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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Switzerland found to have contravened European Convention on Human Rights through response to climate change
On 9 April 2024, the European Court of Human Rights ('ECHR') handed down rulings in three important matters concerning the human rights impacts of climate change. These rulings highlight the ECHR's stance on the human rights implications of national climate policies.
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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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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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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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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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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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Belgium found to be in breach of European human rights obligations by failing to take substantive climate change mitigation action
VZW Klimaatzaak v Kingdom of Belgium & Others (30 November 2023)
In VZW Klimaatzaak v Kingdom of Belgium & Others (Klimaatzaak), the Brussels Court of Appeal ordered that Belgium and the Flemish and Brussels-Capital Regions reduce greenhouse gas (GHG) emissions by 55 percent by 2030 compared to 1990 levels.
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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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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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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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A Queensland non-profit has successfully applied for an exemption to employ only women
Children by Choice Association Incorporated [2023] QIRC 293
A Queensland non-profit organisation has successfully applied to the Queensland Industrial Relations Commission (the Commission) for an exemption to employ only women.
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State of Victoria was found vicariously liable for a school principal’s failure to adequately respond to antisemitic bullying by students
Kaplan v State of Victoria (No 8) [2023] FCA 1092
In Kaplan v State of Victoria (No 8) [2023] FCA 1092 (14 September 2023), the State of Victoria was found vicariously liable for a school principal’s failure to adequately respond to antisemitic bullying by students.
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Victorian Tribunal upholds importance of the Human Rights Charter in planning decision
Bespoke Development Group Pty Ltd v Merri-bek CC [2023] VCAT 758
Victorian Tribunal refuses to strike out use of the Human Rights Charter ground in planning decision.
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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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Victory for whistleblowers - the ECHR reaffirms corporate whistleblowers’ right to freedom of expression
Halet v Luxembourg Application No.21884/18
The applicant, Mr Raphael Halet, argued that his criminal convictions arising from disclosure of confidential corporate information constituted an infringement of Article 10 of the Convention, being his right to freedom of expression.
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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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Google not liable for defamatory hyperlinks in case with freedom of expression implications
Google LLC v Defteros [2022] HCA
By a majority, the High Court of Australia has found Google not liable in defamation when it hyperlinked defamatory material on its search engine. In doing so, the Court found that Google had not acted as the publisher of that material.
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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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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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Supreme Court finds that human rights not violated despite 58-day detention
Deng v Australian Capital Territory (No 3) [2022] ACTSC 262
Atem Deng (Deng) spent 58 days in custody and was released after charges were dismissed.
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Seeking Transparency on the Constitutional Validity in Recording Alleged Animal Rights Abuses
Farm Transparency International Ltd v New South Wales [2022] HCA 23
The proceeding involved a challenge to the validity of the prohibitions in ss 11 and 12, in their operation with s 8, of the Surveillance Devices Act 2007 (NSW). It was held that the provisions were valid and did not place an unnecessary burden on the implied freedom of political communication.
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“Serious violations”– use of lethal force by police and failure to investigate constitute violations of protection of right to life
Pârvu v Romania ECHR Application No. 13326/18
The Applicant’s husband, Mr Sorin Parvu, was killed during an incident on 26 September 2009, when police mistook Mr Parvu for an international fugitive they had been attempting to intercept and arrest.
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Court concludes that complainant had been subject to indirect discrimination in access to hospital
Ryan as Personal Representative of the Estate of the Late Peter John Ryan v Sunshine Coast Hospital and Health Service [2021] FCCA 1537
This case is an important example of indirect discrimination and how the Disability Discrimination Act can be used to uphold the rights of people with disabilities to be free from discrimination.
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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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Migration, detention and lawfulness: High Court holds detention of Brendan Craig Thoms was not unlawful due to ‘reasonable suspicion’ of the officer
Thoms v Commonwealth of Australia [2022] HCA 20
In the present case, Thoms pursued a claim of damages against the Commonwealth for unlawful imprisonment and the High Court, dismissing his claim, determined his detention was not unlawful.
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High Court finds citizenship-stripping provision invalid
Alexander v Minister for Home Affairs [2022] HCA 19
This decision is of significance because it recognises that the exile of a citizen is a punitive action that has serious consequences for the individual involved
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Canadian Supreme Court rules on unconstitutionality of consecutive first-degree murder sentences
Her Majesty The Queen and Attorney General of Quebec v Alexandre Bissonnete 2022 SCC 23
Bissonnette is a landmark decision of the Supreme Court of Canada which held that life sentences without a possibility of parole constitute cruel and unusual punishment.
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New South Wales Court of Appeal affirmed the decision of the NCAT in Anti-Discrimination Act case
Vitality Works Australia Pty Ltd v Yelda (No 2) [2021] NSWCA 147
On 19 July 2021, the New South Wales Court of Appeal affirmed the decision of the New South Wales Civil and Administrative Tribunal (NCAT) in favour of the respondent, Ms Yelda and dismissed the appeal by Vitality Works Australia Pty Ltd (Vitality Works).
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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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High Court: Restrictions on duplicating political party names are constitutional
Ruddick v Commonwealth of Australia [2022] HCA 9
Mr John Ruddick (the applicant) challenged the constitutional validity of recent amendments to the Commonwealth Electoral Act 1918 (Cth) (the Act) which limit registration of political parties whose name or logo contains a word in common with that of a previously registered political party.
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Appeal allowed in disability discrimination employment case
Ryan v Commissioner of Police, NSW Police Force [2022] FCAFC 36
Mr Ryan commenced proceedings against the Commissioner of Police, NSW Police Force alleging that the Commissioner had engaged in unlawful discrimination on the grounds of disability in contravention of s 15(2)(b) and (d) of the Disability Discrimination Act 1992.
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Canadian court orders government to pay legal fees in First Nations Drinking Water Class Action
Tataskweyak Cree Nation v Canada (Attorney General), 2021 FC 1442 (CanLII)
The proceeding involved a court determination about whether fees payable to the Applicants' counsel were "fair and reasonable" in accordance with established case law, following negotiation of a settlement agreement with the state of Canada.
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Victorian Court of Appeal grants appeal against decision that random urine testing, and associated strip searches, are incompatible with human rights
Thompson v Minogue [2021] VSCA 358
The Victorian Court of Appeal granted leave to appeal against the Supreme Court’s earlier decision that the directions at Barwon Prison that Dr Craig Minogue submit to random urine tests, and strip searches before the tests, were incompatible with his rights to privacy and to be treated with dignity while deprived of liberty in breach of section 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter).
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Federal Court: Blowing the whistle to the media is not a freestanding workplace right
Quirk v Construction, Forestry, Maritime, Mining and Energy Union [2021] FCA 1587
A recent decision from Perram J of the Federal Court has confirmed that, in the absence of specific protections under whistleblowing laws, blowing the whistle to the media about wrongdoing at work is not a workplace right for the purpose of general protections in the Fair Work Act 2009 (Cth).
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Supreme Court of Queensland finds solitary confinement orders breach human rights
Owen-D'Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273
Mr Michael Owen-D’Arcy, a person in prison confined to a maximum security unit, successfully applied for judicial review under the Judicial Review Act 1991 (Qld) and relief under the Human Rights Act 2019 (Qld) in respect of two related decisions that sought to continue the solitary confinement that had been imposed on him since 2013.
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NSW District Court considers danger caused by COVID-19 outbreak in prison extra curial punishment
R v Zerafa [2021] NSWDC 547
During a sentencing hearing, the New South Wales District Court considered the “extremely concerning” conditions in which Mr Storm Leigh Zerafa was detained while on remand at the Parklea Correctional Centre when determining his head sentence (the maximum sentence for Mr Zerafa to serve).
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Inquest into the death of Raymond Noel
COR 2017/3012, Findings, Coroner Olle, 20 September 2021
Raymond Noel, a Gunnai, Gunditjmara and Wiradjuri man, died in a car accident following a police pursuit on 25 June 2017.
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Surveillance documents not automatically exempt from Freedom of Information requests in Victoria
Akers v Victoria Police (Review and Regulation) [2021] VCAT 1060
A recent decision of the Victorian Civil and Administrative Tribunal confirms that there is no blanket exemption for surveillance documents under the Freedom of Information Act 1982 (Vic).
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