Court issues first guideline judgment on Community Corrections Orders

Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342 (22 December 2014)

In Victoria’s first guideline judgment the Court of Appeal stated that the availability of community correction orders (CCOs) dramatically changes the sentencing landscape. The Court of Appeal unanimously held that CCOs enable punitive and rehabilitative sentencing purposes to be served simultaneously, positing CCOs as punitive non-custodial sentences.

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Random stops and license checks by police lawful - coercive questioning not

DPP v Kaba [2014] VSC 52 (18 December 2014)

The Supreme Court of Victoria found that while the police did have the power to conduct a random stop and license check of Mr Kaba, the officers’ subsequent coercive questioning of him disproportionately limited his rights to privacy and freedom of movement under the Victorian Charter and was therefore unlawful.

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ACT Aboriginal Community Council not bound by ACT Human Rights Act

Stewart & Ors v Wreck Bay Aboriginal Community Council & Ors [2014] ACTSC 334 (18 December 2014)

The Supreme Court of the ACT has found that the Wreck Bay Aboriginal Community Council (WBACC) did not meet the definition of a public authority pursuant to s 40 of the Human Rights Act 2004 (ACT) (HRA) and therefore it did not need to take into account human rights considerations in its decision to evict the plaintiffs.

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Conscientious objection provisions don’t extend to managerial or administrative tasks

Greater Glascow Health Board v Doogan [2014] UKSC 68

The Supreme Court held that right to conscientious objection in the Abortion Act 1967 (UK) does not extend to delegating to, supervising or supporting staff who are taking part in the termination of a pregnancy.  In making its decision, the Supreme Court took a strict statutory interpretation approach, holding that broader policy arguments and Article 9 of the European Convention on Human Rights were extraneous to that enquiry. 

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Supreme Court of Victoria finds Director of Housing failed to consider human rights when deciding to evict mother and son

Burgess & Anor v Director of Housing & Anor [2014] VSC 648 (17 December 2014)

Macaulay J held that in making the decision to apply for a warrant of possession:

  1. The Director of Housing was obliged by law to consider the facts surrounding Ms Burgess’s health and the significance of maintaining the rented premises to her health and wellbeing.  The Director’s failure to do this constituted a jurisdictional error.  
  2. The Director was obliged by law to consider the human rights of Ms Burgess and her son identified in s 17 of the Charter.  Failure to take these rights into account made the Director’s decision unlawful under s 38 of the Charter [243]-[244].

His Honour made a declaration that the decision to apply for the warrant was and is of no legal force or effect, and was unlawful by reason of s 39(1) of the Charter [248]. He invited further submissions as to any further orders that should follow from his findings. 

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Individualised consideration, not stereotypes, needed when assessing sexuality-based refugee claims

A, B, C v Staatssecretaris van Veiligheid en Justice (European Court of Justice, C‑148/13 C‑149/13, C‑150/13, 2 December 2014)

The European Court of Justice examined Dutch authorities’ assessment of the credibility of men seeking asylum on the basis of feared persecution because of their declared homosexuality. The Court found that assessment of the credibility of a person’s claim to be homosexual should be sensitive to individual circumstances, not based on stereotypes, and consistent with fundamental human rights.

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VCAT has jurisdiction to consider claims of Charter breaches

Goode v Common Equity Housing [2014] VSC 585 (21 November 2014)

The Supreme Court has confirmed that a person seeking redress for a breach of the Charter of Human Rights and Responsibilities Act 2006 (Vic) is able to obtain relief or remedy based on Charter unlawfulness, even where their non-Charter claim is unsuccessful or not determined.

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High Court upholds Queensland “anti-bikie laws”

Kuczborski v Queensland [2014] HCA 46  (14 November 2014)

The High Court has upheld new offence-creating provisions of the Criminal Code Act 1899 (Qld) and new provisions of the Liquor Act 1992 (Qld), introduced as part of a package of legislation intended to deter criminal gangs and criminal organisations, including criminal motor cycle gangs.

In relation to other provisions enacted, the Court found that the plaintiff, a Hells Angel, did not have standing as he had not been charged with a relevant offence and did not contend that he intended or was likely to commit one. Accordingly, his exposure to increased penalties or bail consequences did not constrain his freedom to act.

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South African Police Service ordered to investigate alleged torture committed in Zimbabwe by and against Zimbabwean nationals

National Commissioner of The South African Police Service v Southern African Human Rights Litigation Centre and Another [2015] 1 SA 315 (Constitutional Court) (30 October 2014)

The Constitutional Court of South Africa (‘Court’) has found that the South African Police Service (‘SAPS’) is permitted under international law and has a duty under domestic law to investigate allegations of torture committed in Zimbabwe by and against Zimbabwean nationals, despite none of the suspects being present in South Africa.

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