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

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20to encourage the Gandys to leave was in direct contravention ofsection 229.27. Alternatively, if the lease between the parties does not come withinthe Act (and in this regard I note that section 11 excludes premisesused or ordinarily used for farming, including poultry farming) then Inonetheless consider that the termination and eviction were unlawfuland that the circumstances of the termination would give rise to anentitlement to damages as against Mr Barker.28. Assuming that the lease does not fall within the Act, then in order tovalidly terminate the tenancy prior to the expiry of the 18 month term on31 December 2000, Mr Barker would have had to exercise a right offorfeiture. While a breach of a condition of a lease may in somecircumstances entitle a landlord to forfeit a lease, on the basis of mycurrent instructions, it does not appear that Mr and Mrs Gandy were inbreach of any of their obligations under the lease (I assume for thepurposes of this advice that the Gandys did not damage the premisesor endanger the safety of neighbours as alleged in the notice tovacate). Accordingly, there does not appear to have been any lawfulbasis for Mr Barker to forfeit the lease.29. Further, the exercise of a right to forfeit a lease requires a deliveryof a notice served in accordance with section 146 of the Property LawAct 1958 which:(a) Specifies the breach complained of;(b) If the breach is capable of remedy, requires the lessee toremedy the breach; and(c) In any case, requires the lessee to make compensation inmoney for the breach.30. The delivery of a notice pursuant to section 146 is necessarybefore a forfeiture can be enforced: see Re Riggs [1901] 2 KB 16. Inmy view the notice to vacate does not comply with the requirements ofsection 146.31. It follows that, by reason of the matters set out in paragraphs 27 –29 above, there was no valid forfeiture of the lease and accordingly MrBarker was not entitled to re-enter the premises. In my view, it is likelythat a court would award damages to Mr and Mrs Gandy toAshling Gandy v Australia, Individual Communication to the Human Rights Committee
21compensate them for the wrongful termination of their lease and thedamage to their property. 61Thus, counsel has advised that the eviction of the Author and her family from theproperty was unlawful, regardless of the lease‟s status, and that there was a potentialbreach of the oral contract in place at the time between Mr Barker and the Author.The only remedies for these transgressions are civil. Further, Mr Barker‟s actionswere not in accordance with the minimum standards set out in relation to residentialtenancies, including provisions which prevent landlords from entering leased premisesin certain circumstances and, more significantly, from physically evicting tenants.Importantly, given VCAT‟s finding that the lease between Mr Barker and the Authorwas not within the scope of residential tenancies legislation, even fewer legalprotections were available to the Author. On any view of the arrangement between theAuthor and her landlord, the events surrounding the eviction in January 2000 werewithout legal basis or State authorisation and were not envisaged by Australian law.Regarding the term "family", the objectives of the Covenant require thatfor purposes of article 17 this term be given a broad interpretation toinclude all those comprising the family as understood in the society ofthe State party concerned. The term "home" in English, "manzel" inArabic, "zhùzhái" in Chinese, "domicile" in French, "zhilische" inRussian and "domicilio" in Spanish, as used in article 17 of theCovenant, is to be understood to indicate the place where a personresides or carries out his usual occupation. In this connection, theCommittee invites States to indicate in their reports the meaning givenin their society to the terms "family" and "home".Looking to the Committee‟s comments, which give a broad interpretation to thenotions of “family” and “home”, there should be no lesser legal protection in relationto privacy afforded to a home where it is part of a farm or included in any othercommercial leasing arrangement.Further, the protection from breaches of privacy is not limited to those perpetrated bythe State – as confirmed by the Committee in General Comment No. 16:Article 17 provides for the right of every person to be protected againstarbitrary or unlawful interference with his privacy, family, home orcorrespondence as well as against unlawful attacks on his honour andreputation. In the view of the Committee this right is required to beguaranteed against all such interferences and attacks whether theyemanate from State authorities or from natural or legal persons. Theobligations imposed by this article require the State to adopt legislativeand other measures to give effect to the prohibition against suchinterferences and attacks as well as to the protection of this right.61 See attachment marked “F”.Ashling 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 and 18: 17Article 2 of the ICCPR requires a
Page 19: 19requirements as to notice) with w
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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