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Publications & Resources
The UK Equality and Human Rights Commission has just released a major research report on ‘Developing a Bill of Rights for the UK’.
The report aims to ‘identify and explore best practice processes for developing a new Bill of Rights for the UK’. The report analyses evidence from related domestic and international experiences (including the ACT, [...]
The announcement that Victoria Police will conduct a trial to roll-out Tasers to all uniformed and traffic management police in Bendigo and Morwell leaves vulnerable groups at risk of greater harm.
“This announcement reflects the race to the bottom in the Victorian Government’s pre-election law and order agenda. We are seeing good, evidence-based policy being discarded [...]
This is the March 2010 edition of the Human Rights Law Resource Centre Bulletin.
Download the full edition of the Bulletin in [PDF] or [Word].
This edition of the Bulletin, which is proudly sponsored by Mallesons Stephen Jaques, includes:
An opinion piece on how Australia could set the global agenda in the area of business and human rights
Human Rights [...]
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 [...]
It is almost two years since the Rudd Government issued its historic Apology to the Stolen Generations. Polling immediately prior to the Apology indicated that it remained a contentious and potentially divisive issue, with 55 per cent of Australians supporting the Government’s decision to say sorry and 36 per cent opposed. Polling conducted in the [...]
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 [...]
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 [...]
This is the February 2010 edition of the Human Rights Law Resource Centre Bulletin.
Download the full edition of the Bulletin in [PDF] or [Word].
This edition of the Bulletin, which is proudly sponsored by DLA Phillips Fox, includes:
An opinion piece on how Australia could be a stronger force for human rights in Southeast Asia by Elaine Pearson [...]
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 [...]
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 [...]
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 [...]
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 [...]
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, [...]
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 [...]
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 [...]
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 [...]
In the course of the recent periodic review of Australia by the UN Human Rights Committee, one of the independent experts called on Australia to grasp its opportunity – and fulfil its obligation – to become a ‘AAA’ human rights state.
This paper, entitled ‘Australia, Human Rights and Foreign Policy’ (2009) 34(4) Alternative Law Journal 218, responds [...]
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 [...]
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 is the January 2010 edition of the Human Rights Law Resource Centre Bulletin.
Download the full edition of the Bulletin in [PDF].
This edition of the Bulletin, which is proudly sponsored by Allens Arthur Robinson, includes:
Opinion pieces on the right to health in Australia (by UN Special Rapporteur on the Right to Health, Anand Grover) and on [...]
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 [...]
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.
Facts
The Civil Partnership Act [...]
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 [...]
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.
Facts
The Gibraltar Housing Allocation Committee’s policy [...]
On 10 December 2009, the Centre released a paper entitled Human Rights Leadership: Initiatives to Promote Human Rights at Home and Abroad. The paper, which was provided to the Federal Government in September, proposes 20 initiatives which Australia could take to strengthen a range of normative, preventative and remedial mechanisms to protect human rights at [...]
On 8 October 2009 the National Human Rights Consultation Committee recommended that Australia enact a Human Rights Act. However, although the Consultation clearly demonstrated the right to adequate housing, health care and education are the ‘rights that matter most’ to Australians, the Committee further recommended that, if an Australian Human Rights Act enshrines social and [...]
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 [...]
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 [...]
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 [...]
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 [...]
This is the December 2009 edition of the Human Rights Law Resource Centre Bulletin.
Download the full edition of the Bulletin in [PDF].
This edition of the Bulletin, which is proudly sponsored by Mallesons Stephen Jaques, includes:
Opinion pieces on proposed police search and move on powers by Emily Howie and on exemptions from anti-discrimination legislation by Rachel Ball and Melanie [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
Equality and Exemptions: VCAT Denies Exemption for Women Only Travel Tours
Travel Sisters (Anti-Discrimination Exemption) [2009] VCAT A189/2009 (17 November 2009)
Facts
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 [...]
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 [...]
Protesting for Animal Rights and the Right to Freedom of Expression and Assembly
Novartis Pharmaceuticals UK Ltd & Ors v Stop Huntingdon Animal Cruelty (’SHAC’) & 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 [...]
This is the November 2009 edition of the Human Rights Law Resource Centre Bulletin.
Download the full edition of the Bulletin in [PDF].
This edition of the Bulletin, which is proudly sponsored by DLA Phillips Fox, includes:
An opinion piece on the National Human Rights Consultation and a Human Rights Act for Australia by the Hon Catherine Branson QC, [...]
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 [...]
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 [...]
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 [...]
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 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).
Justice Bell’s [...]
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.
Facts
The applicants [...]
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 [...]
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 [...]
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 [...]
This is the October 2009 edition of the Human Rights Law Resource Centre Bulletin.
Download the full edition of the Bulletin in [PDF].
This edition of the Bulletin, which is proudly sponsored by Allens Arthur Robinson, includes:
An opinion piece on Australia’s role in promoting human rights in Burma by Carroll Bogert, Associate Director of Human Rights Watch
News [...]
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 [...]
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 [...]
In September 2009, the HRLRC prepared a Briefing Paper on Health and Human Rights in Australia for the UN Special Rapporteur on the Right to Health, Anand Grover, in advance of his country mission to Australia in November and December 2009.
The Briefing Paper considers a range of issues regarding realisation of the right to health [...]
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 [...]
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. [...]
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 [...]
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 [...]
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 [...]
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 [...]
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.
Facts
Shane Kent was indicted with 12 [...]
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. [...]
This is the September 2009 edition of the Human Rights Law Resource Centre Bulletin.
Download the full edition of the Bulletin in [PDF].
This edition of the Bulletin includes:
An opinion piece on reconciling the rights to equality and freedom of religion by Rachel Ball, lawyer with the Human Rights Law Resource Centre
News about the new ASEAN Intergovernmental [...]
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 [...]
Governmental Obligations in Foreign Affairs and to Citizens Abroad
Canada (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 [...]
Freedom of Information and Access to the Courts
Brümmer 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 [...]
Freedom of Information, Freedom of Expression and the Charter
Smeaton 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 [...]
Assisted Suicide and Human Rights: DPP Should Issue Guidelines on Exercise of Prosecutorial Discretion
Purdy, 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 [...]
This is the August 2009 edition of the Human Rights Law Resource Centre Bulletin.
Download the full edition of the Bulletin in [PDF].
This edition of the Bulletin includes:
An opinion piece on the UN treaty body reform process by Gareth Sweeney from the International Service for Human Rights in Geneva
News about legislative measures to improve disability rights, [...]
Freedom of Religion May be Limited where Effects of Limitation are Proportionate and Justifiable
Alberta 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 [...]
Smoking Ban in High-Security Psychiatric Hospitals does not Contravene Right to Privacy
N, 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 [...]
In July 2009, the HRLRC prepared a Briefing Paper on Key Human Rights Issues in Australia for Justice Yvonne Mokgoro, Judge of the Constitutional Court of South Africa, in advance of her visit to Australia in July-August 2009.
The Briefing Paper considers a range of contemporary human rights issues in Australia, including:
the current legal and political context [...]
Legality and the Presumption against the Abrogation of Fundamental Freedoms: Control Orders Cannot Abrogate Fundamental Rights without Express Authority
Secretary 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 [...]
Proportionality and Limitations on Human Rights: Indefinite and Unreviewable Reporting Obligations Breach the Right to Privacy
JF & 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 [...]
Equal Opportunity Exemptions and Special Measures under the Charter
Hobsons 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 [...]
Rights of the Child and Minimum Sentencing Legislation
Centre 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 [...]
Freedom of Expression and Restrictions on Political Advertising
Greater 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) [...]
Supervised Treatment and Limitations on the Rights of Persons with Disability under the Charter
AC (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 [...]
Right to Privacy and Unlawfulness of Eviction into Homelessness
Homeground 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 Charter in seeking to evict a young tenant from transitional housing in accordance [...]
Freedom of Expression and the Restrictions on Advertising regarding Cruel Treatment of Animals
Verein 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 [...]
Supreme Court of Canada Balances the Right to Freedom of Religion and the Best Interests of Children
AC 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 [...]
Centre Granted Leave to Appear as Amicus Curiae in Right to Life Test Case
On 17 June, the Centre was granted leave to appear as amicus curiae in the Victorian Supreme Court in the matter of Chief Commissioner of Police v Bryant (in his capacity as Coroner).
The case concerned a coronial inquest into the death of [...]
This is the July 2009 edition of the Human Rights Law Resource Centre Bulletin.
Download the full edition of the Bulletin in [PDF].
This edition of the Bulletin includes:
An opinion piece on the relationship between human rights, the Global Financial Crisis and the UN Committee on Economic, Social and Cultural Rights review of Australia
News about a major [...]
UK Court of Appeal Considers Definitions of ‘Public Authority’ and ‘Private Act’
London & 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 [...]
Supreme Court holds that the ‘Interests’ of Mortgagors include their Right to Protection from Arbitrary Interference with the Home
Nolan 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 [...]
Freedom of Expression and the Right to Privacy: Reporting the Name of a Person Acquitted of Rape
Attorney-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 [...]
Evictions Must be Just, Equitable and Reasonable
Residents 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 [...]
Right to a Fair Hearing, Control Orders and Counter-Terrorism
Secretary 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. [...]
Application of the Charter in Planning Disputes
Swancom 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 [...]
European Court Considers State Obligations to Prevent and Address Domestic Violence
Opuz 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 [...]
Unreasonable Delay in Criminal Proceedings: Supreme Court of Canada Holds 30 Month Delay Unconstitutional
R 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 [...]
Costs in Public Interest and Constitutional Litigation
Trustees 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 [...]
Monitoring and Confidentiality of Prisoner Correspondence
Szuluk 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 [...]
This is the June 2009 edition of the Human Rights Law Resource Centre Bulletin.
Download the full edition of the Bulletin in [PDF].
This edition of the Bulletin includes:
An opinion piece on the Durban Review Conference and global and local responses to racism by Tom Calma, Australia’s Aboriginal and Torres Strait Islander Social Justice Commissioner and Race Discrimination [...]
Surveillance of Protests and the Right to Privacy
Wood 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) [...]
Vexatious Litigants and the Rights to a Fair Hearing, Access to a Court and Legal Aid
Kay 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 [...]
Right of Access to Court Imposes Positive Obligation on Courts to Inform Litigants of Rights and Entitlements
Kulikowski 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 [...]
Extraterritoriality and the Right to Life
Secretary 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 [...]
Referral of Question of Law under Victorian Charter
De 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 [...]
Detailed and Individualised Risk Assessment Required Prior to any Handcuffing of Prisoner During Hospital Visits
Faizovas, 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 [...]
Right to Legal Aid and a Lawyer of One’s Choice
Hakimi 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 [...]
Meaningful Review Necessary to Justify Continued Detention
Secretary 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 [...]
Deportation and Non-Refoulement
X 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 [...]
Right to Equality and Exemptions under the Equal Opportunity Act
YMCA – 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 [...]
House of Lords considers Right to Fair Hearing and Presumption of Innocence in Context of Confiscation Orders
R 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 [...]
Right to Privacy and Tenancy Rights
Vojnovic 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 [...]
This is the May 2009 edition of the Human Rights Law Resource Centre Bulletin.
Download the full edition of the Bulletin in [PDF].
This edition of the Bulletin includes:
An opinion piece on the right to quality education for Indigenous peoples and minority groups, by Gay McDougall, UN Independent Expert on Minority Issues
News about the recent UN [...]
UN Human Rights Committee Rules on Family Contact with Prisoners
Tornel 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 [...]
Obligations of States to Citizens Detained Abroad
Khadr v Canada (Minister for Justice) [2009] FC 405
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 [...]
Failure to Review Involuntary Treatment a Breach of Human Rights
Kracke 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.
Facts
The case concerned [...]
Canadian Supreme Court Considers Right to Privacy
R 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 [...]
This is the April 2009 edition of the Human Rights Law Resource Centre Bulletin.
Download the full edition of the Bulletin in [PDF] or [Word].
This edition of the Bulletin includes:
An opinion piece on the recent UN Human Rights Committee Review of Australia and Australia’s obligation to become a ‘AAA’ human rights player
News about the entry into [...]
Courts and Tribunals Directly Bound by Charter Rights
De Simone v Bevnol Constructions and Developments Pty Ltd (2009) (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 [...]
Human rights belong to everyone. The case studies on this page show that human rights are not just for lawyers, celebrities and criminals; they are an important tool that can help create a more just society where everyone receives a fair go. The case studies illustrate how human rights laws can be used to encourage [...]
Detention and Treatment in Government-Run ‘Sobering Up’ Centre may Amount to Ill-Treatment
Wiktorko 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 [...]
Freedom of Expression and Public Participation in Decision-Making
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 [...]
Right to Fair Hearing and Legal Representation in Disciplinary Proceedings
Lam 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:
the right to a fair [...]
Stay of Eviction into Homelessness Required to Prevent Violation of Human Dignity and Rights
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 [...]
South African Constitutional Court Considers the Right to Sufficient Water and a Dignified Life
City 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 [...]
Indefinite Detention Violates the Right to Liberty and Security of Person
Canada (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.
Facts
The Respondents are brothers Dong Zhe Li and Dong [...]
State Obligation to Conduct Public Investigation into Potential Violations of the Right to Life and Prohibition against Ill-Treatment
AM & 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 [...]
Opinion: Australia Should Set the Global Agenda on Business and Human Rights
News Items:
- Australia Moves to Comprehensively Prohibit Torture and the Death Penalty
- UN Special Rapporteur Releases Report on Northern Territory Emergency Response: Calls for Urgent Amendment to Comply with Human Rights
- Major Reports on Social Justice and Native Title Reveal More Promising Future
- [...]
Human Rights News Stories for the week ending 12 March 2010
This is the March 2009 edition of the Human Rights Law Resource Centre Bulletin.
Download the full edition of the HRLRC Bulletin in PDF here.
This edition of the Bulletin includes:
An opinion piece by Carroll Bogert, Associate Director of Human Rights Watch, on police brutality in PNG
News about human rights, climate change and Indigenous rights and a major [...]
The Universal Declaration of Human Rights was adopted by the United Nations General Assembly on 10 December 1948. The UDHR was the first international instrument recognising that fundamental rights and freedoms are inalienable and inherent to all human beings, that every one of us is born free and equal.
Dr HV Evatt, Australia’s Minister for External [...]
The Human Rights Law Resource Centre Bulletin is a monthly publication.
Each edition contains:
a human rights opinion piece;
the latest human rights news;
Victorian Charter of Human Rights developments;
casenotes on key human rights decisions from domestic, regional and international courts and tribunals;
information about the Centre’s case work, and policy, advocacy and law reform work;
details of [...]
Discrimination on the Ground of Poverty
Boulter 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 [...]
The February 2009 edition of the Human Rights Law Resource Centre Bulletin includes:
An opinion piece by Rachel Ball of the Human Rights Law Resource Centre on ‘A New Vision for Equality’
News about a proposed project to promote disability rights and ratification of the UN Disability Convention in the Pacific, and an analysis of the [...]
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).
In making its decision, the Court considered whether:
the death of the applicant’s son amounted to a breach of the [...]
The European Court of Human Rights recently found that the Government of Turkey, having ordered lawyer Ayhan Erdoðan to pay compensation for remarks that he made against a public figure during court proceedings, had breached Mr Erdoðan’s right to freedom of speech in violation of art 10 of the European Convention on Human Rights.
Article 10 [...]
The January 2009 edition of the Human Rights Law Resource Centre Bulletin includes:
An opinion piece by Andrew Hudson of Human Rights First on the UN Declaration on Human Rights Defenders
News about the UN Human Rights Committee’s forthcoming review of Australia, the adoption of an historic Optional Protocol to the International Covenant on Economic, Social and [...]
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.
Detailed [...]
The December 2008 edition of the Human Rights Law Resource Centre Bulletin includes:
Opinion pieces by John von Doussa QC (former President of the Australian Human Rights Commission) and Simon Rice (Director of Law Reform and Social Justice at the ANU College of Law) on the proposed national human rights consultation
News about Australia’s ratification of the Optional Protocol [...]
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 [...]
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 [...]
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.
Detailed case note.
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.
Detailed [...]
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.
Detailed case note.
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.
Detailed case note.
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.
Detailed case note.
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 [...]
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.
Detailed case note.
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.
Detailed case note.
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).
Detailed case note.
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 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 November 2008 edition of the Human Rights Law Resource Centre Bulletin includes:
An opinion piece by Prof Hilary Charlesworth of ANU entitled ‘60 Years On: How Universal is the Universal Declaration of Human Rights?‘
News about a major NGO Report on Australia to the UN Human Rights Committee, Australia’s proposed ratification of the Optional Protocols to the [...]
10 December 2008 marks the 60th anniversary of the Universal Declaration of Human Rights. The UDHR recognises that respect for human rights and the rule of law is the foundation of peace, justice, security and human development.
Australia played an important and constructive role in the development of this historic instrument and subsequent international human rights [...]
The Supreme Court of British Colombia in Canada has 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 [...]
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.
Detailed case note.
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.
Detailed case note.
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.
Detailed case note.
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 [...]
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.
Detailed case note.
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 [...]
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 [...]
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 [...]
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.
Detailed case note.
This case raises issues in relation to the scope of human rights and the contradictions which will necessarily exist between statutory provisions such as s 191 of the Disability Act and the Charter. It is ultimately the case that decisions made under many of these provisions will be considered under the test for demonstrably justified [...]
Attached is the October 2008 edition of the Human Rights Law Resource Centre Bulletin.
This edition of the Bulletin includes:
An opinion piece by Peter Seidel of Arnold Bloch Leibler entitled ‘Time to Get Real with the UN Declaration on the Rights of Indigenous Peoples’
News about Australia’s proposed ratification of the Optional Protocol to the Convention [...]
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 [...]
This case deals with the difficult issue of determining funding priorities in the provision of health care. In this matter, the England and Wales High Court held that the decision of a health service not to fund a relatively new cancer drug was unreasonable. The Court held that where a decision of a public authority [...]
The Human Rights Committee has held that a court-ordered medical examination to assess the competency of a party to participate in legal proceedings violated her right to privacy under art 17 of the ICCPR. The order violated the ICCPR because the German court based its decision solely on the author’s procedural conduct and written submissions [...]
The author, Mr Aboushanif, lodged a Communication under the First Optional Protocol to the ICCPR claiming that Norway had violated his rights under art 14(5) of the Covenant. Article 14(5) states that: ‘Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.’
The [...]
In this case Vickery J decided that it was appropriate in a free and democratic society to temporarily curtail freedom of media expression to guarantee X the right to a fair trial.
Detailed case note.
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.
Detailed case [...]
VCAT has granted a restricted exemption from employment-related provisions of the Equal Opportunity Act 1995 (Vic) to a defence-related contractor, allowing the contractor to discriminate against its employees on the basis of nationality.
Detailed case note.
The September 2008 edition of the Human Rights Law Resource Centre Bulletin includes:
An opinion piece by Rachel Ball of the Human Rights Law Resource Centre about ‘Making Equality Real in Australia’
News about significant announcements by the federal Attorney-General to ’strengthen human rights and the rule of law’ and major contributions to the Centre by the Legal Services [...]
The England and Wales High Court has held that the UK Government has a positive duty to take steps to ensure that a United Kingdom resident about whom the UK Government had exculpatory material had access to that material for the purpose of defending charges under the US Military Commissions Act of 2006.
Detailed case note.
The Human Rights Committee has found that the State party breached art 2(3) (adequacy of remedy), when read with art 7 (torture and other prohibited treatment), of the ICCPR, by failing to ensure that complaints about mistreatment by police officers were adequately and satisfactorily investigated by competent authorities.
Detailed case note.
The August 2008 edition of the Human Rights Law Resource Centre Bulletin includes:
An opinion piece by Paul Ronalds, Deputy CEO of World Vision, regarding the relationship between human rights, aid and development
News about Australia’s ratification of the UN Disabilities Convention, a campaign to end mandatory immigration detention, the further development of an Optional Protocol to the [...]
The European Court of Human Rights held that there was a violation of art 10 of the European Convention on Human Rights when criminal proceedings were instituted against the applicant for having worn a totalitarian symbol in public.
Detailed case note.
The Court of Appeal of England and Wales has allowed an appeal by RS, a Zimbabwean national, against a decision of the Immigration Appeal Tribunal to dismiss her appeal against a decision of the Secretary of State for the Home Department to refuse to allow RS to remain in the United Kingdom for medical treatment [...]
The ACT Administrative Appeals Tribunal has considered the interpretative principle and permissible limitations on human rights under the Human Rights Act 2004 (ACT) in a case concerning exemptions from anti-discrimination legislation.
Detailed case note.
In this case, the England and Wales Court of Appeal held that rules introduced to maintain good order and discipline in children detained in Secure Training Centres (‘STCs’) should be quashed for breach of art 3 of the European Convention on Human Rights, which prohibits torture and other ill-treatment.
Detailed case note.
In a recent decision informed by the interpretive principle in s 3 of the Human Rights Act 1998 (UK), the England and Wales Court of Appeal has read an additional word into a provision of the Asylum & Immigration (Treatment of Claimants etc) Act 2004 (UK) to ensure human rights compatibility. Despite there being no [...]
The European Court of Human Rights has held that the measures taken by a Finnish hospital to safeguard the right to respect for private life of an HIV-positive patient of the hospital, who was also employed by the hospital from time to time as a nurse, were inadequate and in violation of art 8 (the [...]
In this case, the House of Lords considered the applicability of the leading right to life case, Osman v United Kingdom (1998) 29 EHRR 245, in which the European Court set out the obligations on member states in relation to the right to life.
Pursuant to the European Court decision, states have a positive obligation to, [...]
The UK House of Lords has considered the procedural safeguards against eviction established by the right to respect for privacy and the home under art 8 of the European Convention on Human Rights.
Detailed caes note.
This case involved a dentist who was criminally charged with the indecent assault of three patients. He was acquitted of these charges but was then subjected to professional disciplinary action.
The dentist claimed that the subsequent charges by the Dental Complaints Assessment Committee were contrary to the common law principle against double jeopardy and in breach [...]
The July 2008 edition of the Human Rights Law Resource Centre Bulletin includes:
An opinion piece by the Rt Hon Malcolm Fraser AC, CH, former Prime Minister of Australia, regarding ‘Australian Foreign Policy and Human Rights’
News about the Federal Government’s proposal to ratify the Optional Protocol to the Convention on the Elimination of Discrimination against Women, [...]
In this case, concerning the failure of the Mental Health Board to conduct a review of the involuntary treatment of a patient under the Mental Health Act, a number of very significant issues arose in relation to the Charter:
1. Does the Charter apply to the proceeding and, if so, how?
2. Is the Board a [...]
The European Court of Human Rights has held that, by allowing an individual to be excluded from participating in their child’s adoption proceedings, Croatia violated its obligation to ensure the right to respect for private and family life under art 8 of the European Convention on Human Rights.
Detailed case note.
The Supreme Court of Canada has again emphasised the importance of the common law evolving in a manner that is consistent with Charter values.
This was a private law defamation case involving a controversial radio talk show host, ‘M’, and a social activist opposed to any positive portrayal of a gay lifestyle, ‘S’. M publicly likened [...]
The Supreme Court of British Columbia has held that the decisions of a Provincial Court and a public official to authorise medically-necessary blood transfusions for four infants against the express wishes of their parents did not breach the parents’ rights under the Canadian Charter of Rights and Freedoms.
Detailed case note.
The European Court of Human Rights held that there had been a violation of art 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights because the applicant’s conditions of detention were not appropriate to his state of health.
In the Court’s view, in circumstances such as these, the State should have [...]
In a significant recent decision, the Supreme Court of Canada held that proactive schemes which seek to ameliorate the conditions of disadvantaged groups do not contravene the guarantee of equality in the Canadian Charter of Rights and Freedoms. In doing so, the Court re-emphasised the Canadian Charter’s concern with substantive equality.
Detailed case note.
In this case, the House of Lords held that the use of anonymous witnesses prevented the accused from adequately examining his accusers, and thereby denied him a fair trial in accordance with both the common law and art 6(3)(d) of the European Convention on Human Rights. Further, the House of Lords held that a conviction [...]
The UK High Court of Justice has recently considered the meaning of ‘public authority’ under the Human Rights Act 1998 (UK). In this decision, Registered Social Landlords were held to be public authorities for the purposes of the Act.
Detailed case note.
The Grand Chamber of the European Court of Human Rights has held that the deportation of a youth who had spent the majority of his childhood in Austria constituted a violation of his right to respect for his family and private life.
The European Court of Human Rights has held that Poland violated its obligation to ensure a fair trial under art 6 of the European Convention on Human Rights by failing to grant legal aid to an individual in respect of civil proceedings. However, the Court held that a denial of legal aid was justified where [...]
The House of Lords held that the right to family life should be interpreted broadly, and encompass consideration of the rights of other family members, when determining an appeal against the Secretary of State’s refusal of leave to remain under s 65 of the Immigration and Asylum Act 1999 (UK).
Detailed case note.
VCAT has imposed a supervised treatment order on a man with an intellectual disability, requiring him to be kept in detention to ensure his compliance with a treatment plan – despite his willingness to consent to the plan – to reduce the risk that he could cause harm to others. The Tribunal referred to, but [...]
In this case, VCAT considered that the rights to privacy and family, and to protection of children and the family unit, were relevant to determining whether an application for an order of possession by the Director of Housing should be granted as against a single mother of four children.
Detailed case note.
This was a case regarding an application for permits to subdivide land and construct various buildings ancillary to a freeway which would involve the removal of native vegetation to the detriment of the Growling Grass Frog. During the hearing of the merits, a challenge was made to VCAT’s jurisdiction to hear the matter and submissions [...]
The June 2008 edition of the Human Rights Law Resource Centre Bulletin includes:
An opinion piece from James Welch, the Legal Director of Liberty UK, regarding a ‘Reflections on an Australian Charter of Rights from the UK’
News about the UN Committee against Torture’s recent review of Australia, announcements by the Federal Government regarding the Disabilities Convention, the [...]
The Supreme Court of Canada recently considered the validity of a rebuttable presumption that minors committing serious offences should be sentenced as adults. A majority of the Court concluded that the presumption offended against the right not to be deprived of liberty otherwise than in accordance with principles of fundamental justice under s 7 of [...]
The Supreme Court of British Columbia recently declared that laws which made safe self-injecting rooms illegal were unconstitutional and incompatible with the rights to life, liberty and security of the person in the Canadian Charter of Human Rights and Freedoms.
Detailed case note.
The England and Wales Court of Appeal has considered that scope of a child’s right to privacy in a case in which photographs of the child of a celebrity were taken and published without consent.
Detailed case note.
The European Court of Human Rights has found that the United Kingdom violated art 8 of the European Convention on Human Rights by failing to provide adequate procedural safeguards to protect the right to respect of a person’s home in the context of public housing.
Detailed case note.
A decision of the ACT Supreme Court has considered the scope of the right to family life and protection in the context of adoption proceedings.
Detailed case note.
The European Court of Human Rights has held that a Polish prisoner’s right to respect for his family life was violated by onerous visitation restrictions, which substantially prevented him from seeing his wife and son. The applicant was awaiting a final determination on a serious assault charge. Although his wife had previously made a statement [...]
The ACT Court of Appeal has held that the obligation under s 30 of the Human Rights Act 2004 (ACT) to interpret laws compatibly with human rights may be engaged even where the words of a statute are clear and there is no ambiguity. In particular, the Court held that a requirement that leave to [...]
The Victorian Civil and Administrative Tribunal has held that a government authority’s refusal to issue a commercial driver’s licence on the basis of the applicant’s history of insurance fraud did not engage the applicant’s right to freedom from double punishment under s 26 of the Victorian Charter. However, on the facts, the applicant was nevertheless [...]
In a decision regarding the review of an involuntary treatment order under the Mental Health Act 1986 (Vic), VCAT considered the application of the obligation under s 32(1) of the Charter to interpret laws consistently with human rights.
Detailed case note.
In this recent decision of the Victorian Civil and Administrative Tribunal, s 32(1) of the Charter was used to reject the previous interpretation of certain sections of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
Detailed case note.
The May 2008 edition of the Human Rights Law Resource Centre Bulletin includes:
An opinion piece regarding a ‘The Role of Human Rights Charters in Addressing Disadvantage and Improving Public Services’
News about the entry into force of the UN Convention on the Rights of Persons with Disabilities
Updates on the Victorian Charter of Rights, including information [...]
In a judgment handed down on 9 April 2008, the UK House of Lords held that the right to life protections under art 2 of the European Convention on Human Rights did not impose a duty on the UK Government to hold an independent inquiry into the legality and decision-making process behind the 2003 invasion [...]
The European Court of Human Rights has held that the right to a fair hearing requires an oral hearing which may only be dispensed of in exceptional circumstances.
Detailed case note.
In this case, the Supreme Court was asked to consider the proper construction of s 6(2)(b) of the Charter, which provides that the ‘Charter applies to courts and tribunals to the extent that they have functions under Part 2’. Part 2 of the Charter enshrines a body of civil and political rights largely derived from [...]
The April 2008 edition of the Human Rights Law Resource Centre Bulletin includes:
An opinion piece regarding a ‘Human Rights Approach to Immigration Law’ by David Manne, Co-ordinator and Principal Solicitor of the Refugee & Immigration Legal Centre
News about Australia’s increased engagement with international human rights norms and mechanisms, including the Optional Protocol to the [...]
In this case, the European Court of Human Rights considered human rights issues arising from involuntary admission and treatment on the ground of mental illness.
Detailed case note.
In an ex tempore judgment delivered by Higgins CJ, the ACT Supreme Court has stated that s 21 of the Human Rights Act 2004 (ACT) confers a positive right to a fair trial and thereby modifies the common law which merely provides for the right to be free from an unfair trial.
Detailed case note.
The European Court of Human Rights has considered a case of nuisance caused by a wind turbine, based on the right to respect for private and family life (art 8) and the right to protection of property (art 1 of Protocol No 1) of the European Convention on Human Rights.
Detailed case note.
The European Court of Human Rights held that the Russian Federation violated its positive obligation to protect the right to life under art 2 of the European Convention on Human Rights by failing to:
establish legislative and administrative frameworks to deter any threat to the right to life; and
provide an adequate judicial response following alleged [...]
In this decision, the UK House of Lords held that a ban on political advertising can be compatible with art 10 of the European Convention on Human Rights.
Detailed case note.
The applicants had been charged with terrorism-related offences under the Commonwealth Criminal Code. They applied to have the trial stayed on grounds of unfairness, arguing the conditions of their incarceration and of their transport to and from Court each trial day were increasingly affecting their capacity to properly defend the charges against them.
Detailed case note.
In a recent decision of the Supreme Court of Victoria, Habersberger J considered the extent to which the rights protected under the Victorian Charter apply to the acts and decisions of public authorities that are connected with a judicial proceeding.
Detailed case note.
In a recent decision, the Victorian Court of Appeal (Warren CJ, Vincent and Kellam JJA) considered the jurisdiction of a trial judge to make suppression orders to restrain an apprehended contempt of court. In doing so, it discussed issues that will be relevant in balancing the Charter right to freedom of expression (protected by s [...]
The March 2008 edition of the Human Rights Law Resource Centre Bulletin includes:
An opinion piece setting out a ‘Human Rights Agenda for Kevin 07 in Australia 08’ by former Australian Human Rights Commissioner, Chris Sidoti
News about the response of UN Special Rapporteurs to the apology to the Stolen Generations, together with a summary of the [...]
This decision of the South African Constitutional Court concerns whether the imprisonment of a remand prisoner in maximum security custody deprived him of liberty arbitrarily or without just cause.
Detailed case note.
The UK Court of Appeal has held that the right to freedom of expression and the media’s right to disclose the identities of convicted persons and report in the public interest may outweigh the interests of children of convicted persons and their right to privacy.
Detailed case note.
In this decision, the UK Court of Appeal held that a claim in negligence against the police for failing to protect life should have regard to the duties imposed and standards required by art 2 of the European Convention on Human Rights.
Detailed case note.
In this decision, the UK Court of Appeal found that there may be a breach of arts 5(4) and 5(1)(a) of the European Convention on Human Rights where a prisoner is detained for longer than is necessary for the protection of the public. These provisions may also be infringed where a prisoner is detained for [...]
In this case, the European Court of Human Rights considered the legality of:
1. detaining a mentally ill prisoner pending transfer to a psychiatric hospital; and
2. the length of pre-trial detention
– under arts 5(1) and 5(3)of the European Convention on Human Rights.
Detailed case note.
In a landmark judgment of the South African Constitutional Court, the Court’s key message was that human beings must be treated as such. The judgment affirms the basic principle that where people face homelessness due to an eviction, public authorities should engage seriously and in good faith with the affected occupiers with a view to [...]
The Grand Chamber of the European Court of Human Rights has recently considered the scope and application of art 7 of the European Convention on Human Rights, which provides that no person shall be subject to a ‘heavier penalty than the one that was applicable at the time the criminal offence was committed’.
Detailed case note.
The ACT Supreme Court has missed an opportunity to consider the meaning of the right to a fair hearing in s 21(1) of the Human Rights Act 2004 (ACT) in the context of an application for adjournment of a civil matter based on reasons including lack of legal representation.
Detailed case note.
The UK Court of Appeal has held that the Parole Board does not possess the necessary independence required by art 5(4) of the European Convention on Human Rights. This decision may be relevant to a determination under s 24 of the Victorian Charter as to whether a court or tribunal is ‘competent, independent and impartial’.
Detailed [...]
The Victorian Civil and Administrative Tribunal has allowed an application to reconstitute the Tribunal, on the basis that a respondent to the proceedings would not receive a fair hearing before a particular Tribunal Member. The Tribunal’s decision stated that the Charter has reinforced the positive duty of courts and tribunals to provide assistance to litigants [...]
The February 2008 edition of the Human Rights Law Resource Centre Bulletin includes:
An opinion piece about the Victorian Charter of Human Rights by the Hon Rob Hulls MP, Deputy Premier and Attorney-General for Victoria
News about a major UK report on human rights and improved public services and a new UN post to address violence [...]
In February 2008, the HRLRC, together with the National Association of Community Legal Centres and Rights Australia, prepared a Briefing Paper on Key Human Rights Issues in Australia for Gay McDougall, UN Independent Expert on Minority Issues and Chair of the Coordinating Committee on UN Human Rights Council Special Procedures, in advance of her visit [...]
The Grand Chamber of European Court of Human Rights in E.B. v France held that the refusal to authorise an adoption application by a woman in a same-sex relationship, on the basis of her sexuality, amounted to a violation of arts 14 and 8 of the European Convention on Human Rights.
Detailed case note.
In a significant decision, the Supreme Court of Victoria has outlined the nature and scope of the principle of ‘equality of arms’ as an aspect of the right to a fair hearing. While the Court held that the Victorian Charter did not apply to the proceeding (as it was commenced prior to the entry into [...]
In the first decision to substantively consider the Victorian Charter of Human Rights since it became justiciable on 1 January 2008, Bongiorno J has held that the Charter guarantees the right to a timely trial and that the appropriate remedies for failure of the Crown to provide such a trial are release of the accused [...]
The January 2008 edition of the Human Rights Law Resource Centre Bulletin includes:
An opinion piece about Australia’s human rights policy by Kenneth Roth, Executive Director of Human Rights Watch
News about the UN Committee against Torture’s recent General Comment and a generous donation to the Centre by the Helen Macpherson Smith Trust
Updates on the [...]
The UK Court of Appeal has held that the right to life includes a positive obligation to actively safeguard life and that the negligent failure of a psychiatric hospital to take adequate steps to prevent the suicide of a patient amounted to a violation of that patient’s right to life.
Detailed case note.
The European Court has held that public authorities have a particular duty and responsibility for the health and well-being of those in its custody or detention. The Court further held that a failure to provide adequate mental health care to detainees in circumstances which do not adequately accommodate, or which result in the deterioration of, [...]
On 4 December 2007, the Grand Chamber of the European Court of Human Rights handed down it’s decision in Dickson v The United Kingdom, a case concerning prisoners’ access to artificial insemination facilities.
The applicants complained that the refusal by the Secretary of State to allow the first applicant access to artificial insemination facilities whilst in [...]
The December edition of the Human Rights Law Resource Centre Bulletin (the 20th edition!) includes:
An opinion piece about Australia’s withdrawal from a review by the UN Committee against Torture
News about significant contributions to the Centre by DLA Phillips Fox and the R E Ross Trust
Information about a range of resources and events associated [...]
The European Court of Human Rights recently held that the imprisonment of a journalist for refusing to disclose the identity of a confidential source constituted a violation of the right to freedom of expression under art 10 of the European Convention on Human Rights.
Detailed case note.
The Queen’s Bench Division of the UK High Court has considered whether handcuffing two sick prisoners during treatment violated their right to freedom from cruel, inhuman or degrading treatment under art 3 of the European Convention on Human Rights.
Detailed case note.
In a judgment handed down on 15 November 2007, the European Court of Human Rights held that a state’s failure to adequately protect a person from defamation amounted to a breach of art 8 of the European Convention on Human Rights, which enshrines the right to respect for private and family life. The judgment also [...]
The European Court of Human Rights in Oganova v Georgia found that, generally, the right to a fair hearing implies the right to an oral hearing but that, in certain special circumstances, it may be permissible for an appellate court to determine a matter by written submissions in the interests of the efficient administration of [...]
In Gault v United Kingdom, the European Court of Human Rights held that the detention of Ms Lesley Gault pending re-trial violated art 5(1)(c) of the European Convention on Human Rights. Relevantly, the Court held that, pursuant to art 5(1)(c), the proximity or imminence of a trial does not justify pre-trial detention that would not [...]
The European Court of Human Rights has recently considered the content and application of the rights to freedom of peaceful assembly and association, holding that ‘the right to freedom of assembly is a fundamental right in a democratic society’ and that any exceptions to the right ‘must be narrowly interpreted and the necessity for any [...]
The Grand Chamber of the European Court of Human Rights has considered the nature and scope of art 14 of the European Convention on Human Rights, which enshrines the right to non-discrimination and the equal enjoyment of human rights. The Grand Chamber held that the education policy in the Czech Republic, which resulted in the [...]
This decision considered the extent to which it is permissible for a state to limit the right to freedom of peaceful assembly and association in the context of a public demonstration.
Detailed case note.
In sentencing a young offender found guilty of murder, Bell J of the Supreme Court of Victoria had regard to international human rights principles, including the rights of the child under the Convention on the Rights of the Child, in the exercise of his sentencing discretion.
Detailed case note.
Full text decision: www.austlii.edu.au/au/cases/vic/VSC/2007/489.html
The November 2007 edition of the Human Rights Law Resource Centre Bulletin includes:
An opinion piece by Vickie Roach, an Indigenous woman who won back the right to vote for over 8000 prisoners in the High Court
An analysis of the High Court’s reasons in Roach v Electoral Commissioner, which established the constitutional protection of the right [...]
The European Court of Human Rights has held that the eviction of a woman from public housing in circumstances where the public authority had not ensured that she had adequate alternative housing constituted a violation of the right to respect for private life and the home.
Detailed case note.
In a judgment handed down on 31 October 2007, the House of Lords held that obligations imposed on six men under control orders made by the Secretary of State under the Prevention of Terrorism Act 2005 (UK) (’PTA’), deprived those men of their liberty in violation of art 5 of the European Convention on Human [...]
To what extent is it acceptable to limit the right to freedom of expression to protect a person’s reputation? A recent decision of the Grand Chamber of the European Court of Human Rights, Lindon v France, considers the question.
Detailed case note.
The European Court of Human Rights has held that judicial decisions in defamation proceedings brought against a Moldovan newspaper interfered with its right to freedom of expression, and more specifically its right to disseminate public opinion on a matter of public interest. The decision addressed the permissible limitations on the right to freedom of expression [...]
The October 2007 edition of the Human Rights Law Resource Centre Bulletin includes:
An opinion piece by Federal Human Rights Commissioner, Graeme Innes AM, on same-sex entitlements
News regarding the Centre’s victory in the High Court for prisoners’ voting rights
Information about the recently adopted UN Declaration on the Rights of Indigenous Peoples
A summary of [...]
In a decision regarding mandatory immigration detention, the UN Human Rights Committee has elucidated its jurisprudence on the content and application of art 9 of the ICCPR, the right to liberty and security of person and to be free from arbitrary detention.
Detailed case note.
Three recent cases from the European Court of Human Rights consider the principles to be applied in determining whether continued detention is lawful. This case note considers the potential impact of these decisions on the interpretation of ss 21(5) and (6) of the Charter of Human Rights and Responsibilities Act 2006 (Vic).
Detailed case note.
Three recent cases from the European Court of Human Rights consider the principles to be applied in determining whether continued detention is lawful. This case note considers the potential impact of these decisions on the interpretation of ss 21(5) and (6) of the Charter of Human Rights and Responsibilities Act 2006 (Vic).
Detailed case note.
Three recent cases from the European Court of Human Rights consider the principles to be applied in determining whether continued detention is lawful. This case note considers the potential impact of these decisions on the interpretation of ss 21(5) and (6) of the Charter of Human Rights and Responsibilities Act 2006 (Vic).
Detailed case note.
In this case, the applicant, a man with chronic schizophrenia, was subjected to the practices of restraint and seclusion while detained. The applicant successfully complained to the European Court of Human Rights of violations of art 3 (prohibition on cruel, inhuman or degrading treatment or punishment) and art 5 (right to liberty and security of [...]
The European Court of Human Rights has held that the right to a fair hearing subsumes a right of access to a court and that a requirement to pay substantial court fees to file or proceed with a claim may constitute a violation of that right.
Detailed case note.
A recent decision of the England and Wales High Court considered whether the Parole Board had the necessary independence required by art 5(4) of the European Convention on Human Rights and may be relevant to a determination under s 24 of the Victorian Charter as to whether a court or tribunal is ‘competent, independent and [...]
In a very significant decision, the Supreme Court of Victoria has considered the relevance and application of the human rights to equality before the law, access to justice and the right to a fair hearing under the ICCPR to the right to a fair trial under Victorian law and the obligations of the court to [...]
The September 2007 edition of the Human Rights Law Resource Centre Bulletin includes:
‘Eureka! The Government Wins Again’ – an opinion piece by Julian Burnside QC
News regarding the Australian Government’s reports to the UN under the ICCPR and the ICESCR
A case note on a recent Victorian Supreme Court decision which considered the right to [...]
In an important decision regarding the nature and scope of the right to equality before the courts, the UN Human Rights Committee has found Australia in violation of art 14(1) of the International Covenant on Civil and Political Rights.
Detailed case note.
The August 2007 edition of the Human Rights Law Resource Bulletin includes:
‘Indigenous Rights 40 Years On’ – an opinion piece by Ben Schokman of the Human Rights Law Resource Centre
News regarding the Centre’s pro bono output (which has just topped $2.5 million!) and a call for financial support and donations
A report on the [...]
The European Court of Human Rights has held that the medical treatment of a prisoner within a remand centre and prison hospital was inadequate and that failure to treat him as an inpatient at a hospital where he could receive the necessary neurological and hyperbaric oxygen treatment amounted to a violation of the prohibition on [...]
The European Court of Human Rights has considered two cases in which it held that the relevant State party had interfered with the right to freedom of peaceful assembly in art 11 of the European Convention of Human Rights. That right is protected by s 16(1) of the Victorian Charter. In both cases, domestic law [...]
This case concerned the investigative duties imposed upon authorities by art 2 of the European Convention on Human Rights (the right to life) following the injury or death of an individual whilst in custody. In particular, the case turned on whether an obligation to carry out an ‘enhanced investigation’ was subject to a threshold test [...]
The European Court of Human Rights has considered two cases in which it held that the relevant State party had interfered with the right to freedom of peaceful assembly in art 11 of the European Convention of Human Rights. That right is protected by s 16(1) of the Victorian Charter. In both cases, domestic law [...]
The July 2007 edition of the Human Rights Law Resource Bulletin includes:
‘Righting Australia’s National Housing Crisis’ – an opinion piece by Kristen Hilton of the PILCH Homeless Persons’ Legal Clinic
News regarding the Centre’s development of a new project to resource and support NGO engagement with UN human rights bodies
News about the establishment of [...]
We are proud to present the Human Rights Law Resource Centre’s inaugural Yearbook for 2006/07.
The Yearbook is divided into four sections.
Section 1 of the Yearbook provides an overview of some of the significant human rights issues and challenges that have confronted Australia during 2006/07. Many of these issues have been at the core of social [...]
The European Court of Human Rights has held that pre-trial custody will only be lawful if there are ‘relevant and sufficient’ grounds for detaining a person. Prolonged pre-trial detention must be regularly reviewed and will only be justifiable in exceptional circumstances.
Detailed case note.
In a judgment handed down on 12 June 2007, the European Court of Human Rights held that particular strip searches conducted on the applicant violated the prohibition on degrading treatment in art 3 of the European Convention on Human Rights (‘ECHR’). Further, certain restrictions placed on the applicant’s correspondence violated the right to privacy protected [...]
Two recent decisions of the European Court of Human Rights regarding the scope and content of art 6 of the European Convention on Human Rights have confirmed that the right to a fair hearing subsumes a right of access to the courts.
Detailed case note.
The scope and application of the right to freedom of expression in a commercial context has recently been considered by the UK Court of Appeal and the Supreme Court of Canada. While neither court recognised a ‘corporate right’ to freedom of expression, both cases held that the right may be engaged by expression about commercial [...]
The scope and application of the right to freedom of expression in a commercial context has recently been considered by the UK Court of Appeal and the Supreme Court of Canada. While neither court recognised a ‘corporate right’ to freedom of expression, both cases held that the right may be engaged by expression about commercial [...]
Two recent decisions of the European Court of Human Rights regarding the scope and content of art 6 of the European Convention on Human Rights have confirmed that the right to a fair hearing subsumes a right of access to the courts.
Detailed case note.
The June 2007 edition of the Human Rights Law Resource Bulletin includes:
‘Safeguarding the Crown Jewels: The Need for Effective UN Human Rights Experts’ – an opinion piece by Andrew Hudson of Human Rights First in New York
News regarding the development of an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights
News [...]
The UK House of Lords has delivered a much anticipated judgment regarding the meaning of ‘functions of a public nature’ and ‘public authority’ under the Human Rights Act 1998 (UK). The case concerns the issue as to whether a private care home is providing functions of a public nature, with a majority of the House [...]
The European Court of Human Rights has held that serious allegations of torture or other cruel, inhuman or degrading treatment or punishment must be the subject of expeditious, effective and independent investigation. It has further held that evidence of ill-treatment, particularly of persons in custody, will give rise to a rebuttable presumption that the ill-treatment [...]
This decision of the England and Wales High Court concerned an application for judicial review – on the basis of interference with the right to private and family life - of a compulsory acquisition order made by the London Development Authority, and confirmed by the Secretary of State for Trade and Industry, for the purpose of [...]
The UK Court of Appeal has held that a delay in determining eligibility for parole may amount to arbitrary and unlawful detention.
Detailed case note.
The Supreme Court of New Zealand has recently considered the extent to which privacy limits freedom of expression in the context of the Bill of Rights Act 1990 (NZ).
Detailed case note.
The European Court of Human Rights has found that Poland violated its obligations to protect the right to freedom of assembly as a result of a failure to facilitate and accommodate a protest regarding discrimination against minority groups.
Detailed case note.
The incarceration in prison of a person with a severe psychiatric illness may amount to a violation of the Victorian Charter of Human Rights, according to Bongiorno J of the Supreme Court of Victoria.
Detailed case note.
The full text decision is available at http://www.austlii.edu.au/au/cases/vic/VSC/2007/142.html.
The May 2007 edition of the Human Rights Law Resource Bulletin includes:
‘Australian Government must Get Serious About UN Human Rights Reporting’ – an opinion piece by Annie Pettitt of the National Association of Community Legal Centres
News regarding Australia’s signature of the UN Disability Convention and Federal Labor’s commitment to an inquiry into the need [...]
In a judgment handed down on 19 April 2007, the Grand Chamber of European Court of Human Rights considered the scope of the right to a fair hearing in the context of civil proceedings, with particular reference to the acceptable length of proceedings and the necessity of an oral hearing.
Detailed case note.
The UK Court of Appeal has held that the right to life imposes a positive obligation on responsible authorities to take reasonable steps to safeguard the lives of those in their jurisdiction as against known and immediate risks.
Detailed case note.
The claimant was the subject of hospital and restriction orders under the Mental Health Act 1983 (UK). The Mental Health Review Tribunal reviewed the claimant’s position and subsequently ordered the claimant’s discharge under s 73 of the Act on the condition that, amongst other things, the claimant ’shall comply’ with medication prescribed by a specified [...]
The UK High Court of Justice has quashed a decision by the Minister for Legal Aid to refuse the family of two people killed in a train crash funding to be legally represented at the coroner’s inquest. Central to the decision was the finding that funding was necessary to carry out an effective investigation into [...]
The European Court of Human Rights has held that a public college which monitored an employee’s telephone, email and internet usage without her knowledge engaged in conduct amounting to an interference with her right to respect for private life and correspondence within the meaning of art 8 of the European Convention.
Detailed case note.
The April 2007 edition of the Human Rights Law Resource Bulletin includes:
‘Human Rights are Common Sense’ – an opinion piece on the likely impacts and implications of the Victorian Charter of Rights
A summary and analysis of the recently adopted General Comment No 10 of the UN Committee on the Rights of the Child in [...]
The UK Court of Appeal has held that the requirement under the Human Rights Act 1998 (UK) that, so far as it is possible to do so, legislation be interpreted and applied compatibly with human rights required that legislation which, on its natural meaning imposed a burden on defendants to establish their innocence, be read [...]
In a series of recent cases, the European Court of Human Rights has found conditions of detention in prisons to be incompatible with the prohibition of torture and other cruel, inhuman or degrading treatment or punishment enshrined in art 3 of the European Convention on Human Rights.
Detailed case note on the cases of Andrey Frolov [...]
The March 2007 edition of the Human Rights Law Resource Bulletin includes:
‘Activism is not a Dirty Word’ – an opinion piece about the importance of law reform and legal activism by Hugh de Kretser, Executive Director of the Federation of Community Legal Centres
Information about the new DLA Phillips Fox Human Rights Lawyer
A summary of [...]
The Australian Government should urgently reconsider key aspects of its counter-terrorism laws to bring them into conformity with international human rights standards, a UN report on human rights and counter-terrorism in Australia which was tabled before the UN Human Rights Council in Geneva on 26 March 2007 has found.
The Centre has prepared a Summary of [...]
On 23 February 2007, the Supreme Court of Canada overturned provisions of the Immigration and Refugee Protection Act 2001 (Can) relating to the detention of permanent residents and foreign nationals on the basis that the provisions contravened the Canadian Charter of Rights and Freedoms. The Canadian Parliament was given one year to rewrite the IRPA [...]
The February 2007 edition of the Human Rights Law Resource Bulletin includes:
An opinion piece about the relationship between democracy and Charters of Rights by Dr Helen Szoke and Matthew Carroll of the Victorian Equal Opportunity and Human Rights Commission
Information about the UN Human Rights Committee’s draft General Comment on the Right to a Fair Hearing [...]
In February 2007, the HRLRC, together with the National Association of Community Legal Centres and Rights Australia, prepared a Briefing Paper on Key Human Rights Issues for Sir Nigel Rodley of the UN Human Rights Committee. Sir Nigel visited Australia from 22 – 28 February 2007.
The Briefing Paper considers a range of contemporary human rights [...]
Supreme Court of Victoria Considers Right to Legal Counsel under Charter of Human Rights – ss 6, 7, 4, 25, 49(2).
Detailed case note.
The full text decision is available at http://www.austlii.edu.au/au/cases/vic/VSC/2007/2.html.
The January 2007 edition of the Human Rights Law Resource Bulletin includes:
An opinion piece about Ruddock’s recent criticism of pro bono ‘advocacy’ by Brian Walters SC
Information about the new UN Convention on the Rights of Persons with Disabilities
A statement by the UN High Commissioner for Human Rights on human rights and poverty
Information [...]
The ACT Supreme Court has recently considered the application of s 30(1) of the Human Rights Act 2004 (ACT), which provides that, ‘In working out the meaning of a Territory law, an interpretation that is consistent with human rights is as far as possible to be preferred.’ The Victorian Charter of Human Rights and Responsibilities [...]
The December 2006 edition of the Human Rights Law Resource Bulletin includes:
An opinion piece about Australia and the death penalty by the Hon John von Doussa QC;
Information about new resources on the Victorian Charter of Human Rights and the UK Human Rights Act;
A casenote on the first case to reference the Victorian Charter [...]
The European Court of Human Rights has found a violation of art 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights on account of the authorities’ failure to provide a prisoner with medical care appropriate to his conditions.
Detailed case note.
On 13 November 2006, the UN Human Rights Committee further elaborated on what constitutes arbitrary detention for the purposes of art 9(1) of the ICCPR, finding that there must be ‘appropriate justification’ for continued mandatory detention in light of the circumstances of the particular case. It further re-affirmed its view that, pursuant to art 9(4), [...]
The November 2006 edition of the Human Rights Law Resource Bulletin includes:
An opinion piece on the importance of amending equal opportunity legislation to prohibit discrimination on the grounds of homelessness, unemployment, poverty or irrelevant criminal record;
Information about a new and useful guide to the UK Human Rights Act;
A case note on a recent [...]
Urging or Supporting Unfair Trial of David Hicks may Constitute a War Crime
In November 2006, a group of eminent Australian lawyers prepared an Opinion about the continued detention of David Hicks in Guantanamo Bay and his proposed trial by a Military Commission. The Opinion has potentially alarming implications for the Federal Government and its Ministers.
In essence, [...]
The October 2006 edition of the Human Rights Law Resource Bulletin includes:
An opinion piece on the Court of Appeal decision in the Jack Thomas case;
Commentaries on the one-year review of the ACT Human Rights Act and the five-year review of the UK Human Rights Act;
Case notes on recent human rights decisions from the [...]
The ACT Supreme Court has recently considered the relevance of the right to a fair trial under s 21 of the Human Rights Act 2004 (ACT) to the extension of time limits in civil proceedings.
Detailed case note.
Extended supervision of convicted sex offender – Limitations on human rights under s 7
Detailed case note.
The full text decision is available at http://www.austlii.edu.au/au/cases/vic/VSCA/2006/199.html.
The September 2006 edition of the Human Rights Law Resource Bulletin contains articles about:
A human rights approach to public policy by the Hon Elizabeth Evatt;
The Victorian Court of Appeal’s decision in Jack Thomas’s appeal against conviction for terrorist-related offences;
A recent determination by the UN Human Rights Committee in relation to Australia’s policy of [...]
In this decision, the UN Human Rights Committee found Australia in breach of the right to freedom of expression and commented on the human rights implementation obligations of States and Territories.
Detailed case note.
The August 2006 edition of the Human Rights Law Resource Bulletin includes articles about:
‘Judging Economic, Social and Cultural Rights’ – an opinion piece by Waleed Aly about the need for an Optional Protocol to the International Covenant on Economic, Social and Cultural Rights;
The historic enactment of the Victorian Charter of Human Rights and Responsibilities;
The [...]
Professor Larissa Behrendt, ‘Achieving Social Justice for Indigenous Australians’
Brian Walters SC, ‘Indigenous Peoples and the Right to Self-Determination’
Mark Leibler AC, ‘Achieving Social Justice for Indigenous Australians’
This decision of the UN Human Rights Committee concerns Australia’s policy of mandatory immigration detention.
Detailed case note.
Volume 3 of of the Human Rights Law Resource Bulletin includes articles about:
‘Torturing rights at home and abroad’ – an opinion piece by Waleed Aly about the detention of David Hicks, asylum seekers and terrorist accused;
Funding for the Human Rights Law Resource Centre;
The pending visit to Australia of the UN Special Rapporteur on Adequate Housing; [...]
This memorandum examines:
the nature of the right to be free from arbitrary detention under article 9(1) of the ICCPR; and
the extent to which freedom from arbitrary detention is a right protected by customary international law.
Where the UN Human Rights Committee establishes that a breach under the International Covenant on Civil and Political Rights has occurred, it will generally make recommendations as to what “effective remedy” a State party should provide, pursuant to art 2(3) of the ICCPR.
This memorandum considers what ‘effective remedies’ the HRC has recommended where it has found a breach [...]
This case concerned the right of a child to a fair trial without unreasonable delay under the Human Rights Act 2004 (ACT). After considering jurisprudence from the European Court of Human Rights, the Magistrate held that there had been an unreasonable delay contrary to the human right enshrined in the Act and ordered a permanent [...]
Volume 2 of the Human Rights Law Resource Bulletin includes articles about:
The value of the legislative entrenchment of economic, social and cultural rights;
Rev Tim Costello’s call for a human rights approach to human development;
A recent UN Human Rights Committee ruling in relation to the human rights of an Indigenous man with a mild intellectual disability [...]
This memorandum discusses the customary international law prohibition on states encouraging or condoning third party breaches of international human rights law.
This memorandum discusses the uses and relevance of international ’soft’ law instruments, such as declarations, standards, guidelines and resolution, in Australian domestic law and courts.
This memorandum provides an overview of the status of customary international law in Australia, as well as commenting on the position in the United Kingdom, Canada and New Zealand.
This memorandum considers the role and relevance of international human rights law to the exercise of judicial discretion, in particular the sentencing discretion.
This memorandum considers some of the international human rights law and jurisprudence relevant to the rights, freedoms, conditions and treatment of people in detention.
This memorandum considers some of the international human rights mechanisms available to seek remedies for violations of prisoners’ rights, including the UN Human Rights Committee and various of the UN Special Rapporteurs.
This memorandum considers the procedures and mechanisms available in Australia to enable human rights and legal organisations to intervene in litigation to promote human rights.
This memorandum considers the relationship between international human rights law and Australian domestic law, and the potential uses of international human rights norms in domestic courts and tribunals.
Volume 1 of the Human Rights Law Resource Bulletin includes articles on:
the need for and establishment of the Human Rights Law Resource Centre Ltd;
a case note on an April 2006 decision of the Victorian Court of Appeal which examines the relationship between domestic law and international human rights law;
prisoners and the human right to vote; [...]
In March 2006, the UN Human Rights Committee (’HRC’) published a landmark finding concerning alleged breaches of articles 2(3) (right to an effective remedy), 7 (right to freedom from cruel, inhuman or degrading treatment or punishment), 10 (rights of persons deprived of their liberty) and 24 (right to adequate protection for children) of the International [...]
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