Human Rights Case Summaries

Coronial Investigation of 29 Level Crossing Deaths – Ruling on the Interpretation of Clause 7(1) of Schedule 1 of the Coroners Act 2008 (Vic) (25 June 2010)

The Coroners Court has held that right to life under s 9 of the Charter of Human Rights and Responsibilities Act requires that questions as to jurisdiction and interpretation in the Coroners Court be resolved to enable inquiries to ‘address systemic and prevention issues’.

R v Conway, 2010 SCC 22 (11 June 2010)

The Supreme Court of Canada has held that administrative tribunals with the authority to apply the law, have the jurisdiction to apply the Charter to the issues that arise in the proper exercise of their statutory functions.  It has further confirmed that tribunals should play a primary role in determining Charter issues that fall within their specialized jurisdiction and that, in exercising their statutory functions, administrative tribunals must act consistently with the Charter and its values.

Gafgen v Germany [2010] ECHR 759 (1 June 2010)

The Grand Chamber of the European Court of Human Rights has found, by majority, that a threat of torture amounted to inhuman treatment, but was not sufficiently cruel to amount to torture within the meaning of the European Convention on Human Rights.  The Court also considered that the applicant remained a victim of the violation, despite limited remedial actions taken by the State party.  Further, it held that the applicant had been afforded a fair trial, because his confessions obtained by way of the breach had been excluded from evidence, even though real evidence obtained as a result of the confession evidence was not excluded.

Gonzalez v Guyana, UN Doc CCPR/C/98/D/1246/2004 (21 May 2010)

The UN Human Rights Committee has held that an undue delay in judicial proceedings to naturalize Mr Gonzalez as a citizen of Guyana constituted unreasonable and arbitrary interference with the right to family in violation of art 17(1) of the International Covenant on Civil and Political Rights.  The Committee also opined the right to a fair hearing was compromised by procedural delays in violation of art 14(1) of the ICCPR.  The delays were found to adversely affect Mr Gonzalez’s application for citizenship.

Kononov v Latvia [2010] ECHR 667 (17 May 2010)

The Grand Chamber of the European Court of Human Rights considered whether criminal law was retrospectively applied to convict Mr Kononov, in violation of art 7 of the European Convention of Human Rights.

The Grand Chamber had to assess whether, at the time of the offence, international law provided a legal basis to convict Mr Kononov for war crimes and, furthermore, whether he could he have foreseen that his actions would make him guilty of those offences.  Unless both tests were satisfied, the conviction would contravene art 7. The Grand Chamber also considered how the extension of statutory limitations should be treated under Article 7.

Michelle Dawson v Transport Accident Commission [2010] VCAT 796 (13 May 2010)

Ms Dawson was seriously injured in a car accident on 13 October 2005.  As a result of her injuries Ms Dawson received a number of therapies in accordance with her entitlements under s 60 of the Transport Accident Act 1986 (Vic), funded by the Transport Accident Commission (TAC).  After having children, Ms Dawson requested that the TAC pay for child care services to enable her to continue rehabilitation.  The TAC denied her request and Ms Dawson filed an application for review with VCAT.

Smith v Hobsons Bay City Council [2010] VCAT 668 (12 May 2010)

A recent VCAT decision establishes that a planning scheme provision limiting views into existing secluded private open space and habitable room windows is not incompatible with the Charter.  VCAT also held that a local council does not act in a way that is incompatible with the Charter when exercising its discretion to maintain, modify or delete a planning permit condition requiring the overlooking of premises to be mitigated.

Krumpholz v Austria [2010] ECHR 341 (18 March 2010)

In Krumpholz v Austria, the European Court of Human Rights held that deeming the owner of a vehicle to have committed a traffic offence (by virtue of their ownership of the vehicle) breaches the European Convention right to a fair hearing and presumption of innocence.

R v Momcilovic [2010] VSCA 50 (17 March 2010)

In a landmark decision, the Victorian Court of Appeal has unanimously held that:

• s 32(1) of the Charter is not a ‘special’ rule of statutory interpretation, but rather a statutory directive that requires all persons engaged in the task of statutory interpretation to ‘explore all possible interpretations of the provision(s) in question, and adopt that interpretation which least infringes Charter rights’;
• the issue of ‘justification’ pursuant to s 7(2) arises only if it is not ‘possible’ to interpret legislation compatibly with human rights;
• any infringement of human rights should be ‘demonstrably justified’ by clear, cogent and persuasive evidence;
• where an infringement can not be demonstrably justified, the Court should grant a Declaration of Inconsistent Interpretation, such declarations being ‘central’ to and ‘exemplifying the dialogue model of human rights legislation’.