Grant v Torstar Corp, 2009 SCC 61 (22 December 2009)
This Canadian Supreme Court decision draws on the freedom of expression guarantee in the Canadian Charter to establish a new common law defence of ‘responsible public interest journalism’ to an action for defamation. The scope of this defence is similar to the expanded statutory defence of qualified privilege contained in the Defamation Act 2005 (Vic) s 30.
Read MoreFriend and Countryside Alliance v United Kingdom [2009] ECHR 2068 (17 December 2009)
In this case, the European Court of Human Rights unanimously held that a ban on fox hunting with dogs in the United Kingdom does not impinge upon the human rights enshrined in the European Convention on Human Rights. The Court's analysis focused on the rights to respect for private life, freedom of peaceful assembly and peaceful enjoyment of possessions.
Read MoreLadele v London Borough of Islington [2009] EWCA Civ 1357 (15 December 2009)
The England and Wales Court of Appeal has confirmed that a local council can compel its employee to register civil partnerships, even though this conflicts with the employee's religious beliefs.
Read MoreFinancial Times Ltd & Ors v United Kingdom [2009] ECHR 2065 (15 December 2009)
This decision explores the right to freedom of expression as it applies to the protection of journalists’ sources. The Court’s finding of a violation in this case shows that, at least in Europe, compelling circumstances will be required before limitations on this protection will be considered necessary and justified in a democratic society.
Read MoreRodriguez v Minister of Housing & Anor (Gibraltar) [2009] UKPC 52 (14 December 2009)
The Privy Council has held that a Gibraltar Housing Allocation Committee policy to effectively grant government housing joint tenancies only to heterosexual couples was indirectly discriminatory and unconstitutional.
Read MoreVictoria (City) v Adams, 2009 BCCA 563 (9 December 2009)
The British Columbia Court of Appeal has held that a city bylaw which prohibited homeless people from erecting any form of temporary shelter at night in a public park, in circumstances where the number of homeless people exceeded the number of shelter beds available, is a violation of the right to life, liberty and security of the person.
Read MoreR v Horncastle & Ors [2009] UKSC 14 (9 December 2009)
The new UK Supreme Court (replacing the House of Lords) has delivered an important judgment concerning the role of hearsay evidence; in particular, evidence adduced from witnesses who were unable to attend court either because they were dead or out of fear for their safety. The Court held that where the evidence before a court is that of an identified but absent witness, there is no reason for imposing an absolute rule that such evidence should be excluded where it is the 'sole or decisive evidence' against a defendant, provided appropriate counter-balancing measures had been adhered to.
Read MoreZaunegger v Germany [2009] ECHR 22028/04 (3 December 2009)
In this case, the European Court of Human Rights held by six votes to one that the denial of a fathers’ right to custody of a child born out of wedlock violated his right to respect for family life under art 8, in conjunction with discriminatory treatment under art 14 of the European Convention. The Court examined the tension between the right of fathers to have their family life respected and art 1626a § 2 of the German Civil Code and determined it amounted to unjustified discrimination against unmarried fathers on the grounds of sex in comparison with divorced fathers.
Read MoreBKM Ltd v British Broadcasting Corporation [2009] EWHC 3151 (Ch) (02 December 2009)
In a case concerning the relationship between the right to freedom of expression of media agencies and the right to privacy of nursing home residents, the England and Wales High Court has conducted a balancing exercise and found that the public interest in the case favoured the right to freedom of expression.
Read MoreA, R (on the application of) v London Borough of Croydon [2009] UKSC 8 (26 November 2009)
The difficulty in determining age has become prominent as a consequence of the increased movement of children around the world, and specifically the increased migration of unaccompanied young people. It is an issue of particular significance, for a number of reasons. States often have – or at least, ought to have – different policies and procedures in place in relation to the treatment of asylum seekers who are children. These may relate, for example, to the provision of guardianship, the provision of legal aid, conditions of any ‘detention’, the substantive consideration of whether the asylum seeker satisfies the requisite test (ie the refugee definition), or access to particular social entitlements (housing, welfare, education etc).
Read MoreRogers v Chief Commissioner of Police [2009] VCAT 2526 (26 November 2009)
In Rogers v Chief Commissioner of Police, VCAT held that CCTV footage and audio tape used for the investigation of an incident that occurred in the Banksia Unit of HM Barwon Prison were exempt from disclosure under the Freedom of Information Act 1982 (Vic). VCAT ordered that the documents should not be released to the Applicant, Darren Rogers
Read MoreOmojudi v United Kingdom [2009] ECHR 1820/08 (24 November 2009)
The European Court of Human Rights has held that the deportation of Steven Omojudi from the United Kingdom to Nigeria was an unjustifiable interference with Omojudi’s right to respect for private and family life under art 8 of the European Convention on Human Rights. Omojudi had lived in the UK for 26 years. During this time, he had been convicted of two serious criminal offences. In reaching its decision, the Court emphasised the long period during which Omojudi had not committed any offences and the significant disruption to his family life in the UK.
Read MoreKwok v Australia, CCPR/C/97/D/1442/2005 (23 November 2009)
The United Nations Human Rights Committee has found Australia to be in breach of its obligations under art 9(1) of the International Covenant on Civil and Political Rights in relation to mandatory immigration detention. The Committee ruled that 'detention for a period in excess of four years without any chance of substantive judicial review is arbitrary within the meaning of Article 9(1)'. The Committee also found potential breaches of arts 6 and 7 of the ICCPR if Australia returns the author, Ms Kwok, to China where she will likely face the death penalty.
Read MoreSagen v Vancouver Organizing Committee for the 2010 Olympic and Paralympic Winter Games, 2009 BCCA 522 (20 November 2009)
The British Columbian Court of Appeal has confirmed that the Canadian Charter of Human Rights and Freedoms does not apply to non-governmental entities or activities. The Court also held that the Charter right to equal benefit of the law does not apply in respect of benefits that are created by a private entity that is not acting as an agent of the Crown.
Read MoreEW, R (on the application of) v Secretary of State for the Home Department [2009] EWHC 2957 (Admin) (18 November 2009)
In this case, the England and Wales High Court held that the extradition of an asylum seeker to a safe third country did not constitute refoulement even if that country was not able to provide temporary accommodation and financial support. The right to freedom from cruel, inhuman and degrading treatment is entrenched in the International Covenant on Civil and Political Rights, the Victorian Charter of Human Rights and, relevantly for this case, the European Convention on Human Rights. However, the Court in EW found that this right did not impose a positive obligation to ensure a ‘general right to accommodation or a minimum standard of living’ and, as such, would not be breached by the extradition. The Court stated that ‘the setting of such a minimum standard – no matter how low – is a matter for social legislation, not the courts’.
Read MoreTravel Sisters (Anti-Discrimination Exemption) [2009] VCAT A189/2009 (17 November 2009)
In 2009, Erin Maitland applied to the Victorian Civil and Administrative Tribunal (‘VCAT’) under s 83 of the Equal Opportunity Act 1995 (Vic) (‘EO Act’), for an exemption to allow her to operate women only travel tours. The applicant submitted that her proposed business would provide access to a safe and secure environment for women wishing to travel.
Read MoreMcInnes v Vicroads (General) [2009] VCAT 2342 (4 November 2009)
McInnes made an application under the Freedom of Information Act 1982 (Vic) (‘FOI Act’) to VicRoads for a copy of an anonymous letter that VicRoads had received warning that his health might impact on his driving. VicRoads asked McInnes to provide them with a medical report, upon the presentation of which his licence was confirmed by VicRoads. However, the process caused McInnes to feel stressed and victimised. McInnes believed that a neighbour in his hostel had sent the letter.
Read MoreNovartis Pharmaceuticals UK Ltd & Ors v Stop Huntingdon Animal Cruelty & Ors [2009] EWHC 2716 (QB) (30 October 2009)
The High Court of England and Wales refused to grant amendments to an interim injunction that would have prevented animal rights activists from wearing blood spattered clothing, covering their faces with masks, displaying banners and using fireworks at a protest against a pharmaceutical company. The Court explored where to draw the line between free expression and unlawful harassment, observing that this is a matter of fact and degree.
Read MoreRussell v Yarra Ranges Shire Council [2009] VSC 486 (29 October 2009)
On 29 October 2009, Kaye J of the Supreme Court of Victoria considered the duty that a court or Tribunal might owe to an unrepresented litigant to ensure that the person understands his or her legal rights. His Honour considered the principles of natural justice under common law and also the right to a fair hearing under s 24 of the Charter of Human Rights and Responsibilities Act 2006. Justice Kaye found that the Victorian Civil and Administrative Tribunal had not breached the principles of natural justice and therefore had not denied rights under s 24 of the Charter.
Read MoreR (on the application of L) v Commissioner of Police of the Metropolis [2009] UKSC 3 (29 October 2009)
The United Kingdom Supreme Court has held that decisions to release information stored in public records about an individual’s criminal convictions, including non-conviction information, will always engage art 8 of the European Convention of Human Rights. Accordingly, when deciding whether to release information under s 115 of the Police Act 1997 for the purposes of an enhanced criminal record certificate, decision makers must consider whether the disclosure of the information is likely to interfere with the applicant’s private life, and, if so, whether that interference can be justified.
Read MoreCarey Baptist Grammar School Ltd (Anti-Discrimination Exemption) [2009] VCAT 2221 (23 October 2009)
Carey Baptist Grammar School ('Carey') was also successful in its application to VCAT for an exemption from the Equal Opportunity Act 1995 (Vic) ('EO Act'). VCAT renewed Carey's exemption to enable it to treat prospective female students preferentially in order to promote a gender balance of the student body.
Read MoreSecretary to the Department of Justice v Fletcher (Ruling No 3) [2009] VSC 503 (22 October 2009)
Section 49(2) of the Charter states that the Charter ‘does not affect any proceedings commenced or concluded before the commencement of Part 2’.
In this case, the question arose as to whether a particular application in relation to an Extended Supervision Order (‘ESO’) under the Serious Sexual Offenders Monitoring Act 2005 (Vic) (‘SOM Act’) was a ‘proceeding’ and, if so, the relevant date of its commencement.
Read MoreMetro West v Sudi [2009] VCAT 2025 (9 October 2009)
The Victorian Civil and Administrative Tribunal has held that a non-profit housing agency is a ‘public authority’ under section 4(c) of the Victorian Charter of Human Rights and Responsibilities Act 2006 (Vic).
Read MoreJoseph v City of Johanesburg [2009] ZACC 30 (9 October 2009)
The Constitutional Court of South Africa has held that government-owned electricity service providers have an obligation to accord procedural fairness to tenants receiving electricity before disconnecting supply.
Read MoreMazibuko v City of Johanesburg [2009] ZACC 29 (8 October 2009)
The decision of the Constitutional Court of South Africa in Mazibuko v City of Johannesburg [2009] ZACC 28 is the first to consider the right of access to sufficient water entrenched in the South African Bill of Rights. Its elucidation of the principles to be applied when Courts adjudicate cases based on economic and social rights will be crucial to the understanding of these rights both within and outside South Africa.
Read MoreThomson v ACT Planning and Land Authority [2009] ACAT 38 (2 October 2009)
On 2 October 2009, the ACT Civil and Administrative Tribunal (‘ACAT’) handed down a decision which discussed whether the limitation on ACAT’s jurisdiction to hear applications for review of planning decisions breached the right to a fair trial as protected under the Human Rights Act 2004 (ACT) (the ‘HRA’). The Court held that the limitation on their jurisdiction was proportionate.
Read MoreVictorian Electoral Commission (Anti-Discrimination Exemption) [2009] VCAT 2191 (30 September 2009)
VCAT has granted the Victorian Electoral Commission ('VEC') an exemption from the Equal Opportunity Act 1995 (Vic) ('EO Act') to enable the VEC to take into account certain political activities of a person when considering whether to offer the person employment, contract work or an appointment on the audit committee of the VEC. In arriving at her decision, Vice President Harbison referred to the principles enunciated by President Bell in Lifestyle Communities Ltd (No 3) [2009] VCAT 1869.
Read MoreLifestyle Communities Ltd (No 3) (Anti-discrimination) [2009] VCAT 1869 (22 September 2009)
In September 2009, VCAT President Justice Kevin Bell dismissed an application by Lifestyle Communities Ltd for an exemption under the Equal Opportunity Act 1995 (Vic) (‘EOA’). In making the orders, Bell P extensively considered the role of VCAT as a public authority and the operation of s 7(2) (limitations on human rights) and s 8 (right to equality and non-discrimination) of the Charter of Human Rights and Responsibilities Act 2006 (Vic).
Read MoreDale v DPP [2009] VSCA 212 (21 September 2009)
In considering whether a former police officer should be granted bail, the Court of Appeal accepted that the circumstances of his custody constituted 'exceptional circumstances' as defined by the Bail Act 1977 (Vic). Unless the appellant was granted bail, he would likely be remanded into custody for over two years. While in remand, the appellant was kept in solitary confinement for six months 'for his own protection' not because he was a risk to others. As a result, he suffered mental illness.
Read MoreMcIntosh v Victoria Police [2009] VCAT 1868 (16 September 2009)
In this case, Bell J held that the Freedom of Information Act 1982 (Vic) should be interpreted consistently with the s 15 of the Charter, which recognises that the right to seek, receive and impart information is an aspect of the human right of freedom of expression.
Read MoreMorro & Ahadizad v Australian Capital Territory [2009] ACTSC 118 (10 September 2009)
Gray J of the Supreme Court of the Australian Capital Territory found that s 18(7) of the Human Rights Act 2004 (ACT) (‘ACT Act’) creates an independent statutory right to compensation for unlawful arrest or detention. On the facts before him, however, he found that the tort of false imprisonment provided a sufficient remedy and that additional public law compensation under the Human Rights Act was not necessary.
Read MoreMaterials Fabrication Pty Ltd v Baulderstone Pty Ltd [2009] VSC 405 (8 September 2009)
On 8 September 2009, Vickery J of the Victorian Supreme Court handed down a decision which considered the right to commence a civil proceeding. In the decision, Vickery J noted that the common law enshrines a right to commence legal proceedings and that this right is re-inforced by of s 24(1) of the Victorian Charter. A dispute resolution clause in a commercial contract which aimed to limit parties’ access to the court was held inconsistent with this right and therefore invalid.
Read MoreConroy v Yooralla Society of Victoria [2009] VCAT 1873 (7 September 2009)
The Applicant, Mr Conroy had a physical disability and had lived in a community residential unit operated by the Respondent (Yooralla Society of Victoria) for 12 years before receiving two notices to vacate under the Disability Act 2008. The first Notice alleged that the Applicant endangered the safety of other residents or staff; the second, that he caused serious disruption to the proper use and enjoyment of the premises by other residents.
Read MoreRe an application under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381 (7 September 2009)
In a landmark decision for the operation of the Charter of Human Rights and Responsibilities, Warren CJ of the Supreme Court of Victoria, has found that a provision of the Major Crime (Investigative Powers) Act 2004 (Vic), which provides for the abrogation of the privilege against self-incrimination, must be interpreted as extending derivative use immunity to a person, so as to be compatible with human rights.
Read MoreAB, R (on the application of) v Secretary of State for Justice & Anor [2009] EWHC 2220 (4 September 2009)
In this case, the Administrative Court of the High Court of Justice held that the continued detention of a pre-operative transgender woman in a male prison breached her right to privacy under art 8 of the European Convention of Human Rights.
Read MoreR v Kent [2009] VSC 375 (2 September 2009)
On 2 September 2009, Bongiorno J of the Victorian Supreme Court handed down a decision which considered the application of the Charter to sentences of imprisonment imposed on individuals with mental health conditions.
Read MoreSecretary to the Department of Justice v AB [2009] VCC 1132 (28 August 2009)
The Victorian County Court has handed down a decision which considers in some detail the application of the interpretative obligation in the Victorian Charter of Human Rights and Responsibilities Act. Significantly, Judge Ross held that the proper construction of s 11 of the Serious Sex Offenders Monitoring Act 2005, as amended by legislation passed following the Court of Appeal’s decision in RJE v Secretary to the Department of Justice, was not compatible with human rights.
Read MoreGiuliani and Gaggio v Italy [2009] ECHR 23458/02 (25 August 2009)
The European Court of Human Rights has found that Italy failed to adequately investigate the death of a protestor by a member of the military police, or carabinieri, and this failure to investigate breached Italy’s obligations to safeguard the right to life. The Court was, however, not satisfied that the death itself involved a breach of human rights.
Read MoreCanada (Prime Minister) v Khadr, 2009 FCA 246 (14 August 2009)
A majority of the Canadian Federal Court of Appeal recently held that Canada’s discretion to decide whether and when to request the return of a Canadian citizen detained in a foreign country, a matter within its exclusive authority to conduct foreign affairs, was fettered by the application of the Canadian Charter of Rights and Freedoms. The Court ordered Canada to request the repatriation of Omar Ahmed Khadr from the United States, by whom he was detained in Guantanamo Bay on terrorism-related charges.
Read MoreBrümmer v Minister for Social Development and Others (CCT 25/09) [2009] ZACC 21 (13 August 2009)
On 13 August 2009, the Constitutional Court of South Africa handed down a decision regarding the rights of access to court and access to information. The Court determined that, in certain circumstances, statutory time limitations for the filing of appeals may be unconstitutional.
Read MoreSmeaton v Victorian WorkCover Authority [2009] VCAT 1195 (5 August 2009)
The Applicant sought review of a decision by the Victorian WorkCover Authority to transfer documents that were the subject of a Freedom of Information request by the Applicant to the Ombudsman. The effect of the transfer was to place the documents beyond the Applicant’s reach as, once a document is transferred to the Ombudsman, it is immune from release: s 29A of the Ombudsman Act 1973. The application for review was dismissed on the basis that VCAT does not have jurisdiction to review the relevant decision: s 50(2) of the FOI Act.
Read MorePurdy, R (on the application of) v Director of Public Prosecutions [2009] UKHL 45 (30 July 2009)
In this case, the House of Lords found that art 8 of the European Convention of Human Rights compelled the DPP to issue specific guidelines as to when prosecution would be recommended for a person who had assisted another to commit suicide.
Read MoreAlberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37 (24 July 2009)
In a 4:3 decision handed down on 24 July 2009, the Supreme Court of Canada allowed an appeal regarding the constitutionality of a regulation requiring photographs be taken for the grant of a driver’s licence. The regulation was held to be constitutional because it is a justifiable limit on the right to religious freedom; and does not constitute religious discrimination against the respondents.
Read MoreN, R (on the application of) v Secretary of State for Health [2009] EWCA Civ 795 (24 July 2009)
The House of Lords held that a policy of banning smoking at a psychiatric hospital did not contravene the patients’ human rights and was lawful. Specifically the Court held that art 8 of the European Convention of Human Rights does not protect the right to smoke.
Read MoreSecretary of State for the Home Department v GG [2009] EWCA Civ 786 (23 July 2009)
The Court of Appeal of England and Wales has considered the Home Secretary’s power to restrict a person’s liberty with a control order made under the UK Prevention of Terrorism Act 2005. The Court held that broad powers under the relevant legislation had to be read consistently with the common law principle that fundamental rights must not be abrogated without express parliamentary authority.
Read MoreJF & Anor, R (on the application of) v Secretary of State for the Home Department [2009] EWCA Civ 792 (23 July 2009)
The UK Court of Appeal has found that a regime providing for automatic and indefinite reporting obligations for certain sex offenders, without the possibility of any future review, imposes a disproportionate limit on the right to privacy.
Read MoreHobsons Bay City Council & Anor (Anti-Discrimination Exemption) [2009] VCAT 1198 (17 July 2009)
The Victorian Civil and Administrative Tribunal has again granted a swimming pool operator a temporary exemption from the Equal Opportunity Act 1995 (Vic) ('EO Act') to enable it to conduct women-only swimming sessions and related programmes. Deputy President McKenzie held that the exemption was a special measure for advancing equality and imposed a reasonable limitation on the right of men to non-discrimination and freedom of movement under the Charter. Her reasons are very similar to those that she stated in the matter of YMCA – Ascot Vale Leisure Centre (Anti-Discrimination Exemption) [2009] VCAT 765 (4 May 2009).
Read MoreCentre for Child Law v Minister for Justice and Constitutional Development and Others (with the National Institute for Crime Prevention and the Re-integration of Offenders as Amicus Curiae) [2009] ZACC 18 (15 July 2009)
The Constitutional Court of South Africa upheld a decision of the High Court declaring invalid provisions of the Criminal Law (Sentencing) Amendment Act 38 (2007) (Amendment Act) that made minimum sentences for certain serious crimes applicable to 16 and 17 year old children. The provisions were found to negate the Constitution’s principles that children should only be detained as a last resort and for the shortest period of time.
Read MoreGreater Vancouver Transportation Authority v Canadian Federation of Students – British Columbia Component, 2009 SCC 31 (10 July 2009)
The Canadian Supreme considered advertisements on public buses and held that a policy prohibiting political advertisements amounted to a breach of the right to freedom of expression under s 2(b) of the Canadian Charter of Rights and Freedoms.
Read MoreAC (Guardianship) [2009] VCAT 1186 (8 July 2009)
This case concerns AC, a 26 year old man with a mild intellectual disability who has been living at Sandhurst since 2000. Due to a history of assaultive and sexualised behaviours, AC was placed on a Supervised Treatment Order (‘STO’) under the Disability Act 2006 (Vic). The STO required him to be under constant supervision and allowed him to leave Sandhurst only in restricted circumstances and under the supervision of two staff members. In 2009, AC applied to the Victorian Civil and Administrative Tribunal for review of the STO. AC wanted the STO to be revised so that he could come and go from Sandhurst as he wished during the daytime and have much more freedom in the community. AC stated that he was prepared to remain at Sandhurst and receive treatment voluntarily. The Department of Human Services opposed AC’s application.
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