read More
MichelleBennettDiscrimination & Equality, Disability & Mental Health
Prisoners entitled to have their date of release determined by the law in force at the time of sentencing

Del Rio Prada v Spain [2013] ECHR 307, Application no. 42750/09 (21 October 2013)

The Grand Chamber of the European Court of Human Rights held that the extension of the final release date of a person convicted of terrorist offences, on the basis of a new approach adopted by the Supreme Court of Spain after she had been sentenced, amounted to punishment without legal basis (article 7) and a violation of her right to liberty (article 5).

Read More
MichelleBennettCounter-terrorism
Open justice may prevail over the best interests of a child and the right to privacy and family

R (On the application of Stephen Fagan) v Secretary of State for Justice and Times Newspapers Ltd & Ors [2013] EWCA Civ 1275 (21 October 2013)

The UK Court of Appeal has held that potential breaches to the right to family and privacy are not necessarily sufficient to justify a derogation from the principle of open justice in the courts. Depending on the circumstances of the case, the principle of open justice may prevail even where it is against the best interests of a child.

Read More
MichelleBennettChild Rights, Privacy, Prisoner Rights
UK Supreme Court leaves decision on prisoner voting rights to parliament

R (on the application of Chester) v Secretary of State for Justice [2013] UKSC 63 (16 October 2013)

Two prisoners serving life sentences for murder claimed that their rights had been infringed by reason of their prohibition from voting in elections. The United Kingdom Supreme Court unanimously dismissed both appeals.

Read More
MichelleBennettPrisoner Rights, Democratic Freedoms, Human Rights Law & Institutions
DNA collection a legitimate interference with privacy rights

R (on the application of R) v A Chief Constable [2013] EWHC 2864 (Admin) (24 September 2013)

The UK High Court of Justice held that the power to demand a non-intimate sample from an individual previously convicted of serious offences without that individual’s consent was a proportionate interference with the right of respect for that person’s private life.

Read More
MichelleBennettPrivacy, Human Rights Law & Institutions
The right to life and the requirement to properly investigate death

Antoniou, R (on the application of) v Central and North West London NHS Foundation Trust & Ors [2013] EWHC 3055 (Admin) (10 October 2013)

This decision of the England and Wales High Court (Administrative Court) considered the scope of a State's procedural obligation to investigate a detained patient’s death, derived from article 2 (right to life) of the European Convention for the Protection of Rights and Fundamental Freedoms.

Read More
MichelleBennettDisability & Mental Health, Human Rights Law & Institutions
The UK Court of Appeal considers the relevance of article 8 of the ECHR to the statutory power to deport foreign criminals

MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192 (8 October 2013)

The United Kingdom Court of Appeal held that paragraphs 398, 399 and 399A of the Immigration Rules (UK) provide a complete code for establishing when a “foreign criminal” may be deported from the UK in compliance with the right to respect for private and family life under the European Convention on Human Rights.

Read More
MichelleBennettPrivacy, Prisoner Rights, Human Rights Law & Institutions, Foreign Policy
Criminalising consensual sex between young people breaches their rights to privacy and dignity

Teddy Bear Clinic for Abused Children v Minister for Justice and Constitutional Development [2013] ZACC 35 (3 October 2013)

The Constitutional Court of South Africa has found that laws criminalising consensual sex between young people are unconstitutional. The Court held the laws unjustifiably violate the dignity and privacy of young people and are not in the best interests of the child.

Read More
MichelleBennettPrivacy, Child Rights
Aboriginality, disadvantage and sentencing

Bugmy v The Queen [2013] HCA 27 (2 October 2013)

After considering the impact of Aboriginality on sentencing for the first time in 30 years, the High Court found that the fact that Aboriginal Australians “as a group are subject to social and economic disadvantage measured across a range of indices” says “nothing about a particular Aboriginal offender” but held that a background of social deprivation remains a relevant consideration for repeat offenders.

Read More
MichelleBennettPrisoner Rights, Aboriginal & Torres Strait Islander Peoples' Rights
South Africa to review absolute confidentiality of asylum applications after decision on freedom of expression

Mail and Guardian Media Limited and Others v Chipu N.O. and Others Case CCT 136/12 - [2013] ZACC 32 (27 September 2013)

The Constitutional Court of South Africa has upheld a challenge to the constitutionality of section 21(5) of the Refugees Act, which provides for the absolute confidentiality of asylum applications in South Africa. The Court declared that the absolute confidentiality of asylum applications was an unjustifiable limitation on the constitutional right to freedom of expression and gave Parliament two years to remedy the defect in the legislation. In the interim, the Refugee Appeal Board (RAB) has been given a discretion to allow third parties access to hearings in particular circumstances.

Read More
MichelleBennettRefugee & Asylum Seeker Rights, Privacy
Amendments to the Canadian Mental Health Act found not to breach the right to liberty and security of the person

Thompson and Empowerment Council v Ontario, 2013 ONSC 5392 (12 September 2013)

The Ontario Superior Court of Justice has ruled that legislation introducing a community treatment order regime and expanding the circumstances in which a person with a mental illness can be involuntarily detained, submitted to a psychiatric assessment and admitted to a psychiatric facility, do not breach the Canadian Charter of Human Rights and Freedoms.

Read More
MichelleBennettDisability & Mental Health
Smoking bans can breach human rights

CM, Re Judicial Review [2013] ScotCS CSOH_143 (27 August 2013)

This case concerns the judicial review of a smoking ban imposed at the State Hospital of Scotland. Relying on articles 1, 8 and 14 of the European Convention on Human Rights, the Court concluded that it was unlawful to prevent a person detained at the Hospital (a psychiatric patient) from smoking outside in the grounds of the Hospital.

Read More
MichelleBennettDisability & Mental Health, Human Rights Law & Institutions
Australia’s indefinite, non-reviewable detention of refugees on security grounds violates international law

F.K.A.G. et al. v Australia, UN Doc CCPR/C/108/D/2094/2011 (23 August 2013)

The UN Human Rights Committee found that Australia violated articles 7 and 9(1), (2) and (4) of the International Covenant on Civil and Political Rights by indefinitely detaining refugees subject to adverse security assessments without adequate reasons, review rights or individualised consideration of less intrusive options.

Read More
MichelleBennettRefugee & Asylum Seeker Rights
Lawsuit for unconstitutional sex assignment surgery to proceed in US federal court

M.C. v Aaronson [2013] (22 August 2013)

The United States District Court for the District of South Carolina Charleston Division has held that a sex assignment surgery on a child with an intersex condition which removed the child’s ability to procreate may have violated the constitutional right to procreation. The defendants’ motions to dismiss the case were denied and the plaintiff’s motion for expedited discovery was granted. This case has not yet proceeded to summary judgment.

Read More
MichelleBennettChild Rights, Health
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.

Read More
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.

Read More
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.

Read More
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.

Read More
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.

Read More
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.

Read More
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.

Read More
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.

Read More
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.

Read More
MichelleBennettForeign Policy, Democratic Freedoms