Roach v Australian Electoral Commissioner and the CommonwealthOn 26 September 2007, the High Court published reasons for its orders of 30 August 2007 in the matter of Roach v Australian Electoral Commissioner and the Commonwealth which invalidated amendments to the Electoral Act made in 2006.  The amendments operated such that all prisoners serving a full-time sentence of detention were not entitled to vote at federal elections. By a 4-2 majority, the Court held that the amendments were unconstitutional. 

Shams & Ors v Australia, HRC, UN Doc CCPR/C/90/D/1255, 1256, 1259, 1260, 1266, 1268, 1270, 1288/2004 (11 September 2007)In a decision regarding mandatory immigration detention, the UN Human Rights Committee has elucidated its jurisprudence on the content and application of art 9 of the ICCPR, the right to liberty and security of person and to be free from arbitrary detention.

Kijewska v Poland [2007] ECHR Application No 73002/01 (6 September 2007)The European Court of Human Rights has held that the right to a fair hearing subsumes a right of access to a court and that a requirement to pay substantial court fees to file or proceed with a claim may constitute a violation of that right.

Nowak v Poland [2007] ECHR 18390/02; Owczar v Poland [2007] ECHR 34117/02; Michalak v Poland [2007] ECHR 16864/02Three recent cases from the European Court of Human Rights consider the principles to be applied in determining whether continued detention is lawful.  This case note considers the potential impact of these decisions on the interpretation of ss 21(5) and (6) of the Charter of Human Rights and Responsibilities Act 2006 (Vic).

Kucheruk v Ukraine [2007] ECHR Application No 2570/04 (6 September 2007)The applicant, a man with chronic schizophrenia, was convicted of theft and hooliganism.  The Ukraine Court suspended the criminal proceedings against him committing him first for psychiatric treatment.  He was subsequently detained in the medical wing of a pre-trial detention centre for a month before being transferred to a specialised facility.  While detained, he was subjected to the practices of restraint and seclusion.

Brooke & Anor, R (on the application of) v Parole Board & Anor [2007] EWHC 2036 (7 September 2007)A recent decision of the England and Wales High Court considered whether the Parole Board had the necessary independence required by art 5(4) of the European Convention on Human Rights and may be relevant to a determination under s 24 of the Victorian Charter as to whether a court or tribunal is ‘competent, independent and impartial’.

Tomasevic v Travaglini & Anor [2007] VSC 337 (13 September 2007)In a very significant decision, the Supreme Court of Victoria has considered the relevance and application of the human rights to equality before the law, access to justice and the right to a fair hearing under the ICCPR to the right to a fair trial under Victorian law and the obligations of the court to self-represented litigants.

Dudko v Australia, HRC, UN Doc CCPR/C/90/D/1347/2005 (29 August 2007)In an important decision regarding the nature and scope of the right to equality before the courts, the UN Human Rights Committee has found Australiain violation of art 14(1) of the International Covenant on Civil and Political Rights.

Paladi v Moldova [2007] ECHR Application No 39806/05 (10 July 2007)The European Court of Human Rights has held that the medical treatment of a prisoner within a remand centre and prison hospital was inadequate and that failure to treat him as an inpatient at a hospital where he could receive the necessary neurological and hyperbaric oxygen treatment amounted to a violation of the prohibition on torture and other cruel, inhuman or degrading treatment.

Bukta v Hungary [2007] ECHR Application No 25691/04 (17 July 2007) Makhmudov v Russia [2007] ECHR Application No 35082/04 (26 July 2007)The European Court of Human Rights has considered two cases in which it held that the relevant State party had interfered with the right to freedom of peaceful assembly in art 11 of the European Convention of Human Rights.  That right is protected by s 16(1) of the Victorian Charter.  In both cases, domestic law required that the authorities be informed in advance of any planned public assembly.

JL, R (on the application of) v Secretary of State for the Home Department [2007] EWCA Civ 767 (24 July 2007)This case concerned the investigative duties imposed upon authorities by art 2 of the European Convention on Human Rights (the right to life) following the injury or death of an individual whilst in custody.  In particular, the case turned on whether an obligation to carry out an ‘enhanced investigation’ was subject to a threshold test of ‘arguability’.

Bukta v Hungary [2007] ECHR Application No 25691/04 (17 July 2007) Makhmudov v Russia [2007] ECHR Application No 35082/04 (26 July 2007)The European Court of Human Rights has considered two cases in which it held that the relevant State party had interfered with the right to freedom of peaceful assembly in art 11 of the European Convention of Human Rights.  That right is protected by s 16(1) of the Victorian Charter.  In both cases, domestic law required that the authorities be informed in advance of any planned public assembly.