Human Rights Case Summaries

Torture, Executive Accountability and the Rule of Law

Mohamed v Secretary of State for Foreign & Commonwealth Affairs [2010] EWCA Civ 65 (10 Feb 2010)

On 10 February 2010, the Court of Appeal (the Lord Chief Justice, the Master of the Rolls and the President of the Queen’s Bench presiding) published its decision in the protracted and highly publicised litigation involving Binyam Mohamed. The decision addresses a number of important legal issues that derive from the working relationship between the intelligence services of the UK and the USA, including the appropriate balance between non-disclosure and public-interest immunity, and principles of open justice. As the Chief Justice astutely concluded (at [57]), the decision also engages ‘concepts of democratic accountability and, ultimately, the rule of law itself’.

MichelleBennett10 February 2010Human Rights Law & Institutions

Human Rights and Foreign Policy: Supreme Court Considers Canada’s Obligation to Protect the Human Rights of Citizens Abroad

Canada (Prime Minister) v Khadr, 2010 SCC 3 (29 January 2010)

The Canadian Supreme Court has confirmed that Canadian officials breached Omar Khadr's right to liberty and security of the person under s 7 of the Charter of Rights and Freedoms. However, the Supreme Court held that it does not have the power to order that the Canadian Government seek Mr Khadr's repatriation from Guantanamo Bay, because such a request falls within the Canadian Government's prerogative power in foreign affairs.

MichelleBennett29 January 2010Human Rights Law & Institutions, Foreign Policy

Anonymity in Court Proceedings: Balancing the Right to Privacy and Journalistic Freedom

Guardian News and Media Ltd & Ors, Re HM Treasury v Ahmed & Ors [2010] UKSC 1 (27 January 2010)

The press challenged orders protecting the identity of the appellants from publication based on the right to freedom of expression. The appellants claimed that would breach their right to respect for private and family life.

MichelleBennett27 January 2010Privacy, Democratic Freedoms

Right to a Fair Hearing and Legal Representation in Disciplinary Proceedings

G, R (on the application of) v X School & Ors [2010] EWCA Civ 1 (20 January 2010)

The English Court of Appeal has held that proceedings that are not by themselves determinative of civil rights or obligations may still be subject to the requirements of art 6(1) of the European Convention on Human Rights where the outcome of the proceedings will have a substantial influence or effect on the determination of those rights or obligations.

MichelleBennett20 January 2010Human Rights Law & Institutions

Legality of Detention Pursuant to Prisoner Transfer Agreement when Original Trial Unfair

Orobator v HMP Holloway & Anor [2010] EWHC 58 (Admin) (20 January 2010)

In this case, the England and Wales High Court rejected a British citizen’s challenge to her detention in the UK after being convicted of drug offences in Laos. While the Court accepted that the claimant had been treated unfairly, it was not satisfied her trial and conviction in Laos amounted to a ‘flagrant denial of justice’ such as to justify her release from prison.

MichelleBennett20 January 2010Human Rights Law & Institutions

Control Orders, the Right to a Fair Hearing and Compensation for Unlawful Deprivation of Liberty

Secretary of State for the Home Department v AF [2010] EWHC 42 (Admin) (18 January 2010)

The England and Wales High Court recently held that non-derogating control orders imposed on two UK citizens under anti-terrorism legislation were void ab initio. This resulted in a more favourable damages outcome for the complainants in their litigation against the Secretary of State for the Home Department, who had imposed the orders.

MichelleBennett18 January 2010Counter-terrorism, Human Rights Law & Institutions

Safe-Injecting Rooms, Public Health and the Right to Life and Security of Person

PHS Community Services Society v Canada (Attorney General), 2010 BCCA 15 (15 January 2010)

The British Columbia Court of Appeal has held that the denial of access to health care services, including safe injecting facilities, for people with severe drug dependency may violate the rights to life, liberty and security of person

MichelleBennett15 January 2010Health

Serious Criminal Offences, Deportation and the Right to Family Life

A W Khan v United Kingdom [2009] ECHR 27(12 January 2010)

The European Court of Human Rights has held that the deportation of a convicted heroin trafficker, who had not re-offended since release from prison and had developed strong ties with a country based on long-term residency, family and children, constituted a violation of the applicant’s right to private and family life.

MichelleBennett12 January 2010Human Rights Law & Institutions

European Court Holds that Stop and Search Powers Violate Privacy and are ‘Not in Accordance with Law’

Gillan and Quinton v United Kingdom [2009] ECHR 28 (12 January 2010)

The European Court of Human Rights held that stop and search powers granted to police under the ss 44-47 of the Terrorism Act 2000 (UK) were neither sufficiently circumscribed nor subject to adequate legal safeguards against abuse. As such, the Court found the powers not to be ‘in accordance with the law’, in violation of art 8 of the European Convention on Human Rights.

MichelleBennett12 January 2010Police, Human Rights Law & Institutions

Canadian Court Declares that Prison Conditions Violate Fundamental Human Rights

Trang v Alberta (Edmonton Remand Centre), 2010 ABQB 6 (11 January 2010)

The Court of Queen’s Bench of Alberta has declared that conditions under which untried prisoners were held in Edmonton Remand Centre (‘ERC’) pending trial for conspiracy to traffic illicit drugs resulted in a breach of their right not be deprived of liberty except in accordance with the principles of fundamental justice (s 7), the right not to be subjected to cruel and unusual treatment or punishment (s 12) and the right to equality before and under the law without discrimination (s 15).

MichelleBennett11 January 2010Human Rights Law & Institutions, Prisoner Rights

European Court Delivers Judgment in Landmark Human Trafficking Case

Rantsev v Cyprus and Russia [2010] ECHR 25965/04 (7 January 2010)

In a landmark judgment the European Court of Human Rights unanimously ruled that human trafficking fell within the scope of art 4 (prohibiting slavery, servitude and forced labour) of the European Convention. The Court clarified the positive obligations upon States to investigate allegations of trafficking and to implement measures to prevent and protect people from human trafficking.

MichelleBennett7 January 2010Foreign Policy, Human Rights Law & Institutions

Does the Creation of a Tenancy or the Making of a Possession Order Engage Human Rights?

Heywood v Director of Housing [2010] R2009/36396 (4 January 2010)

In this case, the Victorian Civil and Administrative Tribunal considered the application of provisions of the Residential Tenancies Act 1997 (Vic) which provide for the creation of a tenancy and provisions which permit a landlord to apply for possession order where premises have been occupied without consent. The VCAT Member held that the relevant provisions do not engage the Charter of Human Rights and Responsibilities Act 2006 (Vic) as these provisions ‘enhance’ rights rather than limit them.

MichelleBennett4 January 2010Housing, Human Rights Law & Institutions

Freedom of Expression and Protection from Defamation: Striking the Right Balance

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.

MichelleBennett22 December 2009Democratic Freedoms, Human Rights Law & Institutions

Fox Hunting and the Right to Private Life

Friend 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.

MichelleBennett17 December 2009Privacy, Human Rights Law & Institutions

Balancing the Right to Religious Observance with the Right to Non-Discrimination

Ladele 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.

MichelleBennett15 December 2009LGBTI Rights, Discrimination & Equality, Human Rights Law & Institutions

The Right to Free Expression and the Protection of Journalistic Sources: When Can a Journalist be Compelled to Reveal their Source?

Financial 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.

MichelleBennett15 December 2009Democratic Freedoms, Human Rights Law & Institutions

Freedom from Discrimination against Same-Sex Couples in Provision of Housing

Rodriguez 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.

MichelleBennett14 December 2009Discrimination & Equality, Housing, LGBTI Rights

Homelessness and the Right to Life, Liberty and Security

Victoria (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.

MichelleBennett9 December 2009Housing

UK Supreme Court Considers whether the Right to a Fair Hearing Requires the Availability and Examination of Witnesses

R 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.

MichelleBennett9 December 2009Human Rights Law & Institutions

Right to Respect for Family Life and Equal Treatment: Fathers’ Right to Custody of a Child Born out of Wedlock

Zaunegger 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.

MichelleBennett3 December 2009Discrimination & Equality

Balancing Freedom of Expression and the Right to Privacy

BKM 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.

MichelleBennett2 December 2009Democratic Freedoms, Privacy

What is a ‘Child’? Age Determination in Asylum Applications

A, 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).

MichelleBennett26 November 2009Refugee & Asylum Seeker Rights, Child Rights

Freedom of Information and Security of Prisons

Rogers 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

MichelleBennett26 November 2009Prisoner Rights, Privacy, Democratic Freedoms

Deportation of Non-Nationals and the Right to Respect for Family Life

Omojudi 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.

MichelleBennett24 November 2009Human Rights Law & Institutions

Australia’s Obligation to Protect People from the Death Penalty

Kwok 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.

MichelleBennett23 November 2009Death Penalty, Refugee & Asylum Seeker Rights, Prisoner Rights

Equality and Public Authorities: Court Considers Exclusion of Female Ski Jumpers from Winter Olympics and Paralympics

Sagen 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.

MichelleBennett20 November 2009Discrimination & Equality

The Prohibition of Ill-Treatment and Prevention of Destitution in a Third State

EW, 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’.

MichelleBennett18 November 2009Refugee & Asylum Seeker Rights, Housing

Equality and Exemptions: VCAT Denies Exemption for Women Only Travel Tours

Travel 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.

MichelleBennett17 November 2009Discrimination & Equality

Freedom of Information under the Victorian Charter

McInnes 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.

MichelleBennett4 November 2009Privacy, Democratic Freedoms

Protesting for Animal Rights and the Right to Freedom of Expression and Assembly

Novartis 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.

MichelleBennett30 October 2009Democratic Freedoms

Right to a Fair Hearing and the Duty of the Court to Unrepresented Litigants

Russell 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.

MichelleBennett29 October 2009Human Rights Law & Institutions

Criminal Records and the Right to Privacy

R (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.

MichelleBennett29 October 2009Privacy

Equality and Exemptions: Discrimination to Promote Gender Equality in Education

Carey 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.

MichelleBennett23 October 2009Discrimination & Equality, Child Rights

Supreme Court Considers meaning of ‘Proceeding’ to Determine Application of Charter pursuant to Transitional Provisions

Secretary 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.

MichelleBennett22 October 2009Human Rights Law & Institutions

The Meaning of ‘Public Authority’ and the Application of the Charter to Non-Government Bodies

Metro 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).

MichelleBennett9 October 2009Housing, Human Rights Law & Institutions

No Longer Left in the Dark: Right to Municipal Services and the Procedural Fairness Obligations of Electricity Providers

Joseph 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.

MichelleBennett9 October 2009Human Rights Law & Institutions, Foreign Policy

The Right to Water: South African Court Considers Justiciability of Socio-Economic Rights and the Roles of Courts and Parliaments

Mazibuko 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.

MichelleBennett8 October 2009Housing, Human Rights Law & Institutions

Planning Law and the Right to a Fair Hearing

Thomson 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.

MichelleBennett2 October 2009Housing, Human Rights Law & Institutions

Equality and Exemptions: Discrimination on the Grounds of Political Activity

Victorian 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.

MichelleBennett30 September 2009Democratic Freedoms, Discrimination & Equality

Age Discrimination and Equal Opportunity Exemptions under the Victorian Charter

Lifestyle 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).

MichelleBennett22 September 2009Discrimination & Equality, Human Rights Law & Institutions

Supreme Court Considers Relevance of Conditions of Detention to Bail

Dale 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.

MichelleBennett21 September 2009Disability & Mental Health, Human Rights Law & Institutions

Freedom of Information and the Public Interest

McIntosh 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.

MichelleBennett16 September 2009Democratic Freedoms, Human Rights Law & Institutions, Police

Right to Liberty and Redress for Unlawful Detention

Morro & 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.

MichelleBennett10 September 2009Human Rights Law & Institutions, Prisoner Rights

Access to Court Fundamental to Right to Fair Hearing

Materials 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.

MichelleBennett8 September 2009Human Rights Law & Institutions

The Disability Act and the Right to Housing

Conroy 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.

MichelleBennett7 September 2009Housing, Disability & Mental Health

The Right to a Fair Hearing and the Privilege Against Self-Incrimination under the Victorian Charter

Re 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.

MichelleBennett7 September 2009Human Rights Law & Institutions

Right to Respect for Private Life and Equality in Prison

AB, 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.

MichelleBennett4 September 2009Privacy, Prisoner Rights

Supreme Court Considers Relevance of Conditions of Detention to Sentencing

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.

MichelleBennett2 September 2009Prisoner Rights, Disability & Mental Health

Interpretation and Limitation of Rights in relation to Extended Supervision of Sex Offender

Secretary 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.

MichelleBennett28 August 2009Human Rights Law & Institutions, Prisoner Rights

The Right to Life, Use of Force and Policing Protests

Giuliani 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.

MichelleBennett25 August 2009Police