Human Rights Case Summaries

Webster v R [2010] EWCA Crim 2819 (01 December 2010)

The recent decision of the England and Wales Court of Appeal in Webster v R provides guidance concerning:

• the interpretation of the right to a ‘Fair Hearing’ under s 24 of the Charter of Human Rights and Responsibilities Act 2006 (Vic);
• the interpretation of the right to be presumed innocent until proven guilty under s 25(1) of the Charter;
• the operation of the requirement that all statutory provisions be interpreted in a manner compatible with human rights under s 32(1) of the Charter; and
• when a right can be justifiably limited under s 7 of the Charter.

DPP v Piscopo [2010] VSC 498 and DPP v Rukandin [2010] VSC 499 (12 November 2010)

The recent decisions in DPP v Piscopo [2010] VSC 498 and DPP v Rukandin [2010] VSC 499 provide further guidance concerning alcohol testing enforcement.  The two separate judgements, delivered simultaneously by Kyrou J, contain identical legal reasoning dealing with ss 49(1)(e), 55(1) and 55(9A) of the Road Safety Act 1986 (Vic).  The Court concluded that where police request a motorist to accompany them for the purpose of furnishing a sample of breath or blood, the motorist must be informed that they have to remain until that sample has been taken or until three hours after driving, whichever is sooner.

DPP v Ali & Anor (No 2) [2010] VSC 503 (10 November 2010)

The Supreme Court of Victoria (Hargrave J) recently considered the operation of the Charter of Human Rights and Responsibilities Act 2006 (Vic) in relation to an application to forfeit a family home that had been used in connection with a criminal offence.

The Attorney-General and the Victorian Equal Opportunity and Human Rights Commission both intervened to make submissions on the Charter issues.

Wells v The Queen (No 2) [2010] VSCA 294 (4 November 2010)

The Court of Appeal dismissed this interlocutory criminal appeal.  The applicant in part sought a permanent stay of a criminal trial on the basis that the Charter rights relating to criminal proceedings (ss 24 and 25) were breached.  In dismissing the appeal, the Court of Appeal commented that it would rarely entertain Charter arguments in interlocutory appeals, due to their complexity and the prospect of causing delays in criminal trials.

Road Accident Fund and Another v Mdeyide [2010] ZACC 18 (30 September 2010)

The Constitutional Court of South Africa has held that an inflexible 3-year time limit for lodging a claim for personal injuries sustained in a transport accident is a justified limitation on the right to access courts, which is protected by s 34 of the South African Bill of Rights.

Bedford v Canada, 2010 ONSC 4264 (28 September 2010)

In September 2010, the Superior Court of Justice of Ontario (Canada) struck down ss 210, 212(1)(j) and 213(1)(c) of the Criminal Code, which criminalised certain aspects of sex work, on the basis that they violated the right to security of the person and, in the case of s 213(1)(c), the freedom of expression.  According to the Court, the impugned provisions endangered the lives of sex workers and forced them to choose between their right to liberty and their right to security of the person, in violation of the Canadian Charter of Rights and Freedoms.

McFarlane v Ireland [2010] ECHR 1272 (10 September 2010)

In a decision of the Grand Chamber of the European Court of Human Rights, Ireland was held by twelve votes to five to be in breach of the right to have a hearing within a reasonable time under art 6 § 1 and the right to an effective remedy under art 13 of the European Convention of Human Rights.  The Grand Chamber awarded the applicant €5,500 in non-pecuniary damages and €10,000 in costs and expenses.

De Simone v Bevnol Constructions and Developments Pty Ltd & Ors [2010] VSCA 231 (10 September 2010)

The Victorian Court of Appeal has declined to answer a question of law referred to it by the Victorian Civil and Administrative Tribunal under s 33(1) of the Charter on the basis that VCAT had not determined the merits of the application before it, and accordingly, the question was purely hypothetical.

  Director of Public Transport v XFJ [2010] VSC 319 (29 July 2010)

The Victorian Supreme Court has affirmed the importance of a broad approach to the construction of human rights in the Charter, including appropriate reliance on international human rights law and comparative jurisprudence.

Quinn v Overland [2010] FCA 799 (28 July 2010)

The Federal Court of Australia has found that there is a serious issue to be tried that s 20(3)(c) of the Public Administration Act 2004 (Vic) (‘the PA Act’) places a statutory duty on public sector employers to conform with ‘public sector employment principles’.  Although not directly relevant to this case, s 8(ca) of the PA Act defines public sector employment principles to include ‘employment processes that will ensure that… human rights as set out in the Charter of Human Rights and Responsibilities are upheld’.  This decision also supports the view that employment policies established for the purpose of s 8(ca) constitute statutory duties that must be upheld by public sector employers.