South Australian Court of Appeal rules whistleblowers have no immunity for gathering evidence to support public interest disclosures

Boyle v Director of Public Prosecutions (Cth) [2024] SASCA 73 

In the much publicised case of Australian Tax Office (ATO) whistleblower Richard Boyle, the South Australian Court of Appeal has found that the Public Interest Disclosure Act 2013 (Cth) (the Act) does not provide whistleblowers with immunity from criminal, civil or administrative liability for actions taken in gathering evidence to support public interest disclosures (PID). 

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Federal Court upholds subpoena which requires civil society organisations to produce internal documents, potentially exposing them to pay legal costs to a large corporation

Munkara v  Santos Na Barossa Pty Ltd (No 4) [2024] FCA 414

The Federal Court of Australia (the Court) has upheld a subpoena to produce documents issued against three civil society organisations. These organisations are now required to produce internal documents and are at risk of having to pay a large corporation’s costs in association with proceedings that they were not a party to.   

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A mechanic has been awarded $44,000 in compensation after his employer failed to make reasonable adjustments to allow him to perform his role after an out-of-work injury.

Panazzolo v Don’s Mechanical and Diesel Service Pty Ltd [2023] FEDCFAMC2G 665

Mark Panazzolo (the employee), a diesel mechanic, was successful in his claim against his former employer, Don’s Mechanical and Diesel Service Pty Ltd (Don’s Auto/the employer), for disability-based discrimination.  

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Federal Court of Australia finds that a transgender woman was indirectly discriminated against after exclusion from ‘women-only’ social media app

Tickle v Giggle for Girls Pty Ltd (No 2) [2024] FCA 960

On 23 August, the Federal Court found that ‘Giggle for Girls’ had indirectly discriminated against a transgender woman by excluding her from an app which was designed as a ‘women-only safe space.’ This is the first court decision that determined that the Sex Discrimination Act 1984 (Cth) (SDA) protects transgender women from discrimination on the basis of their gender identity. 

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Victorian Court of Appeal upholds COVID-19 emergency directions finding no breach of freedom of political communication

Cotterill v Romanes [2023] VSCA 7 

On 8 February 2023, the Victorian Court of Appeal dismissed an appeal from Cotterill v Romanes [2013] VSC 498.

The Court of Appeal held that directions made in the context of the COVID-19 pandemic under the emergency powers in the Public Health and Wellbeing Act 2008 (Vic) (PHW Act) did not impermissibly burden the freedom of political communication implied in the Commonwealth Constitution. 

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ACT Supreme Court grants bail on the basis that people on remand must be imprisoned separately 

DPP v Alexander (a pseudonym) [2024] ACTSC 161

Justice Mossop of the Supreme Court of the Australian Capital Territory has found that an accused person, Alexander (a pseudonym), was imprisoned in contravention of section 19 of the Human Rights Act 2004 (ACT) (HRA) in circumstances where they were on remand and imprisoned with people who had been convicted. Alexander’s right to be separated from convicted prisoners was not restricted by the operation of section 44 of the Corrections Management Act 2007 (ACT) (CMA). Accordingly, his Honour found that the requirements for “special or exceptional circumstances” favouring a grant of bail under section 9D of the Bail Act 1992 (ACT) (Bail Act) were satisfied. 

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Melbourne public housing tower resident's claim summarily dismissed for having "no real prospect of success", plaintiff given chance to reformulate claim

Berih v State of Victoria (No 2) [2024] VSC 230

The Victorian Supreme Court upheld the defendants' application for summary dismissal but granted leave for the plaintiff to reformulate his claim, in a representative proceeding (class action) challenging the validity of the decision to demolish three public housing towers in Melbourne. Justice Richards held the plaintiff's claim had no real prospect of success because the claim did not identify a decision that the plaintiff had standing to seek judicial review remedies for. The lack of justiciability of the decision was fatal to both the jurisdictional error ground and the Charter grounds in this matter.

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Court finds no unlawful interference with accused's rights to privacy and reputation in Department's investigation into historical child sexual abuse

BZN v Chief Executive, the Department of Children, Youth Justice and Multicultural Affairs [2023] QSC 266

On 30 November 2023, the Supreme Court of Queensland ruled that the plaintiff, BZN, had not proven that the final review decision, which affirmed the findings of an investigation into his alleged sexual assault of a child, was: legally invalid; or unlawful under section 59 of the Human Rights Act 2019 (Qld) ('HRA').

The judgment offers insights into how the HRA applies to public authorities and the standards they must meet in making decisions that adequately consider human rights.

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QLD Court of Appeal finds that legislation prohibiting Sikhs from wearing ceremonial knives in schools is inconsistent with the Racial Discrimination Act 1975 (Cth)

Athwal v State of Queensland [2023] QCA 156 

Kamaljit Kaur Athwal successfully brought an action against the State of Queensland seeking a declaration that the restriction on possessing a knife for religious reasons inside a school was inconsistent with the federal Racial Discrimination Act 1975 (Cth) (‘RDA’).

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Powers of Online Safety Act tested in Federal Court case

eSafety Commissioner v X Corp [2024] FCA 499

The high-profile dispute between the Office of the eSafety (‘eSafety’) Commissioner and X Corp (formerly known as Twitter) has tested key powers of Australia’s Online Safety Act and stimulated spirited debate on the interplay between online safety laws and rights to freedom of expression. eSafety sought enforcement of a removal notice pertaining to a bundle of content showing the high-profile stabbing in Sydney of Bishop Mar Mari Emmanuel. The Federal Court refused to extend an ex parte interim injunction against X Corp, and held that geo-blocking is a reasonable step for removing content pursuant to a removal notice under section 109 of the Online Safety Act. The judgment suggests Parliament should clarify the meaning of ‘all reasonable steps’ in the context of the Online Safety Act.

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COVID-19 vaccination directions issued to Queensland police and ambulance services ruled unlawful

The Supreme Court of Queensland has found that directions issued by the Commissioner of the Queensland Police Service and the Director General of Queensland Health to their employees were unlawful under section 58 of the Human Rights Act 2019 (Qld) ('HRA') or of no effect. Injunctions were granted to restrain the enforcement of the directions. In a separate proceeding, applicants who challenged the validity of directions issued by the Chief Health Officer were found to not have standing and the application was consequently dismissed.

This summary focuses on the aspects of the judgments that relate to the HRA.

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ACT Supreme Court considers the availability of damages under the Human Rights Act

McIver v Australian Capital Territory; Williams v Australian Capital Territory [2024] ACTSC 112

Curtin AJ of the Australian Capital Territory (ACT) Supreme Court has refused to grant an extension of time to bring claims for compensation or damages under the Human Rights Act 2004 (ACT) (HRA) to persons who allege their human rights were infringed by a public authority, being the Australian Capital Territory (Territory), because of the finding that the claims were futile. The case contains helpful discussion of the operation of the HRA.

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Indefinite detention continues for people who cannot be forcibly deported

High Court ruling in ASF17 v Commonwealth of Australia [2024] HCA 19 

On 10 May 2024, the High Court handed down its judgment in the case of ASF17. The decision followed the High Court’s ruling in NZYQ in November 2023, in which the Court held it was unlawful for the Australian Government to continue detaining a person in immigration detention where there was no real prospect of the person’s removal from Australia becoming practicable in the reasonably foreseeable future.

That case was brought by a plaintiff who was both stateless and engaged Australia’s international protection obligations. In ASF17, the Court considered whether the same limitation on detention applied to a person who did not have a formal protection finding, but could not be removed because his country of origin refuses to accept the forced return of its citizens and he had not consented to return. 

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UK High Court rules amendments to Public Order Act unlawful and upholds protest rights

National Council for Civil Liberties v Secretary of State for the Home Department [2024] EWHC 1181

In an important decision on protest rights in England, the High Court of Justice has found that amendments made by the Secretary of State to the Public Order Act 1986 (‘POA Act’) were unlawful. The amended regulations had the effect of lowering the threshold of police intervention in protests. In its decision, the Court considered four grounds of challenges and accepted two of them. The decision is useful in understanding what is considered to be unlawful and the limitations in circumventing legislative processes.

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Landmark New Zealand decision on tort liability for greenhouse gas emissions

Smith v Fonterra [2024] NZSC 5

The New Zealand Supreme Court has delivered a landmark decision on a case brought by Māori elder, Mike Smith, against seven of New Zealand's largest greenhouse gas emitters.

Prior to this decision, the common law had entrenched the prevailing orthodoxy that tort claims could not be used to challenge or address climate change and that the regulation of greenhouse gas emitters was best left to the other branches of government through statutory regulation.
This case is significant as it marks one of the first decisions where a court has recognised that tort law can be used to challenge the greenhouse gas emissions of a private entity.

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Tash KhanHousing
The Federal Court awards increased damages on appeal for employee discriminated against due to his age.

Mr Gutierrez v MUR Shipping Australia Pty Limited [2023] FCA 399 

Alex Gutierrez successfully brought proceedings against MUR Shipping (‘MUR’) for breaches of the Age Discrimination Act 2004 (Cth). On 4 May 2023, the Australian Federal Court allowed an appeal challenging the damages awarded to Mr Gutierrez by the Federal Circuit and Family Court. The Court found in favour of Mr Gutierrez, substantially increasing his general damages and awarding him damages for economic loss. 

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Tash KhanHousing
Court finds that complainant was subject to systemic discrimination on the basis of her age and sex, acknowledging the role of unconscious bias.

Austin Health v Tsikos [2023] VSCA 82

On 17 April 2023, the Victorian Court of Appeal overruled the decision of the Victorian Civil and Administrative Tribunal (‘VCAT’) in favour of the respondent, Ms Tsikos, and dismissed the appeal by Austin Health. Although the Court of Appeal granted leave to appeal, none of the grounds were successful, instead agreeing with the single instance judgment and finding that VCAT had erred in its original decision.

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Tash KhanHousing
US Supreme Court Unanimously Rules in Favour of Whistleblower Protection in Murray v UBS Securities LLC: Landmark Decision Sets Precedent for Contributing Factor Test

Murray v UBS Securities LLC, 601 US 22 (2024)

This matter relates to a decision pursuant to §1514A(a) of the Sarbanes-Oxley Act of 2002 which allows whistleblower employees to seek relief against an employer that makes an adverse personnel decision against the employee because of their whistleblowing activity.

The United States Supreme Court unanimously held that a whistleblower who invokes §1514A must prove that their protected activity was a contributing factor in the employer’s unfavourable personnel action but need not prove that their employer acted with “retaliatory intent”.

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Tash KhanHousing
The Federal Court dismisses judicial review challenges brought by the Environment Council of Central QLD Incs in relation to the Ministerial approvals for two coal mining expansion projects in NSW

ECoCeQ v Minister for the Environment and Water (No 2) [2023] FCA 1208

The Federal Court dismissed two judicial review proceedings brought by the by the Environment Council of Central Queensland (‘ECoCeQ’) regarding the climate change effects of scope 3 coal mining emissions to Matters of National Environmental Significance under the Environmental Protection and Biodiversity Conservation Act 1999 (Cth) (‘the Act’).

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Federal Court rejects application relating to the repatriation of 34 women and children from North-East Syria

The Federal Court dismissed an application made by Save the Children Australia for habeas corpus of 34 women and children held in camps in North-East Syria finding that the Minister for Home Affairs and the Commonwealth of Australia did not have control over their detainment. However, the Court in a separate decision made no order as to costs, in an important decision on costs in public interest litigation. 

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MichelleBennettChild Rights
Supreme Court strikes down parts of new NSW anti-protest laws for impermissibly burdening the Commonwealth Constitution’s implied freedom of political communication

Kvelde v State of New South Wales [2023] NSWSC 1560

Two environmental activists who challenged New South Wales’ recently reformed anti-protest laws have been in-part successful. The Supreme Court declared parts of section 214A of the Crimes Act 1900 (NSW) (Crimes Act) invalid for impermissibly burdening the Commonwealth Constitution’s implied freedom of political communication.

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Tash KhanHousing
Compensation awarded to tenant who experienced psychological inconvenience caused by premises’ lack of security

Young v Chief Executive Officer (Housing) [2023] HCA 31

In the case of Young v Chief Executive Officer (Housing) [2023] HCA 31, the High Court allowed an appeal from the Court of Appeal of the Northern Territory Supreme Court, which concerned the Civil and Administrative Tribunal of the Northern Territory’s power under section 122 of the Residential Tenancies Act 1999 (NT) (Act).

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Tash KhanHousing
Magistrate failed to consider minor's right to privacy under the Victorian Charter

MB (a pseudonym) v Children’s Court of Victoria & Anor [2023] VSC 666

This case raises important human rights considerations of privacy and the State acting in the best interests of the child, in relation to the State’s retention of a child’s DNA information. Without the Victorian Charter, these fundamental considerations would not have been taken into account.

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Tash KhanChild Rights
Sydney Trains had unlawfully discriminated against potential employee

Annovazzi v State of New South Wales - Sydney Trains [2023] FedFamC2G 542

On 23 June 2023, the Federal Circuit and Family Court of Australia (FCFCA) found that Sydney Trains had unlawfully discriminated against Ms Renee Annovazzi (Ms Annovazzi) by dismissing her, prohibiting her participation in the trainee drivers course and requesting a medical note regarding her disabilities.

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Landmark recognition of human rights and environmental impacts as grounds for a recommendation against the grant of a mining lease

Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21

Waratah Coal Pty Ltd v Youth Verdict Ltd & Ors (No 6) [2022] QLC 21 (25 November 2022) involved the Land Court of Queensland making recommendations to the [Queensland] Minister for Resources (Minister) and the Chief Executive of the Department of Environment and Science (Chief Executive) on Waratah Coal Pty Ltd's (Waratah) applications for a mining lease and environmental authority to mine thermal coal in the Galilee Basin.

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High Court finds that electoral expenditure caps in NSW legislation impermissibly burden the implied freedom of political communication

Unions NSW v New South Wales [2023] HCA 4 

After “an urgent hearing of what became a non-urgent case”,1 the High Court found that a provision of NSW legislation did in fact burden the implied freedom of political communication. The High Court also determined that it did not have jurisdiction to hear or decide upon the validity of a repealed section of the same legislation, as it was no longer a sufficient “matter”.  

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Canadian Federal Court finds that government must take positive steps to repatriate citizens detained in Syria

Boloh 1(A), Boloh 2(A) male only, Boloh 12 and Boloh 13 v The King and the Minister of Foreign Affairs and International Trade [2023] FC 98 

The Federal Court of Canada found that the Canadian government had violated the Canadian Charter of Rights and Freedoms by failing to take all reasonable steps to repatriate the applicants in this case, who were Canadian citizens imprisoned in northeastern Syria on suspicion of being involved with Daesh/ISIS.   

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Full Federal Court finds mandatory visa cancellation not triggered by aggregate prison sentence

Pearson v Minister for Home Affairs [2022] FCAFC 203

In an important judgment delivered on 22 December 2022, the Full Court of the Federal Court of Australia (Allsop CJ, Rangiah and S Derrington JJ) found that an aggregate sentence of imprisonment did not constitute a single ‘term of imprisonment for 12 months or more,’ and therefore did not attract the operation of the mandatory visa cancellation powers at s 501(3A) of the Migration Act 1958 (Cth).

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Thomas Feng
UN Human Rights Committee finds Australia violated Torres Strait Islanders' human rights over climate inaction

Views adopted by the Human Rights Committee under article 5(4) of the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR), concerning communication No. 3624/2019

The United Nations Human Rights Committee (UNHRC) concluded in September 2022 that Australia breached the rights of Torres Strait Islanders to enjoy their culture, and be free from arbitrary interferences with their private life, family, and home under (as enshrined in articles 27 and 17 of the International Covenant on Civil and Political Rights (ICCPR)).

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MichelleBennett
New Zealand Supreme Court finds laws setting voting age at 18 are discriminatory on the basis of age

Make It 16 Incorporated v Attorney-General [2022] NZSC 134  

On appeal, the New Zealand Supreme Court has found that laws setting the voting age for New Zealanders at 18 are inconsistent with the right to freedom from discrimination on the basis of age, as set out in the New Zealand Bill of Rights Act 1990 (NZ) (Bill of Rights). Accordingly, a majority of the Court granted the appeal and made a declaration of inconsistency.

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Denial of open air and exercise a failure to treat people in prison with humanity and dignity

Davidson v Director-General, Justice and Community Safety Directorate [2022] ACTSC 83

In 2018, Mr Nathan Davidson was sentenced for six years and nine months, with a non-parole period of three years and eight months. Mr Davidson was held in solitary confinement on the ‘hard side’ of the Management Unit for a total of 63 days. Mr Davidson challenged the lawfulness of the rear courtyard under the Human Rights Act 2004 (ACT) (Human Rights Act) in the ACT Supreme Court.

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High Court: Decision-makers can 'defer' consideration of non-refoulement obligations when assessing whether to revoke a visa cancellation decision made on character grounds

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17

Where a person’s visa is mandatorily cancelled on character grounds under s 501(3A) of the Migration Act 1958 (Cth) (the Migration Act), s 501CA provides a procedure for the Minister to invite the former visa holder to make representations if they consider the cancellation decision should be revoked.

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Philippines Commission on Human Rights finds that the world’s largest emitters of greenhouse gas emissions engaged in “wilful obfuscation” of climate science and breached human rights

Commission on Human Rights of the Philippines, National Inquiry on Climate Change (2022)

On 6 May 2022, the Philippines Commission on Human Rights (Commission) released its findings from its inquiry into the world’s largest producers of crude oil, natural gas, coal and cement (Carbon Majors). The Commission released a report which established that corporations can be held responsible for the human rights violations that result from climate change.

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