Updates on Human Rights Law in the Commonwealth

Through our litigation, training programmes and publishing we work with international lawyers, judges and other non-governmental organisations (NGOs) to provide better legal protection for victims of human rights violations worldwide.

As part of this commitment, INTERIGHTS' also provides legal advice and assistance directly to lawyers and other NGOs, for strengthening legal protection for victims of human rights violations across the Commonwealth.

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Latest Case Round-Up from Common Law Jurisdictions: November 2004 A monthly round up of recent significant human rights decisions from common law jurisdictions. Last updated 1 December 2004.

AUSTRALIA

SZAOG v Minister for Immigration and Multicultural Affairs [2004] FCAFC 316
Federal Court, 26 November 2004:
REFUGEES; CONSCIENCE
Conscientious objection to military service must have a political or religious basis for claimant to come within scope of Refugee Convention.
Full text at http://www.austlii.edu.au/au/cases/cth/FCAFC/2004/316.html

CANADA

Auton (Guardian ad litem of) v British Columbia (Attorney General) [2004] SCC 78
Supreme Court, 19 November 2004:
EQUALITY; DISABILITY; MENTAL HEALTH;CHILDREN
Failure to fund therapy treatment for autistic children did not amount to discrimination nor breach their right to life, liberty and security.
Full text at http://www.canlii.org/ca/cas/scc/2004/2004scc78.html

Haïda Nation v British Columbia (Minister of Forests); Taku River Tlingit First Nation v British Columbia (Project Assessment Director)[2004] SCC 73; [2004] SCC 74 Supreme Court, 18 November 2004:
INDIGENOUS PEOPLE; PARTICIPATION; LAND RIGHTS
State under a duty to consult and accommodate indigenous people prior to making decisions that might adversely effect their as yet unproven rights and title claims. Whilst this duty does not extend to and cannot be delegated to third parties, such as private business, this does not amount to an abrogation of the latter's potential liability to indigenous people.
Full text at http://www.canlii.org/ca/cas/scc/2004 /2004scc73.html

and http://www.canlii.org/ca/cas/scc/2004 /2004scc74.html

NEW ZEALAND

Ahmed Zaoui v The Attorney General & Ors SC CIV 13/2004 Supreme Court, 25 November 2004: LIBERTY & SECURITY; REFUGEES
Refugee detained under security legislation entitled under the common law to be granted bail in accordance with Refugee Convention pending determination of security certificate.
Full text at http://www.justice.govt.nz/judgments/

Hemmes v Young CA 33/04 Court of Appeal, 26 November 2004:
CHILDREN; ADOPTION; RIGHT TO INFORMATION; EQUALITY
Whilst adopted children do not yet possess a universally recognised right to know their biological parents (although the trend is in this direction) they should not be prevented from bringing proceedings against a third party to establish that they are their parents; legislative scheme regulating paternity declarations should not discriminate against adopted children. Full text at http://www.justice.govt.nz/judgments/

SOUTH AFRICA

Rail Commuters Action Group & Ors v Transnet Ltd t/a Metrorail CCT 56/03 Constitutional Court, 26 November 2004:
LIFE; LIBERTY & SECURITY
State under a positive duty to take reasonable steps to provide for the security of rail commuters. Full text at

http://www.concourt.gov.za/summary.php?case_id=12840

UNITED KINGDOM

Three Rivers District Council & Ors v Bank of England [2004] UKHL 48 House of Lords, 11 November 2004:
DISCLOSURE
Legal advice privilege should be given a wide scope to include not only legal rights and obligations but also presentational' assistance in putting relevant factual material before a judicial inquiry in an orderly and attractive fashion; in cases of doubt an objective test should be applied as to whether the advice relates to the "rights, liabilities, obligations or remedies of the client either under private law or under public law".
Full text at http://www.bailii.org/uk/cases/UKHL/2004/48.html

Al Fayed & Ors v Metropolitan Police Commissioner [2004] EWCA Civ 1579 Court of Appeal, 25 November 2004:
LIBERTY & SECURITY
Claim for wrongful arrest and false imprisonment dismissed following compliance of police with both Wednesbury reasonableness and ECHR principles for arresting and detention of suspects for questioning.

Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2004/1579.html

Nilsen v HM Prison Full Sutton & Anor [2004] EWCA Civ 1540 Court of Appeal, 17 November 2004:
PRISONERS; EXPRESSION
Preventing serial killer serving life imprisonment from publishing his autobiography was justified as being necessary in a democratic society in accordance with Article 10(2) of the ECHR. Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2004/1540.html

The Refugee Legal Centre, R (on the application of) v Secretary of State for the Home Department [2004] EWCA Civ 1481 Court of Appeal, 12 November 2004:
REFUGEES; FAIR HEARING
Fast track system of asylum adjudication at detention centre was not inherently unfair provided it operated a flexible timetabling of decision-making.
Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2004/1481.html

Kent Pharmaceuticals Ltd, R (on the application of) v Serious Fraud Office & Ors [2004] EWCA Civ 1494 Court of Appeal, 11 November 2004:
DISCLOSURE
Disclosure by Serious Fraud Office to Department of Health of certain documents seized from pharmaceutical company was in compliance with the law as required by Article 8(2) of the ECHR. Full text at

http://www.bailii.org/ew/cases/EWCA/Civ/2004/1494.html

Greene v Associated Newspapers Ltd [2004] EWCA Civ 1462 Court of Appeal, 5 November 2004:
EXPRESSION; PRIVACY
Principles governing prior restraint in defamation cases; freedom of the press to report in public interest outweighed claimant's reputation rights under Article 8 of the ECHR where no direct matters of privacy or confidentiality are raised. Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2004/1462.html

L (China) v Secretary of State for the Home Department [2004] EWCA Civ 1441 Court of Appeal, 3 November 2004:
REFUGEES; RELIGION
Tribunal erred in dismissing refugee application by Falun Gung member when it failed to appreciate that she would continue her activities upon return to China; insufficient evidence to demonstrate that Falun Gung amounts to a religion for the purposes of the Refugee Convention.

Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2004/1441.html

Bennett v A & Anor, Officers & Ors [2004] EWCA Civ 1439 Court of Appeal, 2 November 2004: LIFE; LIBERTY & SECURITY; ACCESS TO JUSTICE
Police officers entitled to anonymity when giving evidence to inquest where they had genuine fears for their safety which outweighed interests of victim's family. Full text at http://www.bailii.org/ew/cases/EWCA/Civ/2004/1439.html

UNITED STATES

Smith v Texas 543 US (2004) Supreme Court, 15 November 2004:
DEATH PENALTY
In directing the jury to give effect to mitigation evidence in determining sentence, a judge should not at the same time state that it is only on condition that they give negative instead of positive responses to whether the act was deliberate and whether the accused would be a danger to society in the future. Full text at http://www.supremecourtus.gov/opinions/04slipopinion.html