Machele 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.
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.
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