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01. Access to Justice/Fair Hearing
Balancing the Right to Freedom of Expression and the Right to a Fair Trial
Toronto Star Newspapers Ltd v Canada, 2010 SCC 21 (10 June 2010)
Legislation providing for mandatory publication bans on bail application hearings was upheld by the Supreme Court of Canada as a reasonable compromise between protecting the accused person’s right to a fair [...]
Freedom of Expression and the Protection of Journalistic Sources: When Can a Journalist be Compelled to Reveal their Source?
R v National Post, 2010 SCC 16 (7 May 2010)
In this case, the Canadian Supreme Court found that the guarantee of freedom of expression in s 2(b) of the Canadian Charter of Rights and Freedoms (Canadian Charter) [...]
Threat of Torture during Interrogation Amounts to Inhuman Treatment
Gafgen v Germany [2010] ECHR 759 (1 June 2010)
The Grand Chamber of the European Court of Human Rights has found, by majority, that a threat of torture amounted to inhuman treatment, but was not sufficiently cruel to amount to torture within the meaning of the European Convention [...]
Victorian Supreme Court Adopts Narrow View of Right to Privacy and Eschews International Jurisprudence
WBM v Chief Commissioner of Police [2010] VSC 219 (28 May 2010)
This case raises the rights to privacy (s 13) and freedom from retrospective punishment (s 27), interpretation of legislation (s 32) and declarations of inconsistency (s 36) under the Charter.
Summary
In August [...]
Protection of the Family and the Right to Determination of Status without Unreasonable Delay
Gonzalez v Guyana, UN Doc CCPR/C/98/D/1246/2004 (21 May 2010)
The UN Human Rights Committee has held that an undue delay in judicial proceedings to naturalize Mr Gonzalez as a citizen of Guyana constituted unreasonable and arbitrary interference with the right to family in [...]
Right to Family and Protection of Children Relevant to Sentencing of Parent
R v Ashman [2010] ACTSC 45 (21 May 2010)
In this case, the ACT Supreme Court recognised that the right to family and the best interests of children under the Human Rights Act 2004 (ACT) may be relevant to the sentencing of a parent or [...]
Conviction for War Crimes Not a Violation of the Prohibition against Punishment without Law
Kononov v Latvia [2010] ECHR 667 (17 May 2010)
The Grand Chamber of the European Court of Human Rights considered whether criminal law was retrospectively applied to convict Mr Kononov, in violation of art 7 of the European Convention of Human Rights.
The Grand [...]
Imposition of Unreviewable Lifetime Reporting Requirements on Sexual Offenders a Disproportionate Intrusion on Private Life
F & Anor, R (on the application of) v Secretary of State for the Home Department [2010] UKSC 17 (21 April 2010)
This case concerned lifetime reporting requirements for sex offenders. The Supreme Court of the United Kingdom decided that while the [...]
Right to State-Funded Legal Aid in Coronial Inquest: Legal Aid Funding May be Necessary for State to Discharge Investigative Obligation
Humberstone, R (on the application of) v Legal Services Commission [2010] EWHC 760 (Admin) (13 April 2010)
Article 2 of the European Convention of Human Rights provides that the right to life is a fundamental human right [...]
Post-Sentence Detention Incompatible with Prohibition against Arbitrary Detention
Fardon v Australia, UN Doc CCPR/C/98/D/1629/2007 (12 April 2010)
Tillman v Australia, UN Doc CCPR/C/98/D/1635/2007 (12 April 2010)
The UN Human Rights Committee has held that the post-sentence detention of two men convicted of sexual offences, Kenneth Tillman in New South Wales and Robert Fardon in Queensland, was incompatible with [...]
Post-Sentence Detention Incompatible with Prohibition against Arbitrary Detention
Fardon v Australia, UN Doc CCPR/C/98/D/1629/2007 (12 April 2010)
Tillman v Australia, UN Doc CCPR/C/98/D/1635/2007 (12 April 2010)
The UN Human Rights Committee has held that the post-sentence detention of two men convicted of sexual offences, Kenneth Tillman in New South Wales and Robert Fardon in Queensland, was incompatible with [...]
‘Deeming’ Traffic Offences Breaches Right to Presumption of Innocence and Silence
Krumpholz v Austria [2010] ECHR 341 (18 March 2010)
In Krumpholz v Austria, the European Court of Human Rights held that deeming the owner of a vehicle to have committed a traffic offence (by virtue of their ownership of the vehicle) breaches the European Convention right [...]
Court of Appeal Makes Declaration of Inconsistent Interpretation and Considers Statutory Interpretation and Limitations on Rights under the Charter
R v Momcilovic [2010] VSCA 50 (17 March 2010)
In a landmark decision, the Victorian Court of Appeal has unanimously held that:
s 32(1) of the Charter is not a ‘special’ rule of statutory interpretation, but rather a statutory [...]
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 [...]
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 [...]
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 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 [...]
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 [...]
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 [...]
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 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 [...]
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. [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
Self-Represented Litigants and the Right to a Fair Hearing
Davies v Commonwealth Bank of Australia Ltd (Credit) [2009] VCAT 90 (28 January 2009)
This case considered the correct approach to be followed in dealing with unrepresented litigants and balancing their rights to a fair trial and access to justice with defendants’ rights.
Facts
Unrepresented applicants sought to challenge their [...]
Balancing the Right to a Fair Hearing with the Protection of Vulnerable Persons
Wright & Ors v Secretary of State for Health & Anor [2009] UKHL 3 (21 January 2009)
The House of Lords has recently issued a declaration of incompatibly under the Human Rights Act 1998 (UK) (’HR Act’) in relation to the Care Standards Act [...]
Reliance on Witness Statement where Cross-Examination not Available may Violate Right to a Fair Hearing
Al-Khawaja and Tahery v United Kingdom [2009] ECHR 26766/05 (20 January 2009)
The European Court of Human Rights has held that allowing a witness statement to be admitted as evidence where the witness is not available for cross examination and that evidence [...]
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.
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.
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 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.
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.
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 [...]
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 [...]
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 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 [...]
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 [...]
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 [...]
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.
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.
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.
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