European Court of Human Rights upholds German anti-Nazi propaganda law

Nix v Germany (European Court of Human Rights, Chamber, Application no. 35285/16, 13 March 2018)

The European Court of Human Rights has rejected an appeal brought by a German citizen who claimed his right to freedom of expression had been impermissibly burdened. The applicant had published an image of Nazi-era SS chief Heinrich Himmler in SS uniform wearing a swastika armband on his personal blog. He was convicted by a German court under a law which prohibited the use of propaganda material of unconstitutional organisations, including the Nazis.

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HRLC AdminDemocratic Freedoms
Ahead of abortion referendum, Irish Supreme Court finds only right unborn children enjoy is right to life

M v Minister for Justice and Equality [2018] IESC 14

The Supreme Court of Ireland has held that unborn children have no rights under the Irish Constitution beyond the right to life. The decision is significant in light of the upcoming "abortion referendum" as it confirms that only Article 40.3.3 of the Constitution needs to be changed in order to legalise abortion in Ireland.

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HRLC Admin
Federal Court orders Australian Government to remove refugee children from Nauru to receive appropriate mental health treatment

FRX17 as litigation representative for FRM17 v Minister for Immigration and Border Protection [2018] FCA 63 (9 February 2018)

AYX18 v Minister for Home Affairs [2018] FCA 283 (6 March 2018)

In two recent interlocutory matters, the Federal Court has ordered the Australian Government to remove refugee children from Nauru to Australia in order to receive appropriate mental health treatment.

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HRLC AdminRefugee & Asylum Seeker Rights
English family wins privacy case against TV channel which broadcast eviction against their wishes

Ali & Aslam v Channel 5 Broadcast Limited [2018] EWHC 298 (CH)

The English High Court has found an episode of a documentary-reality series broadcast by Channel 5, in which a family was shown being evicted from their home, breached the family’s right to privacy under article 8 of the European Convention on Human Rights.  This right was held to take precedence over Channel 5’s freedom of expression.

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HRLC AdminDemocratic Freedoms
UK Supreme Court rules that police violated victims’ rights by failing to properly investigate sexual assaults

Commissioner of Police of the Metropolis v DSD and Another [2018] UKSC 11 (21 February 2018)

The United Kingdom Supreme Court has awarded damages to two victims of crime who brought proceedings against the Metropolitan Police Service for substantial failures to conduct an effective investigation into a number of sexual assaults. The decision aligns with a consistent line of authorities from the European Court of Human Rights regarding the nature and scope of the State's duty under article 3 of the European Convention for the Protection of Human Rights.  

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HRLC Admin
Protecting the right of journalists to cover demonstrations: a win for journalistic information gathering in Europe

Butkevich v Russia (European Court of Human Rights, Chamber, Application No. 5865/07, 13 February 2018)

The European Court of Human Rights unanimously held that journalistic newsgathering during a public demonstration is a protected aspect of press freedom under article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Any attempt to remove journalists from a scene of demonstration must thus be subject to “strict scrutiny”.

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HRLC AdminDemocratic Freedoms
New Zealand High Court finds insulting cartoons did not breach hate speech legislation

Wall v Fairfax New Zealand Limited [2018] NZHC 104

The New Zealand High Court held that two cartoons published in New Zealand newspapers featuring negative depictions of Māori and Pasifika did not breach hate speech provisions in the Human Rights Act 1993 (NZ). The Court balanced the publisher’s right to freedom of speech under the New Zealand Bill of Rights Act 1990 (NZ) against the government’s interest in protecting individuals from harmful speech and discrimination.

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HRLC AdminDemocratic Freedoms, Aboriginal & Torres Strait Islander Peoples' Rights
UK Court of Appeal finds metadata retention regime inconsistent with EU law

Secretary of State for the Home Department v Watson [2018] EWCA Civ 70

The United Kingdom Court of Appeal has decided that aspects of the Data Retention and Investigatory Powers Act 2014, which has now been repealed, were unlawful.  The Court found that allowing public bodies access to the phone records and internet activity of individuals in the United Kingdom, in circumstances where there is an absence of suspicion of serious crime and independent sign off allowing access, is illegal.   

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HRLC AdminDemocratic Freedoms
European Court of Justice finds asylum seeker may not be subjected to a psychological test to determine sexual orientation

F v Bevándorlási és Állampolgársági Hivatal (Court of Justice of the European Union, C473/16, 28 January 2018)

The Court of Justice of the European Union has held that subjecting an asylum seeker to psychological tests, designed to provide an indication of their sexual orientation, breaches their right to respect for private and family life under Article 7 of the EU Charter of Fundamental Rights.

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HRLC AdminLGBTI Rights, Refugee & Asylum Seeker Rights, Privacy
Swiss NGO sued for labelling politician's speech "racism" denied freedom of expression, European Court of Human Rights finds

GRA Stiftung gegen Rassismus und Antisemitismus v. Switzerland (application no. 18597/13) [2018] ECHR

The European Court of Human Rights unanimously held that the prosecution of a Swiss non-governmental organisation which had labelled a Swiss politician's speech as "verbal racism" breached the organisation's right to freedom of expression, as protected by Article 10 of the European Convention of Human Rights.

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HRLC AdminDemocratic Freedoms
European Court of Human Rights rules against public servant disclosing state documents

Catalan v Romania (Application No. 13003/04) [2018] ECHR (9 January 2018)

The European Court of Human Rights ruled that the Romanian Government’s decision to dismiss a member of the public service for the unauthorised disclosure of state documents obtained outside his employment to a tabloid newspaper was a legitimate restriction of freedom of expression under Article 10 of the European Convention of Human Rights. In doing so, the Court emphasised the particular obligation of loyalty held by public servants and the need to prevent disclosure of confidential information and protect the rights of others.

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HRLC AdminDemocratic Freedoms
Victorian Supreme Court accepts vaccination of children can be ordered, even against parents’ wishes

ZD v Secretary to the Department of Health and Human Services [2017] VSC 806 (22 December 2017)

The Supreme Court of Victoria held that the Children's Court Magistrate had the power to authorise the vaccination of three young children as a condition of interim accommodation orders under the Children Youth and Families Act 2005, contrary to the wishes of both parents. Justice Osborn held that s 263(7) of the CYFA is only capable of one interpretation and therefore the rights under the Charter of Human Rights and Responsibilities Act 2006 (VIC) were not relevant to the construction of the subsection.

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HRLC AdminChild Rights
New Zealand court finds risk of indefinite detention is a "compelling or extraordinary circumstance" in decision whether to extradite accused people smuggler to Australia

Maythem Kamil Radhi (Appellant) v The District Court of Manukau (The First Respondent) and The Commonwealth of Australia (The Second Respondent) [2017] NZSC 198

The Australian Federal Police sought the extradition of a New Zealand resident, alleging that he was involved in helping asylum seekers travel from Indonesia to Australia. The New Zealand Supreme Court found that although the man was eligible for surrender, there was a "real risk" that he would be subjected to indefinite administrative detention once in Australia and that this risk constituted a compelling or extraordinary circumstance warranting referral to the Minister.

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HRLC AdminRefugee & Asylum Seeker Rights
Nauru abolishes appeals to Australian High Court after series of asylum seeker decisions

BRF038 v The Republic of Nauru [2017] HCA 56; HFM045 v The Republic of Nauru [2017] HCA 50; DWN042 v The Republic of Nauru [2017] HCA 56

The Nauruan Government recently abolished the mechanism by which parties could appeal decisions from the Supreme Court of Nauru to the High Court of Australia, leaving asylum seekers without an avenue of appeal to challenge unsuccessful decisions of the Supreme Court. This move has come shortly after the High Court's recent landmark decision in BRF038 v The Republic of Nauru [2017] HCA 56 where it held that, in certain circumstances, appeals from the Supreme Court to the High Court lie as of right, without the parties first having to seek leave of the Court.

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HRLC AdminRefugee & Asylum Seeker Rights, Democratic Freedoms
Victorian Charter case finds human rights violated when prison prevented delivery of a book

Minogue v Dougherty [2017] VSC 724

The Victorian Supreme Court has found that a prisoner’s rights to privacy and freedom of expression under the Charter of Human Rights and Responsibilities Act 2006 (Vic) were violated when a book of philosophy addressed to him was returned to its sender, while dismissing other human rights claims about receiving and sending mail, and accessing photocopying services. While Justice John Dixon found that the plaintiff’s Charter rights were breached when the mail officer failed to turn her mind to his rights, he did not award damages as the plaintiff’s case had not made out a substantive breach of rights

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HRLC AdminPrisoner Rights
Family Court of Australia clears the way for young trans people to access hormone treatment without court authorisation

Re Kelvin [2017] FamCA 78

The Full Family Court of Australia has held that Stage 2 hormone treatment for transgender young people does not require the court’s authorisation. Court intervention will remain necessary where there is controversy or disagreement between parents or between treating doctors and parents.

Until this case, it is understood that Australia was the only jurisdiction in the world to require transgender young people to seek court authorisation to access treatment. This has drawn criticism from doctors, parents and advocates for unnecessarily increasing mental health risks for transgender young people.

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HRLC AdminLGBTI Rights
The Inter-American Court of Human Rights calls for the recognition and protection of LGBTI rights

Inter-American Court of Human Rights OC-24/17 of 24 November 2017 – Gender identity, equality and non-discrimination of same-sex couples

The Inter-American Court of Human Rights has recognised the obligation of all member States to ensure same-sex marriages are protected by law and treated equally to heterosexual marriages. The Court also called for member States to put in place an administrative procedure to allow a person to easily change their registered personal information to correspond with their own self-perceived gender identity.

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HRLC AdminLGBTI Rights, Human Rights Law & Institutions
Eritrean refugees one step closer to trial in a Canadian court case alleging serious human rights abuses

Araya v Nevsun Resources Ltd., 2017 BCCA 401

A group of Eritrean refugees are one step closer to trial in a Canadian court case alleging serious human rights abuses against a Canadian mining company, after the British Columbia Court of Appeal dismissed a strike-out application. The decision is the first time that a Canadian appellate court has allowed a tort claim for breaches of international law peremptory norms – such as the prohibition of slavery – to proceed.

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MichelleBennettRefugee & Asylum Seeker Rights
European Court of Human Rights rules Russia’s ‘gay propaganda laws’ are discriminatory and breach free speech

Bayev and Others v. Russia (application nos. 67667/09, 44092/12 and 56717/12) [2017] ECHR

On 20 June 2017, the European Court of Human Rights ruled that Russia's so-called "gay propaganda" laws breached Articles 10 (freedom of expression) and 14 (prohibition of discrimination) of the European Convention of Human Rights. The challenge was brought by three Russian nationals who are gay rights activists and were fined for allegedly promoting homosexuality while demonstrating in public places.

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HRLC AdminLGBTI Rights, Foreign Policy
High Court of England and Wales dismisses a defamation claim brought by a Governor following sexual harassment claims

Kofoworola Adeolu David v Zara Hosany [2017] EWHC 2787 (QB)

In a high-profile decision of the High Court (Queen’s Bench Division), Judge Moloney QC dismissed a libel action brought by Mr David, a Governor of a UK public authority, against another Governor, Ms Hosany. The allegedly defamatory material included allegations of sexual harassment.

The Court upheld the principle that complaints, properly made and without malice, are protected from defamation actions (the common law defence of qualified privilege). The exception to the privilege borne from article 8 of the European Convention of Human Rights (ECHR) and section 6 (1) of the Human Rights Act 1998, being a person’s right to respect for “private and family life, home and correspondence”, did not apply as the complaints were made in a private capacity. The judgment provides necessary encouragement to people to report incidences of sexual harassment in the workplace.

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Case Notes UK Court or TribunalGuest UserWomen’s Rights
Australian High Court finds 5 parliamentarians incapable of being elected on the basis of foreign citizenships

Re Roberts [2017] HCA 39 (22 September 2017), Re Canavan; Re Ludlam; Re Waters; Re Roberts [No 2]; Re Joyce; Re Nash; Re Xenophon [2017] HCA 45 (27 October 2017) and Re Barrow [2017] HCA 47 (7 November 2017)

In three related decisions, the Australian High Court has for the first time ruled on several key aspects of section 44(i) of the Australian Constitution, relating to foreign citizenship for elected members of Parliament. The Court held that four Senators (Ludlam, Waters, Roberts and Nash), and one member of the House of Representatives (Joyce), were incapable of being elected to the Parliament because they were citizens of a foreign power.  The Court also held that two other Senators whose election had been referred to the Court (Canavan and Xenophon) were validly elected and capable of sitting in the Parliament.

It is expected that the election of a number of further members of Parliament may be referred to the Court shortly for consideration.

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HRLC AdminOther
European Court of Human Rights tips the balance in favour of privacy over freedom of expression on social media

Einarsson v. Iceland (Application no. 24703/15) [2017] ECHR 7 November 2017

The European Court of Human Rights has overturned a decision of the Iceland Supreme Court and upheld a well-known commentator’s right to respect for his private life under Article 8 of the European Convention on Human Rights, over an individual’s right to exercise freedom of expression under Article 10 in the context of an Instagram post accusing him of rape.

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HRLC AdminDemocratic Freedoms, Privacy
South African High Court finds corporal punishment of children unconstitutional

YG v S (A263/2016) [2017] ZAGPJHC 290; 2018 (1) SACR 64 (GJ) (19 October 2017)

The South African High Court has ruled the common law defence of reasonable or moderate chastisement is no longer applicable at common law in South Africa. The landmark judgement found no justification for permitting the use of corporal punishment against a child which would otherwise constitute assault but for the invocation of the defence.

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HRLC AdminChild Rights
European Court of Human Rights upholds the right to freedom of expression on the Internet

Tamiz v the United Kingdom (Application no. 3877/14) [2017] ECHR (12 October 2017)

The European Court of Human Rights has reinforced the importance of the freedom of expression in the European Convention on Human Rights in the context of online forums. The Court found that the English courts had conducted “an appropriate balancing exercise” when determining that ‘vulgar’ comments posted on a blog operated by Google Inc. did not pose enough of a risk to the applicant’s reputation (Article 8) to warrant restricting the freedom of expression of Google Inc. and its users (Article 10).

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HRLC AdminDemocratic Freedoms, Foreign Policy, Human Rights Law & Institutions
German Constitutional Court requires positive recognition of people with intersex variations in the birth register

Bundesverfassungsgericht [German Constitutional Court], 1 BvR 2019/16, 10 October 2017

The German Federal Constitutional Court has ruled that the existing law dictating binary gender options in the birth registry is unconstitutional. The Court found that sections of the Civil Status Act that forced people to nominate as either "male", "female" or without a gender were a violation of the Basic Law for the Federal Republic of Germany, specifically the general right to personality and the protection against discrimination based on sex. 

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HRLC AdminLGBTI Rights
UK High Court rejects challenge to prohibition on assisted dying

R (on the application of Noel Conway) v The Secretary of State for Justice [2017] EWHC 2447 (Admin) (5 October 2017)

The UK High Court has rejected the latest legal challenge to the prohibition on assisted dying, holding that the prohibition represents a necessary and proportionate interference with the applicant’s right to private life. The Court placed reliance upon the fact that Parliament had repeatedly decided to leave the prohibition in place, providing a timely reminder of the crucial role of Parliament in promoting a person’s right to die with dignity in the context of the assisted dying laws currently being debated in Victorian Parliament.

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HRLC AdminHealth
High Court of Australia finds marriage law postal survey is lawfully funded

Wilkie & Ors v The Commonwealth & Ors; Australian Marriage Equality Ltd & Anor v Minister for Finance & Anor [2017] HCA 40 (M105/M106 of 2017)

In M105/M106, the High Court dismissed two legal challenges to the Government's plan to carry out a voluntary postal survey on whether the law should be changed to allow same-sex couples to marry. The plaintiffs challenged the survey on the basis that it was not lawfully funded.

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HRLC AdminLGBTI Rights
High Court of Australia affirms narrower interpretation of “intention” to cause harm under complementary protection regime

SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34

The High Court has held that in order for an applicant to be covered by the Migration Act’s complementary protection regime, the element of “intention” requires a person’s actual, subjective intention to bring about pain, suffering or extreme humiliation. 

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HRLC AdminRefugee & Asylum Seeker Rights
UN finds that Australia breaches right to equality in same-sex divorce

United Nations Human Rights Committee – Views adopted by the Committee under article 5(4) of the Optional Protocol (CCPR/C/119/D/2216/2012)

The UN Human Rights Committee has held that Australia violated the International Covenant on Civil and Political Rights by failing to provide access to divorce proceedings for same-sex couples married overseas. The Committee reasoned that the differential treatment of same-sex couples as compared with overseas polygamous and adolescent marriages (between persons aged from 16 to 18 years) constituted discrimination under article 26 of the Covenant.

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HRLC AdminLGBTI Rights, United Nations
The Charlie Gard case: UK High Court rules against experimental medical treatment for a terminally ill child

Great Ormond Street Hospital v Yates [2017] EWHC 1909 (Fam) (24 July 2017)

In a high-profile dispute between the parents of a terminally ill child and doctors at the Great Ormond Street Hospital over the child’s course of treatment, the UK High Court found that the best interests of the child require that he not be given experimental medical treatment and instead be taken off life support.

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HRLC AdminHealth, Child Rights
European Court of Human Rights finds hate speech not protected by freedom of expression

Belkacem v Belgium (2017) ECHR 253

The European Court of Human Rights has found that a conviction for the incitement of hatred, violence and discrimination for under Belgian law did not breach a far right Muslim activist's right to freedom of expression, as protected by Article 10 of the European Convention of Human Rights. 

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HRLC AdminDemocratic Freedoms, Human Rights Law & Institutions
UK High Court finds that arms trade to Saudi Arabia can continue

R (on the application of Campaign Against Arms Trade) v The Secretary of State for International Trade and Intervenors [2017] EWHC 1726 (QB)

The English & Wales High Court has found that the UK's Secretary of State decision not to suspend a licence to export arms to the Kingdom of Saudi Arabia was valid. The Campaign Against Arms Trade and a number of intervenors unsuccessfully argued that the export licence should be suspended on the basis that there was a clear risk that the arms could be used in the commission of serious violations of international humanitarian law.

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HRLC AdminForeign Policy
US Supreme Court temporarily reinstates President Trump's travel ban for immigrants with no bona fide connection to the United States

Trump v International Refugee Assistance Project, 137 S.Ct 2080 (26 June 2017)

On 26 June 2017 the Supreme Court of the United States temporarily reinstated President Trump's travel ban, but a majority of the Court held that the temporary reinstatement will not apply to people who can show they have a credible claim of a bona fide relationship with a person or organisation already in the United States.

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HRLC AdminForeign Policy, Refugee & Asylum Seeker Rights
UK Supreme Court challenges ‘deport now, appeal later’ immigration policy

R (on the application of Kiarie) (Appellant) v Secretary of State for the Home Department (Respondent); R (on the application of Byndloss) (Appellant) v Secretary of State for the Home Department (Respondent) [2017] UKSC 42

The UK Supreme Court has unanimously held that deportation certificates issued by the United Kingdom’s Secretary of State for the Home Department were unlawful. The recipients of the deportation orders in this case were entitled to appeal against the Home Secretary’s immigration decisions by a judicial review procedure to the First-tier Tribunal (Immigration and Asylum Chamber). However, the effect of the deportation orders was that the appeals could only be brought after the appellants’ removal from the UK.  This is known as the ‘deport first, appeal later’ policy. The Court found that difficulties with evidence and legal representation meant these appeals were not sufficiently effective.

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HRLC AdminRefugee & Asylum Seeker Rights, Democratic Freedoms
UK Supreme Court finds that refusing free abortion services to women travelling from Northern Ireland to England is lawful

R (on the application of A and B) v Secretary of State for Health [2017] UKSC 41

A slim majority of the UK Supreme Court has upheld the UK Secretary of State for Health’s decision not to provide free of charge abortion services to women travelling from Northern Ireland to England. The court found that the Secretary was entitled to consider the Northern Ireland Assembly’s decision not to provide abortions and the devolved government model for providing health services. Further, that treating UK citizens who usually reside in Northern Ireland differently was justified in the circumstances.

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HRLC Admin
US Supreme Court confirms equal gender protection in immigration law but plaintiff deported as less favourable test followed

Sessions v Morales-Santana, 582 U.S Supreme Court (12 June 2017)

The US Supreme Court has held that different citizenship rules for children of unmarried mothers and fathers unlawfully infringes the Fifth Amendment’s guarantee of equal gender protection. However, the Court determined that the less favourable test should be followed, resulting in the respondent's deportation from the United States.

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HRLC AdminDiscrimination & Equality, LGBTI Rights
Victorian Supreme Court finds establishment of youth justice centre at Barwon adult prison contrary to human rights and unlawful

Certain Children by their litigation guardian Sister Marie Brigid Arthur v Minister for Families and Children & Ors [2017] VSC 251 (11 May 2017)

The Victorian Supreme Court has found for the third time that the Victorian government acted unlawfully with children's human rights and best interests in breach of the Charter of Human Rights and Responsibilities Act 2006 by establishing the Grevillea unit at Barwon prison as a youth justice centre and remand centre, transferring children to the Grevillea unit and using OC spray and extendable batons on children.

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HRLC AdminPrisoner Rights, Child Rights