Posts in Case Notes
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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Case NotesTash KhanRefugee & Asylum Seeker Rights
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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Case NotesTash KhanRefugee & Asylum Seeker Rights
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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Case NotesTash KhanDemocratic Freedoms
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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Case NotesTash KhanHuman Rights Act
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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Case NotesTash KhanRefugee & Asylum Seeker Rights
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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Case NotesTash KhanRefugee & Asylum Seeker Rights
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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Case NotesTash KhanEnvironmental and Climate Justice
Supreme Court of Victoria finds that random urine testing, and associated strip searches, are incompatible with human rights

Minogue v Thompson [2021] VSC 56 (16 February 2021)

The Victorian Supreme Court has found that whilst being held in prison, a person’s right to privacy and the right to be treated with dignity while deprived of liberty under the Charter of Human Rights and Responsibilities Act 2006 (Vic) were violated when he was subjected to random drug and alcohol testing and a strip search before providing a urine sample for such testing. While Justice Richards found that Dr Minogue’s Charter rights were breached, Her Honour is yet to make orders on relief.

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Case Notes, Case Notes 13- Prison/Conditions of Detention, Case Notes 14- Privacy, Case Notes Supreme Court of Victoria, Victorian charter of human rightsAnnaFordycePrisoner Rights, Privacy, Human Rights Law & Institutions
Cindy Miller inquest – summary of findings

Inquest into the death of Cindy Leigh Miller (COR 2018/1782)

On 22 January 2021, the Coroner handed down his findings in the inquest into the death of Ms Cindy Leigh Miller in the Coroner’s Court of Queensland.

Ms Miller died in custody at the Ipswich Watchhouse on 21 April 2018. Ms Miller’s cause of death was ‘mixed drug toxicity’. The Coroner found that it took police at the Watchhouse well over an hour to realise that Ms Miller was unresponsive.

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Case Notes, Case Notes 13- Prison/Conditions of Detention, Case Notes 17- Remand/BailAnnaFordycePrisoner Rights
US Supreme Court rules to reinstate in-person attendance requirements for abortion pill during Covid-19 pandemic

Food and Drug Administration v American College of Obstetricians and Gynaecologists 592 U.S.__ (2021)

A majority of the Supreme Court of the United States stayed an order by the District Court which suspended the requirement that people attend a hospital or clinic in-person in order to obtain mifepristone, a prescription drug used for medical abortions.

In July 2020, the District Court found that the in-person requirement posed an “undue burden” on people seeking an abortion in light of the COVID-19 pandemic. The Supreme Court’s decision reinstates the Food and Drug Administration’s requirement that patients attend a hospital, clinic, or medical office to pick up mifepristone and sign a disclosure form.

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Case Notes, Case Notes USA Court or TribunalAnnaFordyceHealth, Women’s Rights
New Zealand High Court finds the voting age restriction a justified limit on protected rights

Make It 16 Incorporated v Attorney-General [2020] NZHC 2630

The New Zealand High Court upheld the minimum voting age at 18 years as a justified limit on the right to be free from discrimination on the basis of age. As the Court found the age to be within a range of reasonable alternatives, this decision deferred the question of whether the voting age should be lowered to Parliament to decide.

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Case Notes, Case Notes 07- Equality/Non-Discrimination, Case Notes 20- Political participation, Case Notes International, Case Notes s07 - Limitations on Human RightsAnnaFordyceDemocratic Freedoms, Human Rights Law & Institutions
Victorian Supreme Court finds owners corporations must modify apartments for owners with a disability

Owners Corporation OC1-POS539033E v Black [2018] VSC 337 (21 June 2018)

The Supreme Court of Victoria has handed down a decision that owners corporations must undertake modification works to apartment buildings for owners and occupiers with a disability. The decision has been hailed as a significant win for people with a disability.

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Case Notes, Case Notes 04- DisabilityGuest UserDisability & Mental Health
Inadequate Treatment and Restraint of Person with Schizophrenia a Violation of Prohibition on Torture

Kucheruk v Ukraine [2007] ECHR Application No 2570/04 (6 September 2007)

The applicant, a man with chronic schizophrenia, was convicted of theft and hooliganism.  The Ukraine Court suspended the criminal proceedings against him committing him first for psychiatric treatment.  He was subsequently detained in the medical wing of a pre-trial detention centre for a month before being transferred to a specialised facility.  While detained, he was subjected to the practices of restraint and seclusion.

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Case Notes, Case Notes 13- Prison/Conditions of Detention, Case Notes 2007, Case Notes European Court of Human Rights, Case Notes InternationalMichelleBennettDisability & Mental Health
The State Must Facilitate and Enable Freedom of Peaceful Assembly

Bukta v Hungary [2007] ECHR Application No 25691/04 (17 July 2007) Makhmudov v Russia [2007] ECHR Application No 35082/04 (26 July 2007)

The European Court of Human Rights has considered two cases in which it held that the relevant State party had interfered with the right to freedom of peaceful assembly in art 11 of the European Convention of Human Rights.  That right is protected by s 16(1) of the Victorian Charter.  In both cases, domestic law required that the authorities be informed in advance of any planned public assembly.

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Case Notes, Case Notes 15- Protest, Case Notes 2007, Case Notes European Court of Human Rights, Case Notes InternationalMichelleBennettDemocratic Freedoms
Strip Searching may Constitute Torture or other Cruel, Inhuman or Degrading Treatment or Punishment

Frerot v France [2007] ECHR Application No 70204/01 (12 June 2007)

In a judgment handed down on 12 June 2007, the European Court of Human Rights held that particular strip searches conducted on the applicant violated the prohibition on degrading treatment in art 3 of the European Convention on Human Rights (‘ECHR’).  Further, certain restrictions placed on the applicant’s correspondence violated the right to privacy protected by art 8 of the ECHR.

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Case Notes, Case Notes 13- Prison/Conditions of DetentionMichelleBennettPrisoner Rights, Human Rights Law & Institutions
The Right to Freedom of Expression in a Commercial Context

Boehringer Ingelheim Limited & Ors v Vetplus Limited [2007] EWCA Civ 583 (20 June 2007) Canada (Attorney General) v JTI-Macdonald Corp 2007 SCC 30 (28 June 2007)

The scope and application of the right to freedom of expression in a commercial context has recently been considered by the UK Court of Appeal and the Supreme Court of Canada.  While neither court recognised a ‘corporate right’ to freedom of expression, both cases held that the right may be engaged by expression about commercial matters and, moreover, that the public have a prima facie right to ‘hear’ the expression (as opposed to a corporation having a right to ‘express’ the information).

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Case Notes, Case Notes 08- Freedom of ExpressionMichelleBennettDemocratic Freedoms, Business & Human Rights
Complaints of Ill-Treatment in Custody Must be Promptly Investigated and Plausibly Explained

Yilmaz v Turkey [2007] ECHR 17721/02 (5 June 2007)

The European Court of Human Rights has held that serious allegations of torture or other cruel, inhuman or degrading treatment or punishment must be the subject of expeditious, effective and independent investigation. It has further held that evidence of ill-treatment, particularly of persons in custody, will give rise to a rebuttable presumption that the ill-treatment occurred and shift the burden to the state to provide a ‘plausible explanation’ as to the injuries.

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Case Notes, Case Notes 2007, Case Notes European Court of Human Rights, Focus Area - PoliceMichelleBennettPrisoner Rights