R 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.
Read MoreHomeground 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.
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