individual communication to the united nations ... - Community Law

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182. Everyone has the right to the protection of the law against suchinterference or attacks.There are two aspects to Article 17. The first aspect refers to the prohibition onarbitrary and unlawful interferences with the right to privacy. The second refers tothe right to protection of the law against interference. These two aspects will becovered in Part 1 and Part 2 in the discussion of this right.Part 1 – Arbitrary or Unlawful InterferenceIn General Comment No.16 (08/04/88) regarding Article 17, the UN Human RightsCommittee notes at paragraphs 3 and 4:“The term “unlawful” means that no interference can take place exceptin cases envisaged by the law. Interference authorized by States canonly take place on the basis of law, which itself must comply with theprovisions, aims and objectives of the Covenant.“The expression “arbitrary interference” is also relevant to theprotection of the right provided for in article 17. In the Committee’s viewthe expression “arbitrary interference” can also extend to interferenceprovided for under the law. The introduction of the concept ofarbitrariness is intend to guarantee that even interference provided forby law should be in accordance with the provisions, aims andobjectives of the Covenant and should be, in any event, reasonable inthe particular circumstances.”As described above, the Author received pro bono advice from counsel as to potentialclaims against Mr Barker. As part of the memorandum of advice, counsel consideredthe lawfulness of the eviction by Mr Barker. The relevant sections are extractedbelow:22. Based on the assumption that the Gandys can establish that therewas a lease in the terms set out above, it is my opinion that Mr Barkeracted unlawfully in purporting to terminate the lease, and in evicting theGandys from the premises.23. First, I consider that the delivery of the notice to vacate did notconstitute a valid termination of the tenancy. Assuming for the presentpurposes that the lease was a tenancy agreement for the use ofpremises to be primarily used for residential purposes, such as to bringthe tenancy agreement within the ambit of the Residential TenanciesAct 1997 (“the Act”), the notice to vacate delivered by Mr Barker doesnot conform with the requirements for such notices set out in sections255 – 259 and 263 of that Act. Those sections specify a number ofcircumstances in which a landlord of rental premises may deliver anotice to vacate. They specify the requirements (includingAshling Gandy v Australia, Individual Communication to the Human Rights Committee
19requirements as to notice) with which a notice to vacate must comply.The provisions authorise service of a notice to vacate in circumstancesincluding where:(a) The landlord intends to carry out repairs (section 255, whichrequires not less than 60 days notice);(b) The landlord intends to demolish the premises; (section 256,which requires not less than 60 days notice);(c) The premises are to be used for the purposes of a businessor for any other purpose other than letting for use principallyas a residence (section 257, which requires not less than 60days notice);(d) The premises are to be occupied by the landlord or thelandlord’s family (section 258, which requires not less than60 days notice);(e) The premises are to be sold (section 259, which requires notless than 60 days notice);(f) The landlord wishes to terminate the tenancy for no specifiedreason (section 263, which requires not less than 90 daysnotice).24. Except in the case of a notice issued under section 263, a notice tovacate given in relation to residential premises must specify thereasons for giving the notice: see section 319. Further, delivery of anotice to vacate and the expiry of the notice period do not ofthemselves terminate a tenancy – the premises must either be vacatedby the tenants or VCAT must make an order for possession, followingwhich the tenancy will terminate: see sections 219, 334 and 342.25. Subsection 229(1) provides that a landlord or a person acting onbehalf of a landlord must not, except in accordance with the Act:(a) require or compel or attempt to compel a tenant under atenancy agreement to vacate the rented premises; or(b) obtain or attempt to obtain possession of the rentedpremises by entering them, whether the entry is peaceableor not.26. In the event that a Court were to determine that the lease betweenthe Gandys and Mr Barker was a residential tenancy agreement, itwould be concluded in my view that the purported termination of thetenancy was invalid and unlawful. This is because the notice to vacateserved on Mr and Mrs Gandy does not on any reading of the Actspecify an adequate notice period. Further the entry onto the premisesAshling Gandy v Australia, Individual Communication to the Human Rights Committee
Page 1: 1INDIVIDUAL COMMUNICATION TO THE UN
Page 4 and 5: 4Part 11.1 SummaryThe Author, her h
Page 6 and 7: 6At or just after this time, Mr Bar
Page 8 and 9: 81.2.2 Attempts to seek assistanceV
Page 10 and 11: 10“I consider the criminal act to
Page 12 and 13: 12claim- Judgment entered in favour
Page 14: 14Civil ProceedingsThe Author was u
Page 17: 17Article 2 of the ICCPR requires a
Page 21 and 22: 21compensate them for the wrongful
Page 23 and 24: 23must such an obligation be interp
Page 25 and 26: 25stop to the interference by third
Page 27 and 28: 27(4) the tenant lets the landlord
Page 29 and 30: 293. There has been a particularly
Page 31 and 32: 319. The Author submits that such r
Page 33 and 34: 33(b) the premises are to be sold o
Page 35 and 36: 35(1) A landlord or a person acting
Page 37 and 38: 37S. 259(2A) inserted by No. 45/200
Page 39 and 40: 39apply to the Court for relief; an
Page 41 and 42: 41s. 146(d) a house let as a dwelli
Page 43 and 44: 43(iii) the accused shall be entitl
Page 45 and 46: 45Victoria PoliceG 4 February 2000
Page 47: 47DD 24 April 2001 Internal Police

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