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2010
‘Human Rights are Not Just for the Virtuous’: Will Criminal Conduct Prevent a Claim for Breach of Human Rights? Al Hassan-Daniel & Anor v HM Revenue and Customs & Anor [2010] EWCA Civ 1443 (15 December 2010) This case concerned the death in custody of Anthony Daniel, a drug smuggler and user. Mr Daniel’s widow [...]
UK Court of Appeal Considers Payment of Damages for Wrongful Imprisonment Stellato v The Ministry of Justice [2010] EWCA Civ 1435 (14 December 2010) The England and Wales Court of Appeal recently considered the application of art 5.1(b) of the European Convention on Human Rights (the right to liberty) to the detention of a person [...]
Right to Liberty and Review of Detention Faulkner, R (on the application of) v Secretary of State for Justice the Parole Board [2010] EWCA Civ 1434 (14 December 2010) The recent decision in Faulkner v Secretary of State for Justice provides guidance concerning the parole board system. In Faulkner, the Court concluded that where a [...]
Human Rights Interpretation and Reverse Onus Provisions: Is a Human Rights-Compatible Interpretation ‘Possible’?” Webster v R [2010] EWCA Crim 2819 (01 December 2010) The recent decision of the England and Wales Court of Appeal in Webster v R provides guidance concerning: the interpretation of the right to a ‘Fair Hearing’ under s 24 of the [...]
Enforcing the Right to Vote: UK Government Given Deadline to Reinstate Prisoners’ Right to Vote Greens and MT v United Kingdom [2010] ECHR 1826 (23 November 2010) The European Court of Human Rights recently considered the United Kingdom’s continued failure to amend legislation imposing a blanket ban on voting in national and European elections for [...]
Is a Presumption Against Bail Consistent with Human Rights? ACT Supreme Court Rules on Human Rights and the Interpretation of Legislation In the Matter of an Application for Bail by Isa Islam [2010] ACTSC 147 (19 November 2010) The ACT Supreme Court has declared that a provision of the ACT Bail Act 1992 is inconsistent [...]
Director of Housing Considers Rights of Vulnerable Tenants Director of Housing v TK [2010] VCAT 1839 (16 November 2010) A recent VCAT decision has shown that public housing authorities are developing a more thoughtful and engaged model of decision making that gives proper consideration to the human rights of vulnerable tenants. Facts The Director of Housing [...]
Does Freedom of Conscience Excuse Otherwise Criminal Behaviour? R v AM [2010] ACTSC 149 (15 November 2010) The ACT Supreme Court recently considered to what extent freedom of conscience under the ACT Human Rights Act 2004 (‘the HR Act’) influenced the interpretation of criminal offences. An applicant sought to argue that her consciousness beliefs should [...]
Relevance of the Victorian Charter to Breath and Blood Testing DPP v Piscopo [2010] VSC 498 and DPP v Rukandin [2010] VSC 499 (12 November 2010) The recent decisions in DPP v Piscopo [2010] VSC 498 and DPP v Rukandin [2010] VSC 499 provide further guidance concerning alcohol testing enforcement. The two separate judgements, delivered [...]
The Relationship between the Victorian Charter and Confiscation of Property DPP v Ali & Anor (No 2) [2010] VSC 503 (10 November 2010) The Supreme Court of Victoria (Hargrave J) recently considered the operation of the Charter of Human Rights and Responsibilities Act 2006 (Vic) in relation to an application to forfeit a family home [...]
What is the Relevance of the Charter to ‘Open Justice’ and the ‘Public Interest’? Inquest into the Death of Tyler Cassidy: Ruling on suppression application by the Chief Commissioner of Police pursuant to s 73(2)(b) of the Coroners Act 2008 During the coronial inquest into the fatal shooting of a teenager by the Victoria Police, [...]
The Use of the Victorian Charter in Criminal Interlocutory Proceedings Wells v The Queen (No 2) [2010] VSCA 294 (4 November 2010) The Court of Appeal dismissed this interlocutory criminal appeal. The applicant in part sought a permanent stay of a criminal trial on the basis that the Charter rights relating to criminal proceedings (ss 24 [...]
Courts Should Consider the Reasonableness and Proportionality of Evictions from Public Housing Manchester City Council v Pinnock [2010] UKSC 45 (3 November 2010) In this decision the UK Supreme Court was required to decide whether art 8 of the European Convention on Human Rights requires a court to consider the reasonableness and proportionality of applications for [...]
Ill-Treatment in Custody: Human Rights Committee Considers Prisoners’ Rights in Detention McCallum v South Africa, UN Doc CCPR/C/100/D/1818/2008 (2 November 2010) The Human Rights Committee has found that South Africa violated a prisoner’s rights not to be tortured or treated in a cruel, inhuman or degrading manner and to be treated with humanity and respected [...]
Disability Discrimination in Access to Education British Columbia (Ministry of Education) v Moore, 2010 BCCA 478 (29 October 2010) Frederick Moore filed a human rights complaint against the Board of Trustees School Division and the Ministry of Education. He alleged the Board and the Ministry had discriminated against his dyslexic son Jeffrey and other severely [...]
When will Eviction from Social Housing Breach Human Rights? Canberra Fathers and Children Services Inc v Michael Watson [2010] ACAT 74 (29 October 2010) The ACT Civil and Administrative Tribunal has found that an eviction from social housing that would result in homelessness is a breach of the right to be free from unlawful or [...]
Right to Lawyer Pre-Questioning: Admissions by Detained Suspect with Legal Representation are Incompatible with Right to Fair Trial Cadder v Her Majesty’s Advocate (Scotland) [2010] UKSC 43 (26 October 2010) The United Kingdom Supreme Court has overturned convention and UK precedent by holding that admissions made by a detained suspect prior to charge, without legal [...]
Protection of Elderly Persons and People with Disability McDonald, R (on the application of) v Royal Borough of Kensington & Chelsea [2010] EWCA Civ 1109 (13 October 2010) The England and Wales Court of Appeal has held that the failure to provide an elderly individual with disability with a carer to assist her to use [...]
Right to a Fair Hearing and Disciplinary Proceedings in Prison King v Secretary of State for Justice [2010] EWHC 2522 (Admin) (13 October 2010) The High Court of Justice has held that disciplinary proceedings may constitute the determination of civil rights, invoking the rights under art 6(1) of the European Convention on Human Rights. The [...]
Balancing the Right to a Fair Hearing and the Right to Religion: Canadian Court Considers Wearing of Veil in Criminal Proceeding R v NS, 2010 ONCA 670 (13 October 2010) The Ontario Court of Appeal recently handed down a significant decision regarding the conflict between the constitutional rights of a witness in a criminal proceeding [...]
Can a Commercial Entity Discriminate against People because of their Sexual Orientation on the Grounds of Its Religious Beliefs? Cobaw Community Health Services Limited v Christian Youth Camps Limited & Anor [2010] VCAT 1613 (8 October 2010) VCAT has recently ruled that a Christian adventure resort has discriminated against a gay youth suicide prevention group [...]
Limitation Periods and the Right of Access to the Courts Road Accident Fund and Another v Mdeyide [2010] ZACC 18 (30 September 2010) The Constitutional Court of South Africa has held that an inflexible 3-year time limit for lodging a claim for personal injuries sustained in a transport accident is a justified limitation on the [...]
The Welfare of Children must be ‘Primary Consideration’ in Decisions Regarding Immigration Detention of Parents MXL, R (on the application of) & Ors v Secretary of State for the Home Department [2010] EWHC 2397 (Admin) (30 September 2010) The England and Wales High Court has held that the immigration detention of a Jamaican woman with [...]
Sex Workers Must not be Forced to Choose between their Right to Liberty and Right to Security of Person Bedford v Canada, 2010 ONSC 4264 (28 September 2010) In September 2010, the Superior Court of Justice of Ontario (Canada) struck down ss 210, 212(1)(j) and 213(1)(c) of the Criminal Code, which criminalised certain aspects of [...]
Indian Supreme Court Considers Right to Liberty and Safeguards against Arbitrary Detention Pebam Ningol Mikoi Devi v State of Manipur & Ors [2010] INSC 782 (27 September 2010) The Indian Supreme Court has consider the right to liberty and safeguards against arbitrary detention, including the need for sufficient justification for any deprivation of liberty and [...]
Racial Vilification and the Balancing of Freedom of Expression with Freedom from Discrimination Adan v Denmark, UN Doc CERD/C/77/D/43/2008 (21 September 2010) The Petitioner, Saada Adan, filed a complaint against Denmark with the UN Committee on the Elimination of Racial Discrimination (CERD) alleging violations of the International Convention on the Elimination of All Forms of [...]
Protection of Journalistic Sources: Compulsion to Disclose Information without Review by Independent Body a Breach of Right to Freedom of Expression Sanoma Uitgevers BV v The Netherlands [2010] ECHR 1284 (14 September 2010) Journalistic material was seized by public authorities in the course of a criminal investigation despite a confidentiality agreement between the journalists and [...]
The Right to a Fair Hearing within a Reasonable Time McFarlane v Ireland [2010] ECHR 1272 (10 September 2010) In a decision of the Grand Chamber of the European Court of Human Rights, Ireland was held by twelve votes to five to be in breach of the right to have a hearing within a reasonable [...]
Referral of Questions of Law under Section 33 of the Charter De Simone v Bevnol Constructions and Developments Pty Ltd & Ors [2010] VSCA 231 (10 September 2010) The Victorian Court of Appeal has declined to answer a question of law referred to it by the Victorian Civil and Administrative Tribunal under s 33(1) of [...]
Canadian Court Considers Content of Right to Equality and Role of Appellate Courts in Discrimination Matters Ayangma v French School Board, 2010 PECA 16 (9 September 2010) The decision reviews the Supreme Court of Canada’s jurisprudence in regards to the violation of the human right to equality under s 15(1) of the Canadian Charter of [...]
Prisoners’ Right to Privacy: Claim for Access to Family Photographs Rejected Broom v Secretary of State for Justice [2010] EWHC 2695 (Admin) (03 September 2010) The England and Wales High Court has held that the decision of a prison authority to deny a prisoner access to photographs of his children did not engage that prisoner’s [...]
What is the Relationship between the Charter and the Equal Opportunity Act? McAdam v Victoria University & Ors (Anti-Discrimination) [2010] VCAT 1429 (3 September 2010) This decision illustrates how Charter arguments may complement complaints under the Equal Opportunity Act 1995 (Vic). It considers an application by Victoria University to strike out or dismiss a number [...]
States Have Obligation to Prevent and Address Gender-Based Stereotyping Vertido v The Philippines, UN Doc CEDAW/C/46/D/18/2008 (1 September 2010) The Committee on the Elimination of Discrimination against Women has held the Philippines in violation of its obligations under the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women to [...]
Supreme Court Considers Right to Liberty and Security of Person Subject to Involuntary Mental Health Treatment Antunovic v Dawson & Anor [2010] VSC 377 (25 August 2010) On an application for a writ of habeas corpus, Bell J of the Supreme Court of Victoria held that the provision in the Mental Health Act 1986 (Vic) [...]
Human Rights Committee Considers Necessity for Independent, Impartial Investigations in Cases of Alleged Breaches of the ICCPR Olimzhin Eshonov v Uzbekistan, UN Doc CCPR/C/99/D/1225/2003 A father of a man who died in custody submitted a complaint to the Human Rights Committee (Committee), alleging violations of his son’s rights and his own rights under arts 2, [...]
Investigation of Death of Human Rights Defender and the Need for Independent Investigation and Expeditious Prosecution Evangeline Hernandez v The Philippines, UN Doc CCPR/C/99/D/1559/2007 (20 August 2010) The Human Rights Committee has held the Philippines breached its obligations under the International Covenant on Civil and Political Rights following the arbitrary killing of a human rights [...]
Discrimination on Ground of Nationality Nikolaus Fürst Blücher von Wahlstatt v Czech Republic, UN Doc CCPR/C/99/D/1491/2006 (19 August 2010) The Human Rights Committee has found that Czech land laws requiring citizenship as a necessary condition for restitution of property previously confiscated by authorities constitutes a violation of the right to equality before the law. Facts [...]
Adoption by Gay Men and Lesbian Women: Two Steps Forward, One Step Back… In the matter of an Application pursuant to s 11(3) Adoption Act (Vic) 1984 AB and Victorian Equal Opportunity & Human Rights Commission and Department of Human Services and Separate Representative of J [2010] VCC AD-10-003 (6 August 2010) A recent decision [...]
Protecting Marriage or Legislating Morality? Same-Sex Marriage Equality under the US Constitution Perry v Schwarzenegger, Case No. C 09-2292 VRW (US District Court for the Northern District of California, 4 August 2010) The US District Court has held that a prohibition against same-sex marriage violates the US constitutional requirements of ‘due process’ and equal ‘protection’. [...]
What Level of Inquiry and Analysis is Required to Determine the Reasonableness of a Police Search? R v Cornell, 2010 SCC 31 (30 July 2010) The Supreme Court of Canada has considered the level of inquiry and analysis required to be conducted by police when determining whether a forced entry into a premise is reasonable, [...]
VCAT Considers Right to Equality and Retrospective Operation of the Charter Valentine v Emergency Services Superannuation Board [2010] VCAT No G585/2008 (29 July 2010) The Victorian Civil and Administrative Tribunal has held that s 32 of the Charter does not apply retrospectively to affect the interpretation of the State Superannuation Act 1988 (Vic) insofar as [...]
Charter Rights Should be Construed Broadly and by Reference to International and Comparative Human Rights Jurisprudence Director of Public Transport v XFJ [2010] VSC 319 (29 July 2010) The Victorian Supreme Court has affirmed the importance of a broad approach to the construction of human rights in the Charter, including appropriate reliance on international human [...]
Control Orders and the Deprivation of Liberty AN v Secretary of State for the Home Department [2010] EWCA Civ 869 (28 July 2010) A recent decision before the England and Wales Court of Appeal has found that if a control order is legally flawed, or revoked by the Secretary of State, then it shall be [...]
Application of the Charter to Public Sector Employment Decisions and Practices Quinn v Overland [2010] FCA 799 (28 July 2010) The Federal Court of Australia has found that there is a serious issue to be tried that s 20(3)(c) of the Public Administration Act 2004 (Vic) (‘the PA Act’) places a statutory duty on public [...]
Who is a ‘Victim’ with Standing to Bring a Complaint under the ICCPR? Fatima Andersen v Denmark, UN Doc CCPR/C/99/D/1868/2009 (26 July 2010) The UN Human Rights Committee has held that to be a ‘victim’ under the International Covenant on Civil and Political Rights requires the identification of specific consequences of the conduct that forms [...]
When Will Damages be a Just and Appropriate Remedy for Breach of Human Rights? City of Vancouver v Ward 2010 SCC 27 (23 July 2010) The Supreme Court of Canada has handed down a significant judgment on the availability of damages for a breach of human rights under the Canadian Charter of Rights and Freedom. [...]
Tribunal has Jurisdiction to Determine whether Public Authority has Acted Compatibly with Human Rights Director of Housing v TK [2010] VCAT Application 2010/11921 (Unreported, 22 July 2010) VCAT Deputy President Lambrick has held that the Tribunal has jurisdiction to determine whether an application made pursuant to ss 250 and 330(1) of the Residential Tenancies Act [...]
Limitations on the Right to Peaceful Assembly and Protest Mayor of London (On behalf of the Greater London Authority) v Hall & Ors [2010] EWCA Civ 817 (16 July 2010) The England and Wales Court of Appeal upheld a High Court decision which held that the Mayor of London is entitled to seek an injunction [...]
Right to Equality: Recognising and Prohibiting Discrimination beyond ‘Innate’ or ‘Inherent’ Characteristics Clift v United Kingdom [2010] ECHR 1106 (13 July 2010) In Clift v The United Kingdom, the European Court of Human Rights gave a broad reading to art 14 of the European Convention of Human Rights, finding that a person’s status as a [...]
Right to Humane Treatment in Detention and Prisoner Access to Health Care Castles v Secretary to the Department of Justice [2010] VSC 310 (9 July 2010) On 9 July 2010, the Supreme Court of Victoria found that the plaintiff, Kimberley Castles, is entitled under s 47(1)(f) of the Corrections Act 1986 to undergo IVF treatment. [...]
Extra-territorial Application of the Human Rights Act Smith, R (on the application of) v Secretary of State for Defence & Anor [2010] UKSC 29 (30 June 2010) The Supreme Court of the United Kingdom has held by a 6:3 majority that the Human Rights Act 1998 (UK) has no application to members of the armed [...]
Right to Equality and Anti-Discrimination Exemptions: Special Measures to Reduce Disadvantage Department of Human Services & Department of Health (Anti-Discrimination Exemption) [2010] VCAT 1116 (29 June 2010) In this decision, McKenzie DP granted an exemption on the basis that it constitutes an appropriate special measure to reduce disadvantage caused by discrimination, as permitted by s [...]
Right to Equality and Anti-Discrimination Exemptions Members of Owners Corporation on Plan of Subdivision No 441923W (Anti-Discrimination Exemption) [2010] VCAT 1111 (28 June 2010) In this decision, McKenzie DP refused to grant a proposed exemption because it was not the least restrictive means of achieving the desired outcome, contrary to s 7(2)(e) of the Charter. [...]
Torture and the Transfer of Prisoners Evans, R (on the application of) v Secretary of State for Defence [2010] EWHC 1445 (Admin) (25 June 2010) Ms Evans, a peace activist, sought to stop the practice of British personnel transferring detainees to the Afghan authorities by arguing the practice exposed such transferees to a real risk [...]
Coroners Court Determines that Right to Life Requires Inquiries to ‘Address Systemic and Prevention Issues’ Coronial Investigation of 29 Level Crossing Deaths – Ruling on the Interpretation of Clause 7(1) of Schedule 1 of the Coroners Act 2008 (Vic) (25 June 2010) The Coroners Court has held that right to life under s 9 of [...]
Do the Rights to Marriage and Equality Require States to Recognise Same-Sex Marriage? Schalk and Kopf v Austria [2010] 30141/04 (24 June 2010) Does the right to marry, and the ‘family unit’, extend to same-sex couples? The European Court of Human Rights recent decision in Schalk and Kopf v Austria considers these issues. Facts Under [...]
Access to Information and Freedom of Expression Ontario (Public Safety and Security) v Criminal Lawyers’ Association, 2010 SCC 23 (17 June 2010) The Supreme Court of Canada held that the right to freedom of expression in s 2(b) of the Canadian Charter of Rights and Freedoms does not guarantee access to all documents held in [...]
What Constitutes a Deprivation of Liberty? Secretary of State for the Home Department v AP [2010] UKSC 24 (16 June 2010) A recent decision of the UK Supreme Court has confirmed that certain control order restrictions may constitute a deprivation of liberty sufficient to engage the operation of art 5 of the European Convention on [...]
Administrative Tribunals have Jurisdiction and Duty to Consider Human Rights Issues R v Conway, 2010 SCC 22 (11 June 2010) The Supreme Court of Canada has held that administrative tribunals with the authority to apply the law, have the jurisdiction to apply the Charter to the issues that arise in the proper exercise of their [...]
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 [...]
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 [...]
Right to Life Includes Right to Health and Freedom from Poverty Laxmi Mandal v Deen Dayal Harinagar Hospital & Ors [2010] 8853/2008 and Jaitun v Janpura Maternity Home & Ors [2010] 10700/2009 (High Court of Delhi, 4 June 2010) The High Court of Delhi has issued directions in response to the systemic failures resulting in [...]
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 [...]
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 [...]
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 [...]
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 [...]
Right to Privacy and the Interception and Surveillance of Communications Kennedy v United Kingdom [2010] ECHR 682 (18 May 2010) Whilst specific breaches of the European Convention of Human Rights were not ultimately upheld, this case provides insight into the application and scope of the right to privacy enshrined in art 8 of the Convention. [...]
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 [...]
Application of Charter to Guardianship and Administration PJB (Guardianship) [2010] VCAT 643 (17 May 2010) Justice Billings in the Victorian Civil and Administrative Tribunal has held that the appointment of an administrator to the estate of a represented person, PJB, was a justifiable restriction on PJB’s right to freedom of movement and right to privacy. [...]
VCAT Considers Relevance of Charter to Availability of Payments for Childcare from Transport Accident Commission Michelle Dawson v Transport Accident Commission [2010] VCAT 796 (13 May 2010) Facts Ms Dawson was seriously injured in a car accident on 13 October 2005. As a result of her injuries Ms Dawson received a number of therapies in [...]
Application of Charter to Planning Schemes, Decisions and Considerations Smith v Hobsons Bay City Council [2010] VCAT 668 (12 May 2010) A recent VCAT decision establishes that a planning scheme provision limiting views into existing secluded private open space and habitable room windows is not incompatible with the Charter. VCAT also held that a local [...]
Supreme Court Orders Speedy Trial to Determine Prisoner’s Eligibility to Access IVF Treatment under Victorian Charter Castles v Secretary of the Department of Justice & Ors [2010] VSC 181 (4 May 2010) The Supreme Court of Victoria has rejected an application by a female prisoner for an injunction restraining the Secretary of the Department of [...]
Proof of Identity Requirements and Limitations on the Right to Vote Henry v Canada (Attorney General), 2010 BCSC 610 (4 May 2010) This case concerned the constitutional validity of voter identification rules, which require electors to provide proof of their identity and residence in order to vote in Canadian federal elections. The Supreme Court of [...]
What does Proper Consideration of Human Rights Entail? Director of Housing v Turcan [2010] VCAT Ref No R201011922 (Unpublished, 4 May 2010) The Victorian Civil and Administrative Tribunal has considered the meaning of ‘arbitrary’ and ‘unlawful’ in the context of s 13(a) of the Charter of Human Rights and Responsibilities Act 2006, as well as [...]
Freedom of Religion and Conscience Objection to Military Service Eu-min Jung & Ors v Republic of Korea, UN Doc CCPR/C/98/D/1593-1603/2007 (30 April 2010) The UN Human Rights Committee has held that the Republic of Korea violated art 18, paragraph 1 of the International Covenant on Civil and Political Rights in convicting and sentencing to imprisonment, [...]
Obligation of Public Authorities to Provide Accommodation and Support to Destitute Family Birmingham City Council v Clue [2010] EWCA Civ 460 (29 April 2010) In this case, the England and Wales Court of Appeal held that the Birmingham City Council’s refusal to provide financial assistance and accommodation to a family while their immigration application was [...]
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 [...]
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 [...]
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, [...]
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, [...]
Eviction from Public Housing without Adequate Justification a Breach of Human Rights Justice Bell, sitting as President of the Victorian Civil and Administrative Tribunal, has held that the Director of Housing acted unlawfully under s 38(1) of the Charter in seeking, without adequate justification, to evict a refugee family from social housing in breach of [...]
Refugee Rights and Non-Refoulement: Proposed Transfer of Asylum Applicant from UK to Greece did not Breach European Convention Saeedi, R (on the application of) v Secretary of State for the Home Department & Ors [2010] EWHC 705 (Admin) (31 March 2010) The England and Wales High Court recently held that the proposed transfer of an [...]
Statutory Interpretation and Limitations on Rights In the matter of a Major Review of Derek Ernest Percy [2010] VSC 179 (31 March 2010) Derek Percy, the only remaining prisoner in Victoria who was found not guilty of murder on the grounds of insanity, sought to have his custodial supervision order varied pursuant to the Crimes [...]
Possession Orders and the Right to Privacy and the Home Salford City Council v Mullen [2010] EWCA Civ 336 (30 March 2010) In this case, the England and Wales Court of Appeal considered the impact of House of Lords decisions on the rights of tenants occupying premises under ‘introductory’ or ‘homeless’ accommodation legislation. In considering [...]
Right to Privacy and Protection of Children and Families MAK and RK v United Kingdom [2010] ECHR 363 (23 March 2010) The European Court of Human Rights has held that restrictive hospital visiting conditions imposed on a father, the first applicant, suspected of abusing his daughter, the second applicant, breached the right to private and [...]
‘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 [...]
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 [...]
Balancing the Right to Non-Discrimination and Freedom of Religious Belief in the Provision of Charitable Services Catholic Care (Diocese of Leeds) v Charity Commission for England and Wales & Anor [2010] EWHC 520 (Ch) (17 March 2010) The England and Wales High Court has held that it is for the Charity Commission to determine whether [...]
Right to Private Life and Protection of Children AD and OD v United Kingdom [2010] ECHR 340 (16 March 2010) The European Court of Human Rights has held that the United Kingdom breached its obligation to respect private and family life under art 8 of the European Convention on Human Rights because of errors made [...]
Right to Freedom of Expression Incorporates Positive Right to Freedom of Information XYZ v Victoria Police [2010] VCAT 255 (16 March 2010) In a significant decision, Bell J has held that the right to freedom of expression under s 15(2) of the Victorian Charter ‘incorporates a positive right to obtain access to government-held documents’. His [...]
Coroner Considers Applications for Leave to Make Submissions on Charter of Rights in Police Shooting Inquest Inquest into the Death of Tyler Cassidy: Ruling on applications to be granted leave to participate as Interested Parties pursuant to s 56 Coroners Act 2008 (4 March 2010) The Coroner’s Court of Victoria recently considered applications by three [...]
Temporary Exceptions and the Right to Equality and Non-Discrimination: Exemptions should be Subject to Ongoing Monitoring and Evaluation Wesley College (Anti-Discrimination Exemption) [2010] VCAT 247 (3 March 2010) In this case, VCAT considered an exemption application pursuant to s 83 of the Equal Opportunity Act 1995 by Wesley College. The exemption sought to enable Wesley [...]
Protection from Cruel Treatment and the Death Penalty: UK Breaches Convention Obligations by Transferring Prisoners to Iraqi Custody Al-Sadoom and Mufdhi v United Kingdom [2010] ECHR 282 (2 March 2010) The European Court of Human Rights has held that the United Kingdom breached a number of its obligations under the European Convention on Human Rights [...]
Same-Sex Relationships: Right to Non-Discrimination and Succession to Public Tenancy Kozak v Poland [2010] ECHR 280 (2 March 2010) The European Court of Human Rights has held that Poland violated arts 8 and 14 of the European Convention on Human Rights by denying a man living in a homosexual relationship the right to succeed to [...]
Hate Speech and the Limits of Freedom of Expression and Religious Belief Whatcott v Saskatchewan (Human Rights Tribunal), 2010 SKCA 26 (25 February 2010) The Court of Appeal for Saskatchewan has unanimously held that four flyers, which contained anti-gay sentiments, were not so extreme as to violate that prohibition on hate speech under The Saskatchewan [...]
‘Act of State Doctrine’ does not Apply when Grave Violations of Human Rights Alleged: Court Agrees to Consider Australia’s Obligations to Citizens Abroad Habib v Commonwealth of Australia [2010] FCAFC 12 (25 February 2010) On 25 February 2010, the Full Court of the Federal Court delivered a significant judgment that will allow the Court to [...]
Right to Public Participation Requires Reasonable Opportunity to be Heard Poverty Alleviation Network & Ors v President of the Republic of South Africa & Ors [2010] ZACC 5 (24 February 2010) In Poverty Alleviation Network (‘Matatiele 3’) the Constitutional Court of South Africa effectively held that constitutional obligations owed by South African legislatures to facilitate [...]
Resisting Extradition Based on the Right to Private and Family Life Norris v Government of United States of America [2010] UKSC 9 (24 February 2010) The UK Supreme Court has held that the extradition of a mentally and physically fragile 66-year-old did not contravene the right to respect for private and family life under art [...]
Right to Liberty and Security and the Police Use of Force: Excessive Use of Force Results in Reduction of Sentence R v Nasogaluak, 2010 SCC 6 (19 February 2010) The Canadian Supreme Court has held that the excessive use of force by police officers in conducting an arrest was a breach of the accused’s right [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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. [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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 [...]
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