Davies 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.
Read MoreLeonidis v Greece [2009] ECHR 43326/05 (8 January 2009)
In the case of Leonidis v Greece, the European Court of Human Rights considered art 2 of the European Convention on Human Rights in the context of the police shooting of an 18 year old male (Victim).
Read MoreAndrew Casey v Richard Luke Alcock [2009] ACTCA 1 (23 January 2009)
The ACT Court of Appeal has indicated that the UK's Ghaidan approach to legislative construction - which allows a court to depart from the unambiguous meaning of the legislation where necessary to give effect to a designated purpose - does not necessarily apply under the Legislation Act 2001 (ACT) or Human Rights Act 2004 (ACT) ('HR Act (ACT)').
Read MoreWright & Ors v Secretary of State for Health & Anor [2009] UKHL 3 (21 January 2009)
The House of Lords has recently issued a declaration of incompatibly under the Human Rights Act 1998 (UK) ('HR Act') in relation to the Care Standards Act 2000 (UK) ('Act'). The House of Lords held that the Act may irreparably damage the employment or employment prospects of persons suspected of posing a risk of harm to vulnerable adults. It is therefore incompatible with the right to a fair hearing and the right to respect for private and family life.
Read MoreBlack v Secretary of State for Justice [2009] UKHL 1 (21 January 2009)
The House of Lords has held that the Justice Secretary's power to determine whether certain long-term prisoners should be released on parole does not constitute a breach of art 5 of the European Convention on Human Rights, which requires the lawfulness of detention to be determined by a court.
Read MoreAl-Khawaja and Tahery v United Kingdom [2009] ECHR 26766/05 (20 January 2009)
The European Court of Human Rights has held that allowing a witness statement to be admitted as evidence where the witness is not available for cross examination and that evidence is the sole or decisive basis for convicting the accused violates the right to a fair trial provided in arts 6 § 1 and 6 § 3(d) of the European Convention on Human Rights.
Read MoreCzarnowski v Poland [2009] ECHR 28586/035 (20 January 2009)
The Applicant, Mr Edward Czarnowski, lodged an application with the European Court of Human Rights against Poland for breach of art 8 of the European Convention on Human Rights. Art 8 provides:
'Everyone has the right to respect for his private and family life...There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.'
Read MoreErdoğan v Turkey [2009] ECHR 39656/03 (13 January 2009)
The European Court of Human Rights recently found that the Government of Turkey, having ordered lawyer Ayhan Erdoğan to pay compensation for remarks that he made against a public figure during court proceedings, had breached Mr Erdoğan's right to freedom of speech in violation of art 10 of the European Convention on Human Rights.
Article 10 of the Convention guarantees the right to freedom of expression, including the freedom to 'impart information and ideas without interference by public authority and regardless of frontiers' (art 10(1)), subject to such restrictions and penalties as are 'prescribed by law and are necessary in a democratic society… for the protection of the reputation or rights of others' (art 10(2)).
Read MoreTV Vest AS & Rogaland Pensjonisparti v Norway [2008] ECHR 21132/05 (11 December 2008)
In this case, the European Court of Human Rights considered the right to freedom of expression in the context of political advertising in the media. This judgment again shows that there must be a reasonable relationship of proportionality between the legitimate aim pursued by a statutory prohibition and the means deployed to achieve that aim.
Read MoreRJE v Secretary to the Department of Justice [2008] VSCA 131 (18 December 2008)
In this case, Nettle J of the Victorian Court of Appeal considered the scope and operation of s 32(1) of the Victorian Charter of Human Rights, which provides that ‘so far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights’.
Read MoreSavage v South Essex Partnership NHS Foundation Trust [2008] UKHL 74 (10 December 2008)
The House of Lords has held that, pursuant to the right to life, health authorities have an ‘over-arching obligation to protect the lives of patients in their hospitals’. This obligation includes a duty to ensure that staff are highly trained, professional and competent and that the policies, procedures and systems in place at the hospital adequately safeguard life.
In addition to this ‘general obligation’, hospitals are under an ‘operational obligation’ to take all reasonable steps and measures to prevent the suicide of any patient that the hospital knows or ought to have known presents a ‘real and immediate’ risk of suicide.
Read MoreWellington R, (On the Application of) v Secretary of State for the Home Department [2008] UKHL 72 (10 December 2008)
The House of Lords has held that a mandatory sentence of life imprisonment without parole does not necessarily constitute inhuman or degrading treatment or punishment under art 3 of the European Convention on Human Rights.
Read MoreDzieciak v Poland [2008] ECHR 77761/01 (9 December 2008)
The case concerns the applicant’s complaint about the excessive length of his pre-trial detention and inadequacy of the medical care he had received during that time. After the applicant’s death, the applicant’s wife alleged that the authorities contributed to her husband’s death by failing to take the appropriate measures to protect his health and life.
The applicant’s wife relied on arts 2 (right to life), 3 (prohibition of inhuman or degrading treatment) and 5 (right to liberty and security) of the European Convention. This case is informative to the interpretation of corresponding provisions in the Charter, being ss 9, 10 and 21 respectively.
Read MoreS and Marper v United Kingdom [2008] ECHR 30562/04 [Grand Chamber] (4 December 2008)
The case of S and Marper v United Kingdom considered whether the retention of DNA and fingerprints from innocent people is consistent with human rights law.
This case will be particularly informative for the interpretation and application of s 13 (privacy) and s 7 (limitations) of the Victorian Charter.
Read MoreSalduz v Turkey [2008] ECHR 36391/02 [Grand Chamber] (27 November 2008)
The Grand Chamber of the European Court of Human Rights has overruled a lower chamber decision, finding that the right to a fair trial (prescribed in art 6 of European Convention on Human Rights) includes access to legal assistance during the investigation stage of a suspect by the police.
Read MoreR (on the application of JL) v Secretary of State for Justice [2008] UKHL 68 (26 November 2008)
The House of Lords has recently unanimously held that the right to life established by art 2 of the European Convention on Human Rights requires the state to carry out an independent investigation whenever a person is left incapacitated by a suicide attempt in custody.
Read MoreE (a child), Re (Northern Ireland) [2008] UKHL 66 (12 November 2008)
In this case, the House of Lords decided that a police response to sectarian unrest in Northern Ireland did not constitute a breach by the State of its positive obligation to prevent the infliction of inhuman and degrading treatment upon its citizens under art 3 of the European Convention on Human Rights.
Baroness Hale discussed how the special vulnerability of children impacted upon the State’s obligations under article 3.
Read MoreSeachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd & Ors (Domestic Building) [2008] VCAT 2629 (25 November 2008)
In this case, VCAT found that the Charter rights to a fair hearing (s 24) and the rights in criminal proceedings (s 25) do not extend to persons who are being investigated by police for possible commission of a criminal offence.
Read MoreRe AWB Limited [2008] VSC 473 (12 November 2008)
The Supreme Court of Victoria (Robson J) has held that civil penalty proceedings against five former directors of AWB Limited should be stayed in the exercise of the Court’s inherent jurisdiction. This was on the basis that criminal proceedings are threatened against them for conduct that is substantially the same as the conduct that is the subject of the civil penalty proceedings. Whilst the stay applications were not decided on the basis of the defendants’ Charter right to a fair hearing, the principles discussed by the Court provide guidance as to how Victorian courts may give content to the right in other proceedings.
Read MoreRoyal Victorian Bowls Association Inc (Anti-Discrimination Exemption) [2008] VCAT 2415 (26 November 2008)
In a recent VCAT decision, Harbison J has confirmed that the limitations provision of the Charter now defines the parameters of VCAT’s power to grant an exemption from the Equal Opportunity Act 1995 (Vic) (‘EO Act’) under s 83 of the EO Act.
This decision concerned an application by the Royal Victorian Bowls Association (‘RVBA’) and the Victorian Ladies Bowling Association (‘VLBA’) for an exemption from the EO Act to allow them to conduct single sex lawn bowls competitions.
Read MoreRe Dickson [2008] VSC 516 (26 November 2008)
In refusing an application for bail, Justice Lasry of the Victorian Supreme Court considered the impact of s 21(5) of the Charter – which provides the right to be brought to trial without unreasonable delay – on the Bail Act 1997 (Vic).
Read MoreDirector of Housing v IF [2008] VCAT 2413 (18 November 2008)
The Residential Tenancies List of the Victorian Civil and Administrative Tribunal rejected submissions that making a compliance order against a tenant would be contrary to the Charter. Member Nihill considered that the proceedings did engage the s 13 Charter ‘privacy’ right however considered the compliance procedure to be a reasonable limitation under s 7 of the Act.
Read MoreXFJ v Director of Public Transport (Occupational and Business Regulation) [2008] VCAT 2303 (31 October 2008)
In overturning a decision by the Director of Public Transport to refuse to grant XFJ, the applicant, accreditation to drive commercial taxi vehicles under the Transport Act 1983 (Act) , VCAT considered the application of the obligation under s 32(1) of the Charter to interpret laws consistently with human rights.
Read MorePHS Community Services Society v Canada (Attorney General), 2008 BCSC 1453 (31 October 2008)
This case concerned an application for special costs. The Supreme Court of British Columbia held that the proceeding was public interest litigation, and that special costs could therefore be awarded to the plaintiffs.
Read MoreTimes Newspapers Ltd & Ors v R & Ors [2008] EWCA Crim 2396 (24 October 2008)
The England and Wales Court of Appeal has held that a defendant should not be identified if it would lead to a ‘real and immediate’ risk to their right to life.
Read MoreVictoria (City) v Adams 2008 BCSC 1363 (14 October 2008)
The Supreme Court of British Colombia in Canadahas made declarations that certain by-laws, enacted by the City of Victoria, violated s 7 of the Canadian Charter of Rights and Freedoms as they deprived homeless people of their right to life, liberty and security. The effect of this declaration was that those by-laws are of no effect insofar as they prevent homeless people from erecting temporary shelters.
Read MoreRJM, R (On The Application of) v Secretary of State For Work and Pensions [2008] UKHL 63 (22 October 2008)
The Social Security Contributions and Benefits Act 1992 (UK) provides for a 'disability premium' for people receiving welfare payments, except where the person is 'without accommodation'. In this case the House of Lords decided that discrimination in the distribution of welfare payments can be justified under the European Convention on Human Rights.
Read MoreRenolde v France [2008] ECHR 5608/05 (16 October 2008)
On 16 October 2008, the European Court of Human Rights held that the suicide of a mentally ill prisoner in France was attributable to the authorities’ failure to provide adequate medical care. This failure was a breach of the deceased’s right to life and right to be free from inhuman or degrading treatment.
Read MoreEM (Lebanon) v Secretary of State For The Home Department [2008] UKHL 64 (22 October 2008)
The House of Lords recently ruled that a foreign national could not be removed from the UK in circumstances that would completely deny or nullify her right to family life, since such removal would be incompatible with the UK's obligations under the European Convention on Human Rights, given domestic effect by the Human Rights Act 1998.
Read MoreAS (Pakistan) v Secretary of State for the Home Department [2008] EWCA Civ 1118 (15 October 2008)
The England and Wales Court of Appeal recently allowed an appeal against a decision of the Asylum and Immigration Tribunal regarding the deportation of AS, a Pakistani national. The Court held that the Tribunal erred in two respects: first, in finding that deportation would not interfere with AS’ right to respect for his private and family life (under art 8 of the European Convention on Human Rights), and second, in its assessment of proportionality.
Read MoreHaase v Independent Adjudicator & Anor [2008] EWCA Civ 1089 (14 October 2008)
Article 6(1) of the European Convention of Human Rights provides, ‘[i]n the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing … by an independent and impartial tribunal established by law.’ This case was an appeal from a decision of the High Court holding that art 6(1) does not require prosecutorial independence. The England and Wales Court of Appeal dismissed the appeal and held that art 6(1) does not impose a general requirement of prosecutorial independence. Their Lordships held that a lack of prosecutorial independence should only be taken into account when it has some other effect on the impartiality of the tribunal.
Read MoreLM (Guardianship) [2008] VCAT 2084 (9 October 2008)
LM is a 25 year old woman with a borderline to mild intellectual disability and a history of psychological and behavioural problems dating back to her childhood.
In 2004 LM was placed on a two year community based order following various convictions. In 2007 LM was charged with a number of offences and was released on bail to Furlong House in Parkville. While resident at Furlong House LM had a number of incidents which included non-epileptic seizures on roads, walking into oncoming traffic, physical aggression towards other people, threatening self-harm or suicide, and assaulting staff at Furlong House. In February 2008 LM was convicted of a number of offences relating to these incidents.
Read MoreR (on the application of George Loch) v Secretary of State for Justice [2008] EWHC 2278 (Admin) (02 October 2008)
The England and Wales High Court (Administrative Court) has held that the Secretary of State's decision that the applicant's next Parole Board review should take place approximately 18 months after the last one, amounted to a violation of art 5(4) of the European Convention on Human Rights which entitles a person to challenge the lawfulness of their detention or deprivation of liberty.
Read MoreRK and AK v United Kingdom [2008] ECHR 38000(1)/05 (30 September 2008)
The European Court of Human Rights has held that a UK decision of a public authority to remove a child from its family, on the basis of an incorrect diagnosis, was not a breach of art 8 of the European Convention of Human Rights which provides for the right to respect for private and family life. Rather, the Court held that there was a breach of art 13, the right to an effective remedy, in that there was no adequate remedy at the national level for an incorrect diagnosis.
Read MoreSabet v Medical Practitioners Board [2008] VSC 346 (12 September 2008)
The Supreme Court of Victoria considered that the Medical Practitioners Board of Victoria was a public authority as well as a tribunal under s 4 of the Charter. The Court held that the Board did not breach a medical practitioner’s right to be presumed innocent in disciplinary proceedings determining his capacity to practice medicine.
Read MoreBAE Systems Australia Ltd (Anti-Discrimination) [2008] VCAT 1799 (11 September 2008)
VCAT has granted a restricted exemption from employment-related provisions of the Equal Opportunity Act 1995 (Vic) to a defence-related contractor, allowing the contractor to discriminate against its employees on the basis of nationality.
Read MoreR (on the application of Ross) v West Sussex Primary Care Trust [2008] EWHC B15 (Admin) (10 September 2008)
This case deals with the difficult issue of determining funding priorities in the provision of health care. In this matter, the England and Wales High Court held that the decision of a health service not to fund a relatively new cancer drug was unreasonable. The Court held that where a decision of a public authority involves a substantial interference with human rights, substantial justification is required before a court will be satisfied that the decision is reasonable.
Read MoreX v General Television Corporation Pty Ltd & Ors [2008] VSC 344 (8 September 2008)
In this case Vickery J decided that it was appropriate in a free and democratic society to temporarily curtail freedom of media expression to guarantee X the right to a fair trial.
Read MoreMG v Germany, Communication No 1482/2006, CCPR/C/93/D/1482/2006 (2 September 2008)
The Human Rights Committee has held that a court-ordered medical examination to assess the competency of a party to participate in legal proceedings violated her right to privacy under art 17 of the ICCPR. The order violated the ICCPR because the German court based its decision solely on the author’s procedural conduct and written submissions and did not hear from the author personally before making the order.
Read MoreAboushanif v Norway, Communication No 1542/2007, CCPR/C/93/D/1542/2007 (2 September 2008)
The author, Mr Aboushanif, lodged a Communication under the First Optional Protocol to the ICCPR claiming that Norway had violated his rights under art 14(5) of the Covenant. Article 14(5) states that: ‘Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.’
Read MoreR (B Mohamed) v Foreign Secretary [2008] EWHC 2048 (Admin) (21 August 2008)
The England and Wales High Court has held that the UK Government has a positive duty to take steps to ensure that a United Kingdom resident about whom the UK Government had exculpatory material had access to that material for the purpose of defending charges under the US Military Commissions Act of 2006.
Read MoreKalamiotis v Greece, Communication No 1486/2006, CCPR/C/93/D/1486/2006 (5 August 2008)
The Human Rights Committee has found that the State party breached art 2(3) (adequacy of remedy), when read with art 7 (torture and other prohibited treatment), of the ICCPR, by failing to ensure that complaints about mistreatment by police officers were adequately and satisfactorily investigated by competent authorities.
Read MoreVajnai v Hungary [2008] ECHR 33629/06 (8 July 2008)
The European Court of Human Rights held that there was a violation of art 10 of the European Convention on Human Rights when criminal proceedings were instituted against the applicant for having worn a totalitarian symbol in public.
Read MoreRS (Zimbabwe) v Secretary of State for the Home Department [2008] EWCA Civ 839 (18 July 2008)
The Court of Appeal of England and Wales has allowed an appeal by RS, a Zimbabwean national, against a decision of the Immigration Appeal Tribunal to dismiss her appeal against a decision of the Secretary of State for the Home Department to refuse to allow RS to remain in the United Kingdom for medical treatment and health.
Read MoreRaytheon Australia Pty Ltd & Ors v ACT Human Rights Commission [2008] ACTAAT 19 (24 July 2008)
The ACT Administrative Appeals Tribunal has considered the interpretative principle and permissible limitations on human rights under the Human Rights Act 2004 (ACT) in a case concerning exemptions from anti-discrimination legislation.
Read MoreR(C) v Secretary of State for Justice [2008] EWCA Civ 882 (28 July 2008)
In this case, the England and Wales Court of Appeal held that rules introduced to maintain good order and discipline in children detained in Secure Training Centres (‘STCs’) should be quashed for breach of art 3 of the European Convention on Human Rights, which prohibits torture and other ill-treatment.
Read MoreJT (Cameroon) v Secretary of State for the Home Department [2008] EWCA Civ 878 (28 July 2008)
In a recent decision informed by the interpretive principle in s 3 of the Human Rights Act 1998 (UK), the England and Wales Court of Appeal has read an additional word into a provision of the Asylum & Immigration (Treatment of Claimants etc) Act 2004 (UK) to ensure human rights compatibility. Despite there being no ambiguity in the provision, the court was willing to read in the additional word so that the provision would not offend the separation of powers doctrine and, implicitly, the right to a fair hearing.
Read MoreI v Finland [2008] ECHR 20511/03 (17 July 2008)
The European Court of Human Rights has held that the measures taken by a Finnish hospital to safeguard the right to respect for private life of an HIV-positive patient of the hospital, who was also employed by the hospital from time to time as a nurse, were inadequate and in violation of art 8 (the right to respect for private life) of the European Convention on Human Rights.
Read MoreHertfordshire Police v Van Colle [2008] UKHL 50 (30 July 2008)
In this case, the House of Lords considered the applicability of the leading right to life case, Osman v United Kingdom (1998) 29 EHRR 245, in which the European Court set out the obligations on member states in relation to the right to life.
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