Too many human rights cases, too little time (and, yes, I’m never happy.) Here are some short points on the rush of human rights cases (or related cases or events) that have come out the past few days. I hope to get back to some of them:
- Sham marriages: In Baiai & Ors, R (On The Application of) v Secretary of State For The Home Department  UKHL 53, the House of Lords examined the compatibility of a statutory scheme that required people under immigration control who wanted to marry to get permission from Home Secretary with the ECHR right to marry. The Lords accepted that the scheme served an important function of preventing sham marriages (designed to advance a prospective immigrant’s domestic rights) – thus overturning a declaration of incompatibility that had been issued – but rejected the regulations applying the scheme, which rejected all applications from people who were in the UK without leave or on only short stays. While marriage is not (presently) part of Victorian law and the Charter has no right to marry, this decision may have some relevance to decisions by the Registrar of Births, Deaths and Marriages on whether or not to register relationships, in light of the Charter’s right of families to ‘protection’ by the State.
- Discrimination against Mormons: In Gallagher (Valuation Officer) v Church of Jesus Christ of Latter-Day Saints  UKHL 56, the House of Lords rejected a complaint by the Mormons against a law that provided a rate reduction only for public places of worship, which excluded Mormon temples (which only Mormons can enter.) The majority applied the difficult rule of international human rights law that largely limits equality rights to the enjoyment of other protected rights (which arguably also applies to Charter s. 8) to hold that there’s no right against discrimination when it comes to differential building rates. (They followed an equally dubious decision that rejected a challenge to a law that provided relief from child support obligations to people who re-partner, but only with someone from the opposite sex.) Lord Scott of Forscote felt uneasy about this denial of rights, but held that any discrimination against non-public places of worship was justified because ‘secretive’ religions are divisive. Christ!
- Rights of tenants: In Doherty & Ors v Birmingham City Council  UKHL 57, the House of Lords gave its third judgment on the difficult question of the obligations of public authorities to tenants. Faced with ECtHR decisions holding that some evictions processes were incompatible with tenants’ right to respect for their home, the Lords refused to further widen the common law remedies against public authorities, holding that to do so would undermine the decision of the UK parliament to allow public authorities broad eviction rights in some instances. The decision (again) gives lie to Bob Carr’s claims about the problems the UKHRA supposedly holds for property owners trying to evict trespassers. It also re-affirms my doubts about the conduct of some Victorian lawyers in using the Charter to protect tenants from evictions by Victorian public authorities. Most importantly to me, this decision is highly notable for its detailed analysis of the UKHRA equivalent to Charter s. 38(2), a provision I think deserves a lot more attention.
- Admissibility of private diaries: In Lifely v Lifely  EWCA Civ 90, the Court of Appeal dealt with a miserable battle between two brothers over their late dad’s milk business. One brother had earlier convinced a court that some of the milk proceeds were intended to be shared between both sons; however, the other brother had since discovered the first brother’s diaries, which seemed to contradict testimony that had been given about what had been agreed. The Court of Appeal rejected an argument that the right to respect for private life meant that the diaries shouldn’t be admitted; rather, not only should they be admitted as fresh evidence to contradict the earlier finding about the agreement, but the whole case should be revisited in light of the doubts the fresh evidence suggested about the first brother’s credibility. Interestingly, the case sounds a note of caution that the law on the protection of privacy may still have some way to develop and that inadmissibility may be the right remedy in an appropriate fact situation. Could be interesting in terms of the application of s138 of Victoria’s new Evidence Bill in civil cases.
- Politicised criminal investigations: Two fascinating and incredibly high profile decisions on the discretionary powers of criminal investigators. The Constitutional Court of South Africa, in two decisions, upheld most aspects of an investigation by the country’s independent national investigators (the Scorpions) into the business affairs of the country’s next president, Jacob Zuma. Zuma raised a number of his rights under the SABoR, notably arguing that his right to dignity (the core right of SA rights jurisprudence) was being infringed by the stop-start investigation. The Court’s decision was largely statutory, albeit with repeated reference to human rights, and largely upheld the need for workable investigative powers to scrutinise corruption (especially in light of Zuma’s apparent unwillingness to cooperate in the investigation.) In In Corner House Research & Ors, R (On The Application of) v The Serious Fraud Office  UKHL 60, the House of Lords considered a decision of the Serious Fraud Office to drop an investigation of Saudi businesses after the Saudis threatened to stop cooperating in the war on terror. The Lords unanimously held that the decision was within the very broad ambit of prosecutorial discretion. This wasn’t an HRA case, but would seem to have relevance to the question of whether or not prosecutorial decision-making falls within the Charter s 38(2) defence to the conduct mandate.
- Parole boards: A brief mention of the Charter’s exemption of parole boards from the definition of public authorities in a Victorian case involving a challenge to the revocation of parole following an adverse drug test.
- Jack Thomas: It seems, he drew the short straw of Gleeson CJ and Hayne J as his special leave panel in his attempt to re-examine the Victorian Court of Appeal’s unfortunate decision to allow the Cth DPP a second bite of the cherry. Should be an interesting trial…
- Equal Opportunity Review: The release of a review of equal opportunity processes in Victoria, with an emphasis on consistency with the Charter. Some highlights: changing VEOHRC’s name to Human Rights Victoria and introducing a ‘duty to eliminate discrimination’, a conduct-mandate-like legal rule, but without some of the Charter s. 39 limitations.
I could say more about all of these, especially that tenancy case. Whether I have the time is another matter…