The High Court of Australia, by majority of 4-3, has held that Aboriginal people are not “aliens” and therefore cannot be deported under laws passed under the “aliens power” conferred on the Commonwealth Parliament by s 51(xix) of the Constitution.
Read MoreThe UK Supreme Court (the Court) examined whether the local authority had failed to fulfil a common law duty to protect two children, Colin and Graham, from harm inflicted by their neighbours. Drawing on the facts of the case, the Court held that the council was not liable for negligently failing to exercise its social services functions as there was no recognisable basis for a cause of action. While the Court dismissed the appeal, the decision in Poole leaves open the possibility for a duty of care to exist where an assumption of responsibility can be established.
Read MoreIn a landmark decision in which a group of Indian farmers and fishing communities sued the International Finance Corporation (IFC) in relation to pollution from a coal-fired power plant financed by them, the Supreme Court of the United States (Supreme Court) held that international organisations that have a sufficient nexus to the United States, such as the Food and Agriculture Organisation and World Bank, no longer enjoy full immunity from suit.
Read MoreThe Full Court of the Federal Court of Australia has reminded Government decision-makers of their responsibility to properly consider risks of harm and threats to safety when cancelling or refusing a visa on ‘character’ grounds.
The Court unanimously ruled that the Assistant Minister made a jurisdictional error in deciding not to revoke the cancellation of Mr Omar’s visa, by failing to adequately consider risks of harm he would face on return to Somalia, including by deferring a consideration of Australia’s international non-refoulement obligations.
Read MoreThe High Court of England and Wales has confirmed that the use of automated facial recognition technology (AFR) to match the faces of members of the public against police watchlists is lawful. The Court found that although the use of AFR infringes an individual’s right to respect for their privacy, the interference is justifiable for law enforcement purposes, and the current UK legal regime is adequate to ensure its appropriate and non-arbitrary use.
This is the first time any court has considered AFR, and marks an important test for the legal parameters of this technology as it develops and is deployed more widely.
Read MoreThe recent decision in Cruse v State of Victoria [2019] VSC 574 concerns the use of force by police during a raid to arrest an individual suspected of committing a terrorist offence. The target of the raid sued the State of Victoria for injuries sustained during his arrest by police.
Read MoreComcare v Banerji [2019] HCA 23
In a recent case, the High Court of Australia has confirmed there is not an unfettered right to the implied freedom of political communication and that Australian Public Service (APS) employees must at all times behave in a way that upholds the values of the APS, which extends to comments made anonymously on social media.
Read MoreChristian Medical and Dental Society of Canada v College of Physicians and Surgeons of Ontario [2019] ONCA 393
Two policies required Ontario medical professionals to refer their patients to alternative health care providers, even if the medical professionals conscientiously objected on religious grounds to providing the health care.
There were two key issues in this case:
Did the mandatory referral policies infringe the right to freedom of religion? If so, were the means chosen to limit the right demonstrably justified?
Were the mandatory referral policies discriminatory?
The Ontario Court of Appeal balanced the rights of patients to access equitable health care with the rights of physicians with religious convictions and held that:
While the policies infringed the right to religious freedom, this was justified and reasonable in the circumstances; and
The policies did not discriminate against physicians with a religious belief.
The High Court (the Court) upheld the validity of Queensland anti-corruption measures which prohibit the making of political donations by property developers. The decision supports legislative efforts to improve transparency and accountability in electoral funding. However, it may also be seen as giving permission to parliaments to ban political donations from certain classes of donors even where strong evidence of corruption is lacking.
Read MoreIn this landmark decision, the High Court upheld the constitutional validity of safe access zone laws in Victoria and Tasmania, in particular, provisions that prohibit certain communications and protests about abortion within 150 metres of abortion clinics.
Read MoreThe High Court in hearing its first ever native title compensation case, ultimately reduced the amount of native title awarded to the Ngaliwurru and Nungali Peoples of Timber Creek (Claimants). However, significantly, the Court rejected the appellants’ arguments against the cultural loss amount, upholding the trial judge’s original determination of $1.3 million.
Read MoreOn 5 March 2019, the European Court of Human Rights (First Section) (the Court) declared inadmissible the applications of eight individuals who claimed that their arrests and subsequent detentions in London during Prince William and Catherine Middleton's wedding were a breach of their rights to liberty and security under art 5(1) of the European Convention on Human Rights (the Convention).
Read MoreThe Northern Territory Civil and Administrative Tribunal (the Tribunal) has awarded compensation to Aboriginal tenants in the remote community of Santa Teresa over the Northern Territory government's failure to provide habitable public housing. Residents of 70 households in Santa Teresa brought the action against the Northern Territory government. In this decision, the first four of these cases proceeded to hearing, and the Tribunal awarded compensation in each case.
Read MoreThe Northern Territory Civil and Administrative Tribunal (the Tribunal) initially examined the cases of Jasmine Cavanagh, Enid Young, Robert Conway and Clayton Smith in Various Applications from Santa Teresa v Chief Executive Officer (Housing) [2019] NTCAT 7. The case involved Aboriginal residents of the remote community of Ltyentye Apurte (also known as Santa Teresa) challenging the poor housing conditions they were subjected to. A summary of that case is available here.
Two of the people involved in that case – Enid Young and Robert Conway (the appellants) – appealed that decision to the Northern Territory Supreme Court. The respondent was the Chief Executive Officer (Housing), a body corporate created under the Housing Act 1982 (NT) for the purpose of entering into public housing tenancy agreements.
The Northern Territory Supreme Court ruled in favour of Ms Young and the late Mr Conway on two grounds in their appeal and established a precedent that remote community tenants must be provided with housing that meets contemporary standards of ‘humaneness, suitability and reasonable comfort’.
Read MoreThe High Court of Australia unanimously held that a NSW law that imposed a lower cap on the allowable electoral expenditure for third party campaigners compared with expenditure allowed for political parties and candidates was unconstitutional, as it impermissibly burdened the implied freedom of political communication.
Read MoreThe European Court of Human Rights (ECHR) has held that an "Extremism Database" maintained by UK police violated an activist's right to privacy under Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention).
Read MoreNon-resident Canadian citizens who had been residing outside of Canada for five or more consecutive years (Non-Residents) lost the right to vote in Canadian federal elections under provisions of the Canada Elections Act, S.C. 2000, c 9 (the Act). Two Non-Residents Gillian Frank and Jamie Duong (Appellants) challenged this under the Canadian Charter of Rights and Freedoms (the Charter) and ultimately succeeded as the infringements on their voting rights were held to be unconstitutional.
Read MoreThe Republic of Nauru v WET040 [2018] HCA 60
On 7 November 2018, the High Court of Australia (HCA), comprised of Gageler, Nettle and Edelman JJ, unanimously allowed an appeal from a decision of the Supreme Court of Nauru.
Read MoreTTY167 v Republic of Nauru
The High Court of Australia has decided that Nauru's Refugee Status Review Tribunal (Tribunal) acted unreasonably in refusing the appellant's protection application after the appellant failed to appear before the Tribunal at a scheduled hearing.
Read MoreThe Supreme Court of Canada dismissed an appeal and upheld an order requiring appellants Vice Media Canada Inc. (Vice) and its journalist Ben Makuch (the appellants) to produce communications with Farah Shirdon, a Canadian man suspected of joining ISIS in Syria. The case questions how to balance the freedom and protection of the press with the state’s criminal investigative responsibilities.
Read MoreThe High Court of Australia demonstrated its reluctance to uphold entitlements to confidentiality and privilege where there are egregious breaches of one’s right to a fair trial and legal professional privilege. The main issue before the High Court was between Victoria’s Director of Public Prosecutions (DPP), who wanted to disclose information discovered by Victoria’s anti-corruption commission, and the Chief Commissioner of Victoria Police (Police Commissioner), who opposed disclosure because of security risks to a police informant (EF) who was simultaneously acting as a defence barrister for Tony Mokbel and six of his criminal associates (Mokbel and Associates).
The High Court found in favour of disclosure, holding that EF’s actions were “fundamental and appalling breaches of [her] obligations as counsel to her clients and of her duties to the court”. The Court also described the actions of Victoria Police as “reprehensible conduct in knowingly encouraging her” and “atrocious breaches of the sworn duties imposed on every police officer”.
Read MoreThe Victorian Supreme Court has confirmed that the capacity test under the Mental Health Act 2014 (Vic) (MHA) must be interpreted and applied in a way that is compatible with the human rights of persons receiving compulsory mental health treatment under the Victorian Charter of Human Rights and Responsibilities Act 2006 (Charter). This decision has significant implications for the human rights of persons with mental illness, and particularly for patients who may be subject to compulsory mental health treatment under the MHA.
Read MoreIn a unanimous decision, the United Kingdom Supreme Court overturned the decision of the Northern Ireland Court of Appeal that found a bakery's refusal to supply a cake with the message "support gay marriage" to a gay man amounted to direct discrimination on the grounds of sexual orientation. The United Kingdom Supreme Court found that the bakery's refusal was centred on promoting the message and the bakers would have come to the same decision regardless of who requested it. In the Court's opinion it did not amount to discrimination on the grounds of sexual orientation, or religious beliefs or political opinion.
Read MoreThe Victorian Supreme Court has confirmed that courts must consider the distinct cultural rights of Aboriginal people under the Victorian Charter of Human Rights and Responsibilities Act 2006 (the Charter) when making decisions in relation to an Aboriginal person’s request to be heard in the Koori Court. This decision has significant implications for Aboriginal people across Victoria and for decisions in the Courts about whether an Aboriginal person has access to the Koori Court.
Read MoreThe European Court of Human Rights has found that the UK's bulk interception regime violates Article 8 of the European Convention on Human Rights (right to respect private and family life)because of insufficient safeguards governing the selection of intercepted communications and related communications data. Further, the Courtheld that the regime for obtaining data from communications providers violated Article 8 of the Convention because it was not in accordance with EU law that requires data interference to combat "serious crime" (not just "crime"), and for access to retained data to be subject to prior judicial or administrative review. Finally, the Court found that the bulk interception regime and the regime for obtaining communications data from communications service providers violated Article 10 (right to freedom of expression) because of insufficient safeguards for confidential journalistic material.
Read MoreThe Victorian Court of Appeal dismissed an appeal against sentence of 5 years imprisonment with a non-parole period of 3 years for armed robbery. This case provides useful guidance on the weight to be afforded to an Aboriginal offender's participation in the Koori Court process.
Read MoreThe UK High Court has found that the British Broadcasting Corporation (BBC) infringed the privacy of renowned musician Sir Cliff Richard (Sir Cliff) by broadcasting a raid by the South Yorkshire Police (the SYP) following an allegation of historical sexual offences.
Read MoreThe European Court of Human Rights has found that Russia breached human rights conventions in the prosecution and imprisonment of feminist protest band Pussy Riot.
Read MoreJustice Beale of the Victorian Supreme Court has rejected a challenge to an earlier order prohibiting the wearing of a nikab by a spectator during the trial of three men accused of plotting a Christmas bombing of Federation Square in Melbourne's CBD. Ms Aisha Al Qattan, the wife of one of the accused, submitted that a prohibition against wearing the nikab while in the public gallery of the court breached Ms Al Qattan's right of religious freedom and right to participate in public life. Both rights are enshrined in the Victorian Charter of Human Rights (Charter).
Read MoreA landmark decision of the Hong Kong Court of Final Appeal has found that the Director of Immigration acted unlawfully by administering an immigration policy in a manner that discriminated against same-sex couples. The policy had prevented dependant visas from being granted to the same-sex spouse of a person resident in Hong Kong on an employment visa.
Read MoreIn a recent interlocutory ruling, Justice Bell of the Supreme Court of Victoria excluded from evidence admissions obtained from an elderly Italian man who spoke limited English during a police interview conducted without an interpreter.
Read MoreIn a 5-4 decision, the Supreme Court has upheld the third iteration of President Trump’s ‘Travel Ban’.
Read MoreThe US Supreme Court held that a warrant is required for police to access cell site location information (CSLI) from a cell phone company under the Fourth Amendment of the US Constitution. Chief Justice Roberts for the majority stated that the Court would "decline to grant the state unrestricted access to a wireless carrier's database of physical location information".
Read MoreThe 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.
Read MoreIn a unanimous decision, the High Court has held that section 74AAA of the Corrections Act 1986 (Vic) did not prevent the plaintiff from seeking parole after a 28 year sentence.
Read MoreIn June this year, the European Court of Human Rights (ECHR) ruled that a scheme providing for the bulk interception of electronic signals in Sweden for foreign surveillance purposes, was consistent with the rights set out in the European Convention of Human Rights (Convention). The decision cements the high threshold required for the protection of the right to respect for private and family life, the home and correspondence under article 8 of the Convention.
Read MoreIn two recent decisions, the Supreme Court of Canada (“Court”) held that the law societies of British Columbia and Ontario were entitled to deny accreditation to a law school which required its students, on religious grounds, to adhere to a covenant allowing sexual intimacy only between a married man and woman.
Read MoreThe UK Supreme Court (“Court”) found in favour of the respondent, Mr Smith, who argued that he was a “worker” for Pimlico Plumbers Ltd (“Pimlico”) under the relevant employment legislation. The Court rejected Pimlico’s argument that Mr Smith was a “self-employed operative” and upheld the previous decisions of the Employment Tribunal (“Tribunal”), Employment Appeal Tribunal and Court of Appeal.
Read MoreThe High Court has allowed an appeal against a decision of the Victorian Court of Appeal, leaving open the possibility for Google to be sued in defamation for allegedly defamatory results appearing in Google searches.
Read MoreIn a 7-2 decision, the US Supreme Court overturned a decision of the Colorado Civil Rights Commission that a baker could not refuse to sell a wedding cake to a same-sex couple.
Read MoreThe Chamber of the European Court of Human Rights (Court) held, in two separate decisions, that Lithuania and Romania both committed violations of the European Convention on Human Rights (Convention) due to their compliancy in the United States Central Intelligence Agency’s (CIA) rendition program.
The applicants in both cases were suspected of involvement in carrying out terrorist attacks and were detained by the CIA. It was alleged that Lithuania and Romania, respectively, had allowed the CIA to transport the applicants into their jurisdiction, where they had been subjected to torture and arbitrary detention by the CIA.
Read MoreIn two recent decisions, the Supreme Court of Canada considered the whether several provisions of Quebec province’s gender pay equity legislation, the Pay Equity Act 1996, were contrary to section 15 of the Canadian Charter of Rights and Freedoms (addressing systemic wage discrimination against women).
Read MoreMs Ilinka Čakarević, a Croatian national, brought proceedings against the Croatian government in relation to debt recovery proceedings brought by the government after they overpaid her unemployment benefits.
Read MoreBy a narrow 5-4 majority, the United States Supreme Court held that it did not have the authority under the Alien Tort Statute (ATS) to determine civil liability for foreign corporations that engage in gross human rights violations in contravention of international law.
Read MoreOn 18 April 2018, the High Court of Australia handed down its first decision considering the contentious 'fast track review' process.
Read MoreThe Family Court of Australia has declared that transgender young people diagnosed with gender dysphoria no longer need to apply to the Court for Stage 3 treatment where the transgender teenager has been diagnosed with gender dysphoria, the transgender teenager's treating practitioners agree that the child is Gillick competent and there is no controversy regarding the application.
Read MoreThe Grand Chamber of the European Court of Human Rights held that a Swiss court’s decision to refuse jurisdiction to hear a claim did not violate rights of access to a court. The claimant, a Swiss national, had sought compensation for torture inflicted by the Tunisian Republic.
Read MoreThe European Court of Human Rights has rejected an appeal brought by a German citizen who claimed his right to freedom of expression had been impermissibly burdened. The applicant had published an image of Nazi-era SS chief Heinrich Himmler in SS uniform wearing a swastika armband on his personal blog. He was convicted by a German court under a law which prohibited the use of propaganda material of unconstitutional organisations, including the Nazis.
Read MoreThe Supreme Court of Ireland has held that unborn children have no rights under the Irish Constitution beyond the right to life. The decision is significant in light of the upcoming "abortion referendum" as it confirms that only Article 40.3.3 of the Constitution needs to be changed in order to legalise abortion in Ireland.
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