Homeground Services v Mohamed (Residential Tenancies) [2009] VCAT 1131 (6 July 2009)
The Victorian Civil and Administrative Tribunal (‘VCAT’) has held that a non-profit welfare agency acted unlawfully pursuant to s 38(1) of the Victorian Charterin seeking to evict a young tenant from transitional housing in accordance with a ‘youth tenancy policy’ in circumstances in which it was likely that the tenant would thereby become homeless.
Read MoreVerein Gegen Tierfabriken Schweiz (VgT) v Switzerland (No 2) [2009] ECHR 32772/02 (30 June 2009)
In VgT v Switzerland (No 2) the Grand Chamber of the European Court of Human Rights held that not only should the State refrain from interfering with an individual’s rights under the European Convention on Human Rights, but in some circumstances there is a positive obligation on the State to ensure that an individual is afforded guarantees under the Convention. In this case, the State was required to ensure the full and proper execution of a judgment of the European Court to remedy a breach of the Convention and the failure to adequately do so constituted a fresh breach of the Convention.
Read MoreAC v Manitoba (Director of Child and Family Services), 2009 SCC 30 (26 June 2009)
On 26 June 2009, the Canadian Supreme Court handed down a decision which discussed in detail the right of adolescents to make their own medical decisions. The Court held that the wishes of the child must be considered when determining what action was in the child’s best interests.
Read MoreLondon & Quadrant Housing Trust v Weaver, R (On the application of) [2009] EWCA Civ 587 (18 June 2009)
A recent decision of the Court of Appeal has revisited the vexed issue of the definition of ‘public authority’. The decision warrants attention for a number of reasons. First, the decision acts as clear authority that a social landlord is a public authority, and that the act of terminating the tenancy of a tenant is not a private act and is therefore susceptible to judicial review under the Human Rights Act 1998 (UK) (‘HRA’). Second, the decision highlights the need for clear legislative guidance on what constitutes a ‘public authority’. This is discussed further below.
Read MoreNolan v MBF Investments Pty Ltd [2009] VSC 244 (18 June 2009)
The Supreme Court of Victoria recently confirmed that fundamental human rights, both in international law and the Victorian Charter, are relevant interests that must be considered when a mortgagee sells a property to satisfy a debt. This is especially relevant where a debt is secured over a family home.
Read MoreAttorney-General's Reference No 3 of 1999: Application by the British Broadcasting Corporation to set aside or vary a Reporting Restriction Order [2009] UKHL 34 (17 June 2009)
The House of Lords has held that, in the interests of the right to freedom of expression, it was a reasonable intrusion on the right to privacy to publish the name of a defendant acquitted of rape.
Read MoreResidents of Joe Slovo Community v Thubelisha Homes & Ors [2009] ZACC 16 (10 June 2009)
The South African Constitutional Court has upheld a High Court decision to grant an application to evict approximately 20,000 residents of the informal settlement known as the Joe Slovo settlement. The eviction was sought by Thubelisha Homes (a government company), the Minister for Housing and the Minster of Local Government and Housing (together, the ‘Respondents’) for the development of an affordable housing project in the Western Cape (the ‘Project’).
Read MoreSecretary of State for the Home Department v AF & Anor [2009] UKHL 28 (10 June 2009)
Nine Lords of the House of Lords have unanimously followed the Grand Chamber of the European Court of Human Rights in Strasbourg (ECHR) in the decision of A v United Kingdom. That decision clarified that where a person subject to a 'control order' under the Prevention of Terrorism Act 2005 (PTA) challenges its validity, he or she must be given sufficient information to effectively answer the allegations against them. The reading down of the PTA to include a right to a fair trial means control orders cannot be based entirely on evidence undisclosed to the 'controlee'.
Read MoreSwancom Pty Ltd v Yarra CC [2009] VCAT 923 (10 June 2009)
On 10 June 2009, Deputy President Dwyer and Member Bensz of the Victorian Civil and Administrative Tribunal handed down a decision which discussed the application of the Charter of Human Rights and Responsibilities Act 2006 to local government planning decisions.
Read MoreOpuz v Turkey [2009] ECHR 33401/02 (9 June 2009)
In June 2009, the European Court of Human Rights found Turkey in violation of its obligations, under arts 2, 3 and 14 of the European Convention on Human Rights, to protect the applicant and her mother from domestic violence. In the landmark decision, the Court held that domestic violence is a form of discrimination that states are required to eliminate and remedy. The case brings the Court’s jurisprudence in line with international human rights law, which has long recognised such violence as a form of discrimination.
Read MoreR v Godin, 2009 SCC 26 (CanLII) (4 June 2009)
The Supreme Court of Canada upheld an appeal for a stay of proceedings where there was a delay of 30 months between the accused being charged and brought to trial. The Court held that the accused’s right to be tried within a reasonable time under the Canadian Charter of Rights and Freedoms had been violated.
Read MoreTrustees for the time being of the Biowatch Trust v Registrar Genetic Resources and Others (CCT 80/08) [2009] ZACC 14 (3 June 2009)
The Constitutional Court of South Africa has confirmed that the general rule for an award of costs in constitutional litigation between a private party and the state is that if the private party is successful, it should have its costs paid by the state, and if unsuccessful, each party should pay its own costs.
The litigation must raise a genuine constitutional issue and any perceived ‘misconduct’ on the part of the applicant would need to be of such a compelling kind to justify a departure from the general rule. The Court held that the over-arching principle is not to discourage the pursuit of constitutional claims.
Read MoreSzuluk v United Kingdom [2009] ECHR 36936/05 (2 June 2009)
The European Court of Human Rights has held that it is a disproportionate interference with an individual's right to privacy to monitor their confidential medical correspondence with their specialist. The prison governor had directed that the applicant's correspondence with his specialist be opened and inspected by the prison medical officer to ensure that there were no illicit enclosures. The applicant had sought to correspond confidentially with his specialist to ensure that he was receiving appropriate care and supervision with respect to his potentially life-threatening condition. The applicant, who had lost before the UK Court of Appeal, successfully argued that, by analogy with legal correspondence, the risk of his abusing the confidentiality of his correspondence for illicit purposes was outweighed by the likelihood that inspecting his correspondence would inhibit what he conveyed to the specialist, thereby harming the quality of advice that he received.
Read MoreWood v Commissioner of Police for the Metropolis [2009] EWCA Civ 414 (21 May 2009)
The England and Wales Court of Appeal has held that the police taking photographs of an individual in a public space (and retaining those photographs) breached that individual's right to privacy under art 8(1) of the European Convention on Human Rights, which states that every person has the right to respect for their private and family life, their home and his correspondence.
Read MoreKay v Victorian Attorney-General & Anor (Victorian Court of Appeal, Unreported, 19 May 2009)
In this case, the Victorian Court of Appeal considered whether the making of a vexatious litigant order was compatible with the right to a fair hearing under s 24 of the Victorian Charter. The Court held that while the right to a fair hearing subsumes a right to access the courts and, in certain cases, a right to legal aid, these rights are not absolute and may be subject to reasonable limitations. In the circumstances, the Court considered the vexatious litigant order to be a reasonable limitation.
Read MoreKulikowski v Poland [2009] ECHR 18353/03 (19 May 2009)
The European Court of Human Rights has held that the right to access courts imposes positive obligations on courts to inform individuals of their entitlements, that delays in obtaining expert evidence will not justify extended pre-trial detention, and that prohibition of contact with family members who are witnesses may be a permissible limitation on the right to family.
Read MoreSecretary of State for Defence v Smith, R (on the application of) [2009] EWCA Civ 441 (18 May 2009)
The Court of Appeal of England and Wales held that a soldier in the British Army serving in Iraq was within the jurisdiction of the United Kingdom for the purposes of the Human Rights Act 1998 (UK). The United Kingdom is therefore obliged to extend protection under the Act to its soldiers serving overseas even when they are not on military bases.
Read MoreDe Simone v Bevnol Constructions & Developments Pty Ltd & Ors (Domestic Building) [2009] VCAT 888 (13 May 2009)
For the first time, VCAT has referred a question of law arising under the Charter for determination by the Supreme Court, by way of s 33 of the Charter. The referred question is whether VCAT's implied statutory power to stay a civil proceeding (in particular, the McMahon v Gould guidelines applicable to that power) should be revised in light of ss 24 and 25 of the Charter, and if so, how.
Read MoreFaizovas, R (on the application of) v Secretary of State for Justice [2009] EWCA Civ 373 (13 May 2009)
This case sets out a requirement for prisons to undertake detailed risk assessments if they deem it necessary for handcuffs to be used on a prisoner during hospital visits. The England and Wales Court of Appeal found that the risk assessments carried out in this case demonstrated that the prisoner posed a realistic risk of absconding. In light of this security risk, the use of handcuffs did not constitute degrading treatment. Nonetheless, the prison was instructed to revise its policy on handcuffing, which was deemed to fall short of current human rights standards.
Read MoreHakimi v Legal Aid Commission (ACT) [2009] ACTSC 48 (12 May 2009)
The ACT Supreme Court has ruled that there is no absolute right for a legally aided person to choose their own lawyer. This case was the first application made under amendments to the Human Rights Act 2004 (ACT) creating a new cause of action for breach of human rights, which came into force on 1 January 2009.
Read MoreSecretary of State for Justice v James [2009] UKHL 22 (6 May 2009)
The House of Lords has confirmed that a breach of arts 5(1)(a) and 5(4) of the European Convention on Human Rights may occur in circumstances where a prisoner is detained for longer than is necessary for public protection or for a lengthy period without a meaningful review of the risk they pose to the public.
Read MoreX v Australia, UN Doc CAT/C/42/D/324/2007 (5 May 2009)
Mr X, a Palestinian born in Lebanon in 1960, was detained at the Villawood Detention Centre in Australia. He sought political asylum in Australia, however, his request was rejected and he risked forcible removal to Lebanon. He claimed, inter alia, that by deporting him, Australia would violate his rights under art 3 of the Convention against Torture (CAT).
Read MoreYMCA - Ascot Vale Leisure Centre (Anti-Discrimination Exemption) [2009] VCAT 765 (4 May 2009)
This case explores the relationship between human rights and equal opportunity legislation. It was decided by VCAT that the YMCA should be granted a temporary exemption from the Equal Opportunity Act 1995 to enable it to conduct women-only swimming sessions and related programmes. This exemption was held to conform with the rights to equality and non-discrimination set out in the Charter.
Read MoreR v Briggs-Price [2009] UKHL 19 (29 April 2009)
The House of Lords has unanimously held that a confiscation order can be validly made on the basis of matters established by evidence at trial, but in relation to which a defendant has not been charged. This practice does not infringe the defendant's right to the presumption of innocence or right to a fair trial under the European Convention on Human Rights.
Read MoreVojnovic v Croatia, UN Doc CCPR/C/95/D/1510/2006 (28 April 2009)
The Human Rights Committee held that a lawful termination of tenancy rights under Croatian law amounted to an arbitrary interference with the right to home and violated art 17 of the International Covenant on Civil and Political Rights. The termination of the tenancy was held to be arbitrary as it was exercised in an unfair and discriminatory way.
Read MoreVCAT Makes Declaration of Breach of Human Rights in Major Charter Test Case
On 23 April 2009, Justice Bell, President of the Victorian Civil and Administrative Tribunal, handed down a much anticipated decision which discussed in detail important aspects of the application and operation of the Charter. The case concerned the compulsory medical treatment of a man, Mr Kracke, without his consent, and without this treatment having been reviewed by the Mental Health Review Board as required by the Mental Health Act 1986 (Vic).
Read MoreTornel v Spain, UN Doc CCPR/C/95/D/1473/2006 (24 April 2009)
The UN Human Rights Committee has held that the rights of a prisoner's relatives to protection from arbitrary interference with their family life, protected under art 17 of the International Covenant on Civil and Political Rights, will be infringed if prison authorities adopt a 'passive attitude' to keeping them informed of significant changes in the prisoner's heath.
Read MoreKhadr v Canada (Minister for Justice) [2009] FC 405 (23 April 2009)
On 23 April 2009, the Federal Court of Canada handed down a decision which discussed in detail the right of citizens to request their government to provide protection against acts which violate accepted norms of international law during a period of detention in a foreign country.
Read MoreKracke v Mental Health Review Board [2009] VCAT 646 (23 April 2009)
On 23 April 2009, Justice Bell, President of the Victorian Civil and Administrative Tribunal, handed down a significant decision which discussed in detail important aspects of the application and operation of the Charter.
Read MoreR v Patrick, 2009 SCC 17 (CanLII) (9 April 2009)
The Supreme Court of Canada has held that no privacy interest exists in the contents of garbage bags placed out for collection. Police had seized garbage bags from an individual's property, and used their contents to justify obtaining a warrant to search his home. The individual was subsequently convicted of possessing, producing and trafficking ecstasy. He unsuccessfully argued in the Supreme Court that the police's actions breached the Canadian Charter of Rights and Freedoms.
Read MoreDe Simone v Bevnol Constructions and Developments Pty Ltd (Unreported, Supreme Court of Victoria, Court of Appeal, Neave JA and William AJA, 3 April 2009)
The Court of Appeal held that courts and tribunals are bound by ss 24 (right to a fair hearing) and 25 (rights in criminal proceedings) of the Victorian Charter when they exercise functions engaging those rights.
In this case, there was a possibility that VCAT had erred by not taking ss 24 and 25 into account when refusing to stay civil proceedings. However, no substantial injustice was caused by the refusal and the Court of Appeal therefore declined to overturn VCAT's decision.
Read MoreWiktorko v Poland [2009] ECHR 14612/02 (31 March 2009)
The European Court of Human Rights has held that the treatment of a Polish national, whilst detained at a government-run 'sobering-up centre', constituted degrading treatment in violation of the substantive protection of art 3 of the European Convention on Human Rights. The applicant in this case was forcibly undressed by two male employees and was immobilised by restraining belts for a period of ten hours. Further, the Court held that subsequent investigations and proceedings carried out by Polish authorities were inadequate, in violation of the procedural limb of art 3 of the Convention.
Read MoreLam Siu Po v Commissioner of Police [2009] HKCFA 24 (26 March 2009)
In a case relating to the validity of a statutory bar to legal representation in police disciplinary proceedings, the Court of Final Appeal of Hong Kong established the following principles:
Dixon v Powell River (City), 2009 BCSC 406 (CanLII) (26 March 2009)
This case held that the Canadian common law should, wherever possible, be interpreted and developed to accord with the rights in the Canadian Charter of Rights and Freedoms. Garson J declined to follow earlier defamation case law on the basis that it was inconsistent with the right to freedom of expression. Her Honour held that a government body cannot sue individuals for defamation when those individuals speak out about the conduct of its governmental functions.
Read MoreMachele and 67 Others v William Marofane Mailula and Others [2009] ZACC 7 (26 March 2009)
The Constitutional Court of South Africa held that eviction will 'always' be a constitutional matter. The court further held an interim execution order for eviction was appealable where irreparable harm would result, were leave not granted. The applicants established irreparable harm largely on the basis that eviction involves the indignity and trauma of losing one's home.
Read MoreCity of Johannesburg and Others v Mazibuko and Others (489/08) [2009] ZASCA 20 (25 March 2009)
In this case, the Supreme Court of South Africa considered whether a local authority had a duty under the South African Constitution to provide free water to Phiri residents who could not afford to pay for such water themselves. The Court confirmed that all people in South Africa have the right to access sufficient water pursuant to s 27 of the South African Bill of Rights. It was held that 'sufficient water' is the quantity of water required for dignified human existence. On the facts of this case, Phiri residents were found to be entitled to 42 litres of water per person per day. Water metres which restricted Phiri residents' access to water were held to be unlawful.
Read MoreCanada (Citizenship and Immigration) v Li, 2009 FCA 85 (CanLII) (17 March 2009)
The Federal Court of Appeal of Canada ('FCA') has held that indefinite detention is a violation of the right to liberty and security of person.
Read MoreAM & Ors, R (on the application of) v Secretary of State for the Home Department & Ors [2009] EWCA Civ 219 (17 March 2009)
The UK Court of Appeal has affirmed that the government has an obligation to conduct an independent investigation where there is credible evidence of a potential breach of arts 2 (right to life) and 3 (prohibition against ill-treatment) of the European Convention on Human Rights.
Read MoreState of Victoria v Turner [2009] VSC 66 (4 March 2009)
In this case, the Supreme Court of Victoria considered whether it was bound by the interpretive provision in s 32 of the Charter when determining whether the Victorian Civil and Administrative Tribunal made an error of law in a decision relating to a proceeding commenced prior to 1 January 2007.
Read MoreDPP (Cth) v Barbaro [2009] VSCA 26 (3 March 2009)
The Victorian Court of Appeal has considered whether the enactment of the Charter necessitates a change to the treatment of delay under the Bail Act 1977 (Vic).
Read MoreNichoson & Ors v Knaggs & Ors [2009] VSC 64 (27 February 2009)
The Victorian Supreme Court adopted a human rights approach to the issue of legal capacity for those who have disabilities. In accordance with the UN Convention on the Rights of Persons with Disabilities (the 'CRPD'), Vickery J accepted the wide construction given to legal capacity and found that courts must ensure that the rights of people with disabilities are given support that is proportional to their needs and that conflicts of interest and undue influence do not occur.
Read MoreR v Fearnside [2009] ACTCA 3 (24 February 2009)
This case establishes the principle that the requirement, set out at s 30 the Human Rights Act 2004 (ACT), to interpret laws compatibly with human rights, requires that laws be interpreted compatibly with human rights as reasonably limited under the HRA, rather than with human rights in their entirety.
Read More09-085 [2009] VMHRB (23 February 2009)
In this case, which concerned the review of a community treatment order ('CTO') that prescribed a drug with serious side-effects, a number of significant issues arose in relation to the Charter:
A and Ors v United Kingdom [2009] ECHR 3455/05 [Grand Chamber] (19 February 2009)
In a case relating to the detention of non-national terror suspects in the UK, the European Court of Human Rights held that:
RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10 (18 February 2009)
In this case the House of Lords dismissed appeals by RB and U, Algerian nationals, from the Court of Appeal which had allowed their appeals from the Special Immigration Appeals Commission ('SIAC') and remitted their cases to it for reconsideration. The House of Lords also allowed an appeal by the Secretary of State for the Home Department from the Court of Appeal which had allowed Omar Othman's (aka Abu Qatada, a Jordanian national) appeal on the basis that his expulsion would contravene art 6 of the European Convention on Human Rights.
Read MoreBoulter v Nova Scotia Power Incorporation, 2009 NSCA 17 (CanLII) (13 February 2009)
This decision of the Nova Scotia Court of Appeal considered whether discrimination on the grounds of poverty is contrary to the right to equality under the Canadian Charter of Rights. The Court held that poverty is not a prohibited ground of discrimination under the Charter of Rights and it is therefore lawful to discriminate against low income earners.
The decision also confirms that the comparator test must be used when determining whether conduct is directly or indirectly discriminatory under the Charter of Rights.
Read MoreXFJ v Director of Public Transport (Occupational and Business Regulation) [2009] VCAT 96 (9 February 2009)
The Victorian Civil and Administrative Tribunal has confirmed that society's interests in an individual's rehabilitation can override the principle of 'Open Justice' and the right to freedom of expression. Herald and Weekly Times Pty Ltd ('HWT') applied to lift an order suppressing the identity of a man who had previously been acquitted of murdering his wife by reason of insanity and had recently been issued a taxi driver's licence. VCAT declined to revoke the order because publication of the man's identity could adversely affect his rehabilitation.
Read MoreTabernacle v Secretary of State for Defence [2009] EWCA Civ 23 (05 February 2009)
The England and Wales Court of Appeal has held that bylaws which prohibited camping in the vicinity of the Atomic Weapons Establishment at Aldermaston ('the AWE') were an unlawful interference with the right of the appellant, a member of the Aldermaston Women's Peace Camp ('the AWPC'), to freedom of expression and freedom of peaceful association under the European Convention on Human Rights.
Read MoreDavies v Commonwealth Bank of Australia Ltd (Credit) [2009] VCAT 90 (28 January 2009)
This case considered the correct approach to be followed in dealing with unrepresented litigants and balancing their rights to a fair trial and access to justice with defendants' rights.
Read MoreAustin & Anor v Commissioner of Police of the Metropolis [2009] UKHL 5 (28 January 2009)
In this case, the House of Lords dismissed an appeal by a woman claiming that her right to liberty was breached as a result of police crowd control measures in central London.
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