Director of Housing v TK [2010] VCAT 1839 (16 November 2010)
A recent VCAT decision has shown that public housing authorities are developing a more thoughtful and engaged model of decision making that gives proper consideration to the human rights of vulnerable tenants.
Read MoreR v AM [2010] ACTSC 149 (15 November 2010)
The ACT Supreme Court recently considered to what extent freedom of conscience under the ACT Human Rights Act 2004 (‘the HR Act’) influenced the interpretation of criminal offences. An applicant sought to argue that her consciousness beliefs should provide her a defence to otherwise criminal conduct, and if not, that the Court should issue a declaration of incompatibility on the basis the relevant offence was inconsistent with the HR Act.
Read MoreDPP v Piscopo [2010] VSC 498 and DPP v Rukandin [2010] VSC 499 (12 November 2010)
The recent decisions in DPP v Piscopo [2010] VSC 498 and DPP v Rukandin [2010] VSC 499 provide further guidance concerning alcohol testing enforcement. The two separate judgements, delivered simultaneously by Kyrou J, contain identical legal reasoning dealing with ss 49(1)(e), 55(1) and 55(9A) of the Road Safety Act 1986 (Vic). The Court concluded that where police request a motorist to accompany them for the purpose of furnishing a sample of breath or blood, the motorist must be informed that they have to remain until that sample has been taken or until three hours after driving, whichever is sooner.
Read MoreDPP v Ali & Anor (No 2) [2010] VSC 503 (10 November 2010)
The Supreme Court of Victoria (Hargrave J) recently considered the operation of the Charter of Human Rights and Responsibilities Act 2006 (Vic) in relation to an application to forfeit a family home that had been used in connection with a criminal offence.
The Attorney-General and the Victorian Equal Opportunity and Human Rights Commission both intervened to make submissions on the Charter issues.
Read MoreDuring the coronial inquest into the fatal shooting of a teenager by the Victoria Police, the Victorian State Coroner considered an application by the Chief Commissioner of Police (‘CCP’) for an order prohibiting the publication of certain documents. The application was made pursuant to s 73(2)(b) of the Coroners Act 2008, which states that a coroner must order that a report about any documents, material or evidence provided to the coroner as part of an inquest not be published if the coroner reasonably believes that the publication would be contrary to 'the public interest'. In deciding whether or not to grant the application, the Coroner considered how s 73(2)(b) ought to be approached in light of the Charter of Human Rights and Responsibilities Act 2006 (Vic), in particular, the impact of the Charter in weighing up what is in the 'public interest.'
Read MoreWells v The Queen (No 2) [2010] VSCA 294 (4 November 2010)
The Court of Appeal dismissed this interlocutory criminal appeal. The applicant in part sought a permanent stay of a criminal trial on the basis that the Charter rights relating to criminal proceedings (ss 24 and 25) were breached. In dismissing the appeal, the Court of Appeal commented that it would rarely entertain Charter arguments in interlocutory appeals, due to their complexity and the prospect of causing delays in criminal trials.
Read MoreManchester City Council v Pinnock [2010] UKSC 45 (3 November 2010)
In this decision the UK Supreme Court was required to decide whether art 8 of the European Convention on Human Rights requires a court to consider the reasonableness and proportionality of applications for possession of premises under the Housing Act 1996.
Read MoreMcCallum v South Africa, UN Doc CCPR/C/100/D/1818/2008 (2 November 2010)
The Human Rights Committee has found that South Africa violated a prisoner's rights not to be tortured or treated in a cruel, inhuman or degrading manner and to be treated with humanity and respected when deprived of liberty. South Africa was also found to have violated its obligation to investigate and remedy the violation of those rights.
Read MoreBritish Columbia (Ministry of Education) v Moore, 2010 BCCA 478 (29 October 2010)
Frederick Moore filed a human rights complaint against the Board of Trustees School Division and the Ministry of Education. He alleged the Board and the Ministry had discriminated against his dyslexic son Jeffrey and other severely learning disabled (‘SLD’) students by failing to sufficiently accommodate their learning disabilities in the provision of educational services contrary to s 8(1) of the Human Rights Code, British Columbia's anti-discrimination act.
Read MoreCanberra Fathers and Children Services Inc v Michael Watson [2010] ACAT 74 (29 October 2010)
The ACT Civil and Administrative Tribunal has found that an eviction from social housing that would result in homelessness is a breach of the right to be free from unlawful or arbitrary interference with the home.
Read MoreCadder v Her Majesty's Advocate (Scotland) [2010] UKSC 43 (26 October 2010)
The United Kingdom Supreme Court has overturned convention and UK precedent by holding that admissions made by a detained suspect prior to charge, without legal representation, are incompatible with the right to a fair trial. While this decision is contrary to the previous UK position, it is consistent with the European Court of Human Rights decision in Salduz v Turkey (2009) 49 EHRR 19.
Read MoreKing v Secretary of State for Justice [2010] EWHC 2522 (Admin) (13 October 2010)
The High Court of Justice has held that disciplinary proceedings may constitute the determination of civil rights, invoking the rights under art 6(1) of the European Convention on Human Rights. The Court held that a prisoner does have a civil right to association, but that a temporary restriction on this right may not constitute an interference with the right. It also held that the lack of impartiality of an adjudicator of disciplinary proceedings did not necessarily amount to a lack of procedural fairness.
Read MoreMcDonald, R (on the application of) v Royal Borough of Kensington & Chelsea [2010] EWCA Civ 1109 (13 October 2010)
The England and Wales Court of Appeal has held that the failure to provide an elderly individual with disability with a carer to assist her to use a commode during the night, and instead requiring that the individual use incontinence pads and special sheets (in circumstances where the individual was not incontinent), did not breach the right to privacy in art 8 of the European Convention on Human Rights.
Read MoreR v NS, 2010 ONCA 670 (13 October 2010)
The Ontario Court of Appeal recently handed down a significant decision regarding the conflict between the constitutional rights of a witness in a criminal proceeding and the constitutional rights of the accused in that same proceeding. The witness, an alleged victim of sexual assault, sought to uphold her right to religious freedom by wearing her veil, or niqab, while appearing as a witness. The accused contended that his right to a fair trial required that he, his counsel and the trier of fact be able to see his accuser's face when she appeared as a witness. The judgment discussed these competing rights and how courts should go about reconciling them.
Read MoreCobaw Community Health Services Limited v Christian Youth Camps Limited & Anor [2010] VCAT 1613 (8 October 2010)
VCAT has recently ruled that a Christian adventure resort has discriminated against a gay youth suicide prevention group by denying them access to its camping facilities because of their sexual orientation.
Read MoreMXL, R (on the application of) & Ors v Secretary of State for the Home Department [2010] EWHC 2397 (Admin) (30 September 2010)
The England and Wales High Court has held that the immigration detention of a Jamaican woman with dependant children breached arts 5 and 8 of the European Convention of Human Rights on the basis that her detention affected the welfare of her children. It was further held that the decision makers’ failure to apply a relevant policy when exercising their discretion to continue the claimant’s detention, also rendered her detention unlawful.
Read MoreRoad Accident Fund and Another v Mdeyide [2010] ZACC 18 (30 September 2010)
The Constitutional Court of South Africa has held that an inflexible 3-year time limit for lodging a claim for personal injuries sustained in a transport accident is a justified limitation on the right to access courts, which is protected by s 34 of the South African Bill of Rights.
Read MoreBedford v Canada, 2010 ONSC 4264 (28 September 2010)
In September 2010, the Superior Court of Justice of Ontario (Canada) struck down ss 210, 212(1)(j) and 213(1)(c) of the Criminal Code, which criminalised certain aspects of sex work, on the basis that they violated the right to security of the person and, in the case of s 213(1)(c), the freedom of expression. According to the Court, the impugned provisions endangered the lives of sex workers and forced them to choose between their right to liberty and their right to security of the person, in violation of the Canadian Charter of Rights and Freedoms.
Read MorePebam Ningol Mikoi Devi v State of Manipur & Ors [2010] INSC 782 (27 September 2010)
The Indian Supreme Court has consider the right to liberty and safeguards against arbitrary detention, including the need for sufficient justification for any deprivation of liberty and the availability of expeditious, substantive review of the lawfulness of any such detention.
Read MoreKay & Ors v United Kingdom [2010] ECHR 1322 (21 September 2010)
This decision concerned the right to respect for home under art 8 of the European Convention of Human Rights. The European Court of Human Rights decided that the decision of the UK County Court to strike out the applicants’ art 8 defences meant that ‘procedural safeguards’ for the assessment of proportionality of the interference with the right were not observed. Accordingly, it was held that there had been a violation of art 8 of the Convention.
Read MoreAdan v Denmark, UN Doc CERD/C/77/D/43/2008 (21 September 2010)
The Petitioner, Saada Adan, filed a complaint against Denmark with the UN Committee on the Elimination of Racial Discrimination (CERD) alleging violations of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) in relation to comments made in political discussion on a radio programme by a politician, Søren Espersen.
CERD considered Denmark in breach of its obligations under the ICERD, specifically arts 2(1)(d), 4 and 6, on thebasis of failure to effectively prohibit acts of discrimination and dissemination of discriminatory ideas and a failure to provide effective protections and remedies to those aggrieved.
Read MoreSanoma Uitgevers BV v The Netherlands [2010] ECHR 1284 (14 September 2010)
Journalistic material was seized by public authorities in the course of a criminal investigation despite a confidentiality agreement between the journalists and their sources.
Article 10(2) of the European Convention of Human Rights requires that any interference with the right to freedom of expression (art 10(1)) must be ‘prescribed by law’. The European Court of Human Rights held that this requires not only that intrusions on the right to free expression be explicitly authorized by law, but that procedural safeguards – including an assessment by an impartial and independent body – also must exist. Furthermore, this assessment must take place prior to the exploitation of the material by the authorities. The Court held that the quality of the Netherlands law was deficient as no statutory provision existed for judicial review before the police or the prosecution were allowed to seize journalistic materials. The Court unanimously held that this deficiency amounted to a breach of the right to freedom of expression.
Read MoreMcFarlane v Ireland [2010] ECHR 1272 (10 September 2010)
In a decision of the Grand Chamber of the European Court of Human Rights, Ireland was held by twelve votes to five to be in breach of the right to have a hearing within a reasonable time under art 6 § 1 and the right to an effective remedy under art 13 of the European Convention of Human Rights. The Grand Chamber awarded the applicant €5,500 in non-pecuniary damages and €10,000 in costs and expenses.
Read MoreDe Simone v Bevnol Constructions and Developments Pty Ltd & Ors [2010] VSCA 231 (10 September 2010)
The Victorian Court of Appeal has declined to answer a question of law referred to it by the Victorian Civil and Administrative Tribunal under s 33(1) of the Charter on the basis that VCAT had not determined the merits of the application before it, and accordingly, the question was purely hypothetical.
Read MoreAyangma v French School Board, 2010 PECA 16 (9 September 2010)
The decision reviews the Supreme Court of Canada’s jurisprudence in regards to the violation of the human right to equality under s 15(1) of the Canadian Charter of Rights and Freedoms in an employment context. The Prince Edward Island Court of Appeal considers whether the trial judge below erred in finding that the hiring of school teachers and principals by a school board was not in violation of the appellant’s right to equality.
Read MoreBroom v Secretary of State for Justice [2010] EWHC 2695 (Admin) (03 September 2010)
The England and Wales High Court has held that the decision of a prison authority to deny a prisoner access to photographs of his children did not engage that prisoner’s right to privacy.
Read MoreMcAdam v Victoria University & Ors (Anti-Discrimination) [2010] VCAT 1429 (3 September 2010)
This decision illustrates how Charter arguments may complement complaints under the Equal Opportunity Act 1995 (Vic). It considers an application by Victoria University to strike out or dismiss a number of claims made by Ms McAdams under the EO Act and the Charter.
Read MoreVertido v The Philippines, UN Doc CEDAW/C/46/D/18/2008 (1 September 2010)
The Committee on the Elimination of Discrimination against Women has held the Philippines in violation of its obligations under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women to protect against gender-based stereotypes after a judgment issued in a rape case. The Committee found the State party did not uphold its obligation to ensure an expeditious remedy or to prevent unfair gender-based stereotypes in violation of arts 2 (c), (f) and 5 (a) of the Convention.
Read MoreAntunovic v Dawson & Anor [2010] VSC 377 (25 August 2010)
On an application for a writ of habeas corpus, Bell J of the Supreme Court of Victoria held that the provision in the Mental Health Act 1986 (Vic) for the imposition of a residence condition in a community treatment order (‘CTO’) is the only lawful means of controlling the residence of a person subject to a CTO. If this power is not exercised, there is no lawful basis for restraining the person's liberty, which includes freedom of movement. As the applicant's place of residence was being controlled without the existence of a residence condition in her CTO, Bell J ordered her immediate release.
Read MoreAdrakhim Usaev v Russian Federation, UN Doc CCPR/C/99/D/1577/2007 (20 August 2010)
The Human Rights Committee, in consideration of a communication submitted under the Optional Protocol to the International Covenant on Civil and Political Rights, ruled that a man currently imprisoned in Russia had been subjected by the law enforcement authorities to torture or cruel, inhuman and degrading treatment during interrogations and while in detention.
Read MoreOlimzhin Eshonov v Uzbekistan, UN Doc CCPR/C/99/D/1225/2003
A father of a man who died in custody submitted a complaint to the Human Rights Committee (Committee), alleging violations of his son’s rights and his own rights under arts 2, 6 and 7 of the International Covenant on Civil and Political Rights by Uzbekistan. The Committee found that Uzbekistan had breached the ICCPR, finding the son had been arbitrarily deprived of life, subject to torture or cruel, inhumane or degrading treatment and that Uzbekistan had failed to conduct an adequate and impartial investigation of the allegations.
Read MoreEvangeline Hernandez v The Philippines, UN Doc CCPR/C/99/D/1559/2007 (20 August 2010)
The Human Rights Committee has held the Philippines breached its obligations under the International Covenant on Civil and Political Rights following the arbitrary killing of a human rights activist by members of the State’s military. The Committee found that the State party failed to take effective measures both to protect the right to life and to ensure the complete and expeditious prosecution of those responsible for the killing, in violation of arts 6(1) and 2(3) of the Covenant.
Read MoreNikolaus Fürst Blücher von Wahlstatt v Czech Republic, UN Doc CCPR/C/99/D/1491/2006 (19 August 2010)
The Human Rights Committee has found that Czech land laws requiring citizenship as a necessary condition for restitution of property previously confiscated by authorities constitutes a violation of the right to equality before the law.
Read MoreAB and Victorian Equal Opportunity & Human Rights Commission and Department of Human Services and Separate Representative of J [2010] VCC AD-10-003 (6 August 2010)
A recent decision of the Victorian County Court has opened the door – albeit only slightly – for gay men and women to adopt children in Victoria. Although the decision certainly represents a positive development, it is also problematic in a number of important respects – most significantly, in its level of engagement with the Victorian Charter of Human Rights and Responsibilities Act 2006.
Read MorePerry v Schwarzenegger, Case No. C 09-2292 VRW (US District Court for the Northern District of California, 4 August 2010)
The US District Court has held that a prohibition against same-sex marriage violates the US constitutional requirements of ‘due process’ and equal ‘protection’.
Read MoreR v Cornell, 2010 SCC 31 (30 July 2010)
The Supreme Court of Canada has considered the level of inquiry and analysis required to be conducted by police when determining whether a forced entry into a premise is reasonable, consistent with the right to be secure from unreasonable search and seizure.
Read MoreValentine v Emergency Services Superannuation Board [2010] VCAT No G585/2008 (29 July 2010)
The Victorian Civil and Administrative Tribunal has held that s 32 of the Charter does not apply retrospectively to affect the interpretation of the State Superannuation Act 1988 (Vic) insofar as it governs spousal pension entitlements anytime before 1 January 2008 (when s 32 came into effect). Nonetheless, VCAT Deputy President Macnamara found that the State Superannuation Board's position did not directly or indirectly discriminate against the applicant on the basis of her marital status, such that s 8 of the Charter, providing for equality before the law, would not have been violated. However, it was suggested in relation to s 14 of the Charter, which protects the right to freedom of thought, conscience, religion and belief, that a legal interpretation which imposed a significant financial penalty on a citizen who adhered to her religious beliefs about marriage could be viewed as limiting the freedom of religion or belief in practice.
Read MoreDirector of Public Transport v XFJ [2010] VSC 319 (29 July 2010)
The Victorian Supreme Court has affirmed the importance of a broad approach to the construction of human rights in the Charter, including appropriate reliance on international human rights law and comparative jurisprudence.
Read MoreAN v Secretary of State for the Home Department [2010] EWCA Civ 869 (28 July 2010)
A recent decision before the England and Wales Court of Appeal has found that if a control order is legally flawed, or revoked by the Secretary of State, then it shall be quashed ab initio.
Read MoreQuinn v Overland [2010] FCA 799 (28 July 2010)
The Federal Court of Australia has found that there is a serious issue to be tried that s 20(3)(c) of the Public Administration Act 2004 (Vic) (‘the PA Act’) places a statutory duty on public sector employers to conform with ‘public sector employment principles’. Although not directly relevant to this case, s 8(ca) of the PA Act defines public sector employment principles to include ‘employment processes that will ensure that… human rights as set out in the Charter of Human Rights and Responsibilities are upheld’. This decision also supports the view that employment policies established for the purpose of s 8(ca) constitute statutory duties that must be upheld by public sector employers.
Read MoreFatima Andersen v Denmark, UN Doc CCPR/C/99/D/1868/2009 (26 July 2010)
The UN Human Rights Committee has held that to be a 'victim' under the International Covenant on Civil and Political Rights requires the identification of specific consequences of the conduct that forms the basis of the complaint, such consequences specifically affecting the alleged victim.
Read MoreCity of Vancouver v Ward 2010 SCC 27 (23 July 2010)
The Supreme Court of Canada has handed down a significant judgment on the availability of damages for a breach of human rights under the Canadian Charter of Rights and Freedom. City of Vancouver v Ward provides a four-step test for the determination of when damages are an appropriate remedy and what its quantum should be to achieve an appropriate and just result.
Read MoreDirector of Housing v TK [2010] VCAT Application 2010/11921 (Unreported, 22 July 2010)
VCAT Deputy President Lambrick has held that the Tribunal has jurisdiction to determine whether an application made pursuant to ss 250 and 330(1) of the Residential Tenancies Act has been made in breach of the Charter. This affirms the decision of Bell J in Director of Housing v Sudi [2010] VCAT 328.
Read MoreMayor of London (On behalf of the Greater London Authority) v Hall & Ors [2010] EWCA Civ 817 (16 July 2010)
The England and Wales Court of Appeal upheld a High Court decision which held that the Mayor of London is entitled to seek an injunction against a group of protestors who established a long-term camping village in a public space. The Court found the injunction did not violate the protestors’ right to freedom of expression or the right to freedom of peaceful assembly and freedom of association protections enshrined in arts 10 and 11 of the European Convention of Human Rights. The Court granted two defendants who protested separately from the group permission to appeal the injunction and associated costs.
Read MoreCastles v Secretary to the Department of Justice [2010] VSC 310 (9 July 2010)
On 9 July 2010, the Supreme Court of Victoria found that the plaintiff, Kimberley Castles, is entitled under s 47(1)(f) of the Corrections Act 1986 to undergo IVF treatment. The finding overturns a decision by the Secretary of the Department of Justice to deny Ms Castles access to IVF treatment and means that Ms Castles will be eligible for permits to leave prison on a visit-by-visit basis.
Read MoreClift v United Kingdom [2010] ECHR 1106 (13 July 2010)
In Clift v The United Kingdom, the European Court of Human Rights gave a broad reading to art 14 of the European Convention of Human Rights, finding that a person’s status as a particular class of prisoner could be a ground of discrimination under the Convention.
Read MoreCastles v Secretary to the Department of Justice [2010] VSC 310 (9 July 2010)
On 9 July 2010, the Supreme Court of Victoria found that the plaintiff, Kimberley Castles, is entitled under s 47(1)(f) of the Corrections Act 1986 to undergo IVF treatment. The finding overturns a decision by the Secretary of the Department of Justice to deny Ms Castles access to IVF treatment and means that Ms Castles will be eligible for permits to leave prison on a visit-by-visit basis.
Read MoreSmith, R (on the application of) v Secretary of State for Defence & Anor [2010] UKSC 29 (30 June 2010)
The Supreme Court of the United Kingdom has held by a 6:3 majority that the Human Rights Act 1998 (UK) has no application to members of the armed forces serving overseas when they are outside military bases. Therefore, deaths occurring on foreign soil need not be subject to full investigation into the possibility of State failure to protect human life under art 2 of the European Convention on Human Rights. However, deaths of military personnel on active service overseas which do occur within the jurisdiction of the United Kingdom and which appear to result from State failure should be subject to comprehensive investigation.
Read MoreDepartment of Human Services & Department of Health (Anti-Discrimination Exemption) [2010] VCAT 1116 (29 June 2010)
In this decision, McKenzie DP granted an exemption on the basis that it constitutes an appropriate special measure to reduce disadvantage caused by discrimination, as permitted by s 8(4) of the Charter.
Read MoreMembers of Owners Corporation on Plan of Subdivision No 441923W (Anti-Discrimination Exemption) [2010] VCAT 1111 (28 June 2010)
In this decision, McKenzie DP refused to grant a proposed exemption because it was not the least restrictive means of achieving the desired outcome, contrary to s 7(2)(e) of the Charter.
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