New South Wales Court of Appeal - Decisions of Interest Search - Area of law: Human rights
Human rights: Housing Benefit Regulations 2006, reg B13 imposes a cap on housing benefit payments in cases of deemed under-occupation of social sector housing commonly known as ‘bedroom tax’; impact on individuals living with disabilities and their familiies and carers and those living in accomodation provided to women at severe risk domestic violence; applicants contend there has been a violation of their rights under the European Convention on Human Rights article 14 and article 8 and/or article 1 of the First Protocol; test for discrimination; test is whether discriminatory treatment is manifestly without reasonable foundation; role of the state in protecting victims of domestic violence
Claimants either had disabilities, lived with dependent family members with disabilities, or lived in sanctuary scheme’ homes (accomodation for women who are at severe risk of domestic violence). Claimaints argued that by virtue of their circumstances they required additional space and therefore the regulation discriminated against them.Court findings: The majority upheld the appeal of one claimant, a woman unable to share a bedroom with her husband because of her disabilities, and dismissed all other claims. In dissent, Lady Hale upheld the claim of a woman living in sanctuary scheme accomodation on the basis that the state has a positive duty to protect victims of domestic violence and public authorities should take the needs of victims of gender-based violence into account in developing their policies.
R (on the application of Carmichael and Rourke) v Secretary of State for Work and Pensions  UKSC 58
Human rights: appellants were migrant domestic workers who had been mistreated by employers in the UK; appellants in the UK on domestic workers’ visas, the operation of which rendered them dependent on their employers in order to live and work in the country; Employment Tribunal upheld claims for unpaid wages, unlawful deductions from wages, lack of rest periods, failure to provide written terms of employment and discrimination on the basis of appellants’ vulnerable migrant status; Court of Appeal allowed appeal in relation to discrimination claim; whether discrimination on grounds of immigration status amounts to discrimination on grounds of nationality under relevant UK legislation; whether discrimination “on racial grounds” or “because of” race; held the appellants were mistreated on the basis of their particular immigration status and not their nationality.
Taiwo v Olaigbe  UKSC 31
Human rights: failure to meet loan repayments on home; receivers sought possession of the property; whether court, in entertaining application for possession by private sector owner, is required to consider the proportionality of evicting occupier in light of s 6 of the Human Rights Act 1998 and article 8 of the European Convention on Human Rights (“ECHR”); article 8 does not justify a different order from that which is mandated by the contractual arrangement between the parties particularly where the relevant legislative provisions balance the competing interests of private sector landlords and residential tenants; ECHR is not directly enforceable as between private citizens so as to alter existing contractual rights and obligations; it not, in any case, be possible to read relevant legislation consistently with a requirement to consider proportionality; had court been required to assess proportionality of possession order, the most the appellant could have hoped for would be an order postponing the effect of the possession order for the maximum time permitted by the Housing Act 1980.
McDonald v McDonald  UKSC 28
Human rights: application to maintain interim injunction restraining publication by newspaper of details of appellant’s sexual relationship; appellant alleged that publication would breach his rights to privacy and confidentiality under article 8 of the European Convention on Human Rights; balancing of rights under Article 8 with right to freedom of expression under Article 10; details of relationship published in print in the United States and Canada; whether, because information in the public domain, the appellant was unlikely to obtain a permanent injunction at trial; s 12 of the Human Rights Act 1998 does not preference either Article 8 or 10 over the other; no public interest in the disclosure of story; publication contrary to interests of appellant’s children in breach of requirement to show exceptional public interest for intrusion in Editor’s Code of Practice; injunction only available remedy; on balance, appellant likely to establish at trial that proposed publication constitutes serious breach of right to privacy; interim injunction maintained.
PJS v News Group Newspapers Ltd  UKSC 26
Human rights: discrimination; homosexual vilification; two public acts; verbal conduct and later physical assault several days apart; whether ordinary member of the class to whom the later public act is directed assumed to have knowledge of the earlier public act; whether such an assumption required as a matter of law by ss 49ZS and 49ZT of the Anti-Discrimination Act 1977 (NSW)
Margan v Manias  NSWCA 388
Human rights: European Convention on Human Rights, arts 3, 8; Human Rights Act 1998 (UK), s 6; solitary confinement; segregation; right to respect for private life; prohibition against torture, inhuman and degrading treatment; appellant convicted of racially-aggravated abduction and murder of child; appellant removed from association with other prisoners for his own protection; appellant remained in segregation for 56 months; Prisons and Young Offenders Institution (Scotland) Rules 1994, rule 94 permits Governor to segregate prisoners for up to 72 hours; segregation beyond 72 hours must be authorised by Scottish Ministers prior to expiry of 72 hours; Ministers granted extension of segregation after expiry of 72 hours on three occasions; whether late extensions valid; late extensions not permitted under rule 94(6); late extensions invalid; whether conditions of segregation in breach of ECHR, art 3; duration undesirable; appellant did not suffer severe or permanent injury to health; segregation not in violation of art 3; whether interference with right to respect for private life under ECHR art 8(1) legitimate; segregation in pursuit of legitimate aim; Ministers failed to exercise discretion on occasion; length of segregation not proportionate to risk of harm to appellant; right under art 8 breached; appeal allowed
Shahid v Scottish Ministers (Scotland)  UKSC 58
Human rights: First Protocol to the European Convention on Human Rights, art 2; European Convention on Human Rights, art 14; right to education; discrimination linked to national origin; appellant a 20 year old from Zambia; appellant arrived in the UK in 2001 at age six; appellant and appellant’s mother overstayed visas and were unlawfully present in the UK until 2012; appellant entirely educated in UK and wishes to study at university; appellant ineligible for student loans based on immigration status; whether eligibility requirements disproportionately interfere with right to access education; whether loan program discriminates unjustifiably on the basis of national origin; denial of student loans has very severe impact upon those it affects; means chosen to pursue legitimate aim of distributing scarce resources not rationally connected to it; denying higher education to individuals with established private lives in UK harmful to community; appellant’s rights breached under article 14 of the ECHR and article 2 of the first protocol to the ECHR; appeal allowed
14 R (on the application of Tigere) v Secretary of State for Business, Innovation and Skills  UKSC 57
Human rights: Quebec Charter of Human Rights and Freedoms ss 4, 10 and 12; right to equality; discrimination on basis of national or ethnic origin; respondent operates pilot training centres for US and Canadian pilot licence holders; plaintiff Canadian citizen born in Pakistan and holds US and Canadian pilot licences; plaintiff’s attempted registration for pilot training in Dallas denied by US authorities after security clearance check; plaintiff’s attempts to register in Canada denied by respondent on basis of US security checks; whether plaintiff denied right to avail himself of services ordinarily offered to the public; whether right to safeguard his dignity and reputation without discrimination based on ethnic or national origin infringed; whether prima facie discrimination proven on balance of probabilities; requirement for connection between discriminatory decision and plaintiff’s ethnic or national origin; respondent’s decision based on US authorities; no evidence adduced to show US authorities acted on discriminatory basis; Tribunal’s decision therefore without basis; appeal dismissed
Quebec (Commission des droits de la personne et des droits de la jeunesse) v Bombardier Inc (Bombardier Aerospace Training Center)  SCC 39
Human rights: asylum seekers; immigration; UN Convention on the Rights of the Child; three unaccompanied underage Afghan nationals claimed asylum on basis of persecution by the Taliban; Minister under an obligation to trace members of minors’ families; whether Minister’s failure to comply with tracing duty prevented discovery of evidence relevant to asylum applications; purpose of tracing not to gather evidence; purpose of tracing to reunite families; failure to discharge tracing duty not a basis for allowing appeal
TN and MA (Afghanistan) v Secretary of State for the Home Department  UKSC 40
Human rights: European Convention on Human Rights art 14; Protocol No 1 to European Convention on Human Rights art 1; Human Rights Act 1998 s 6; prohibition of discrimination; sex discrimination; right of women to peaceful enjoyment of possessions; whether welfare benefits “possessions”; welfare cap limits benefits to not exceed average weekly earnings of UK working households; cap has greater detrimental effect on women than men; whether cap a proportionate means of meeting legitimate aims; whether means ‘manifestly without reasonable foundation’; questions of proportionality require consideration of social and economic policy; policy decisions of parliament should be respected by the Court; whether United Nations Convention on the Rights of the Child applies to executive decisions when not ratified; Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; 128 ALR 353 considered; UNCRC does not apply; appeal dismissed
SG & Ors, R v Secretary of State for Work and Pensions  UKSC 16