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).
Read MoreThe 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.
Read MoreIn 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.
Read MoreBy 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.
Read MoreMr 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.
Read MoreA 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).
Read MoreA 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).
Read MoreOn 17 August 2021, the Supreme Court of Victoria dismissed a challenge to the validity of the Victorian Government’s lockdown laws. Specifically, Niall JA held that measures to restrict movement in the context of the COVID-19 pandemic under the Public Health and Wellbeing Act 2008 (Vic) and associated directions did not impermissibly burden the implied freedom of political communication.
Read MoreThe High Court of Australia, by majority of 5-2, has held that the Foreign Influence Transparency Scheme Act 2018 (Cth) (FITS Act) does not impermissibly burden the implied freedom of political communication by imposing registration obligations with respect to communications activities.
Read MoreThe Full Court of the Federal Court of Australia (the Court) dismissed an application by LibertyWorks Inc which challenged the validity the Health Minister's power to prevent Australians from leaving the country due to the COVID-19 pandemic. Drawing heavily on the context and purpose of the Biosecurity Act 2015 (Cth), the Court held that while it may be accepted that the travel restrictions were "harsh" and intruded on individual rights, they were nevertheless authorised by the legislation.
Read MoreOn 25 May 2021, the Grand Chamber of the European Court of Human Rights (Grand Chamber) ruled that the United Kingdom's bulk surveillance regime was incompatible with Article 8 (which provides protections for the right to respect for private and family life) and Article 10 (which provides for the protection of freedom of thought, conscience and religion) of the European Convention on Human Rights (ECHR).
Read MoreIn a potentially significant decision, the High Court of England and Wales has accepted the existence of a duty of care to protect a whistleblower and awarded damages of more than US$10 million. The case raises the intriguing possibility that a cognate duty might exist in Australian law.
Read MoreUnder the Victim Rights and Support Act 2013 (NSW) (VRSA), victims of an "act of violence" are eligible for compensation and for payment of counselling costs.
Read MoreThe High Court rejected a Melbourne business owner's claim that Victoria's Lockdown Directions infringed an implied freedom of movement from the Constitution. The Court's decision upheld the settled approach to constitutional interpretation, confirming the Constitution provides no basis for an implication of freedom of movement that limits legislative or executive power.
Read MoreOn 26 October 2020, the Supreme Court of the United States dismissed an application by the Democratic National Committee (DNC) to extend Wisconsin's deadline for the receipt of mail-in ballots for the 2020 Presidential election by six days.
Read MoreThe 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.
Read MoreA Full Bench (three Judges) of the New Zealand High Court unanimously held that the restrictions imposed by the New Zealand Government in response to the COVID-19 pandemic requiring New Zealanders to stay at home were consistent with the New Zealand Bill of Rights Act 1990 (NZBORA). The Court also held, however, that some public statements went beyond what the orders then permitted and some restrictions were therefore, for a limited time, unlawful.
Read MoreThe Court of Appeal of England and Wales has held that the use of automated facial recognition technology (AFR) by the South Wales Police Force (SWP) unlawfully interfered with Edward Bridges' right to respect for and non-interference by public authorities in his private and family life, which is protected by Article 8 of the European Convention on Human Rights (ECHR).
Read MoreOn 8 August 2020, the Attorney-General successfully sought a mandatory injunction (court order) in the Supreme Court to prevent a planned sit-in protest organised by a group that advocates for the rights of refugees. The protest was to take place on the Story Bridge, a major traffic route in Brisbane, and be a ‘sit-down and not-move-on assembly’ during which arrests would be expected.
Read MoreOn 16 July 2020, the United States Supreme Court, without opinion, denied an application to vacate the Florida Eleventh Circuit Court’s (Eleventh Circuit) stay of a permanent injunction. The permanent injunction would have prevented Florida from enforcing a law that requires people with a felony conviction to pay all outstanding fines, fees, and restitution payments, in order to be able to vote.
Justice Sotomayor, joined in dissent by Justices Ginsburg and Kagan, reproached the “Court’s inaction [as continuing] a trend of condoning disenfranchisement”.
Read MoreThe Federal Court of Australia upheld the decision of the Australian Border Force (ABF) to refuse an application by an ultra-orthodox Jewish couple for an exemption to the current travel ban, in order to attend their son’s wedding in the United States.
The Court found the ABF had correctly determined that the couple did not provide a “compelling reason for needing to leave Australian territory”, as required for an exemption.
Read MoreOn 18 May 2020, the US District Court for the Southern District of New York held that Mayor Bill de Blasio's 25 March Executive Order, which restricted non-essential public gatherings to curb the spread of COVID-19, did not violate the Plaintiff's First Amendment right to freedom of speech.
Although the decision only considered the severity of the pandemic in New York, it could also be relied on to restrict public protest throughout the duration of the pandemic in the United States. This could be particularly problematic in the context of the Black Lives Matter protest movement, which re-emerged on a global scale in early June.
Read MoreIn a potentially significant decision, the High Court of England and Wales has accepted the existence of a duty of care to protect a whistleblower and awarded damages of more than US$10 million.
Read MoreThe High Court of Australia unanimously held that the search warrant relied upon by the Australian Federal Police to enter and search the residence of journalist, Ms Annika Smethurst, was invalid. The invalidity of the search warrant rendered the AFP's entry into and search of Ms Smethurst's residence unlawful and an act of trespass.
Read MoreThe Australian Institute for Progress (AIP), a think tank based in Queensland, sought declaration from the Queensland Supreme Court that due to ordinary rules of statutory interpretation, it was able to accept political donations from property developers.
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 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 MoreThe 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 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 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 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 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 MoreIn a 5-4 decision, the Supreme Court has upheld the third iteration of President Trump’s ‘Travel Ban’.
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 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 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 English High Court has found an episode of a documentary-reality series broadcast by Channel 5, in which a family was shown being evicted from their home, breached the family’s right to privacy under article 8 of the European Convention on Human Rights. This right was held to take precedence over Channel 5’s freedom of expression.
Read MoreThe Supreme Court of the United States has held that a guilty plea does not, by itself, bar a criminal defendant from appealing his conviction on the ground that the statute under which he was convicted violated the Constitution.
Read MoreThe European Court of Human Rights unanimously held that journalistic newsgathering during a public demonstration is a protected aspect of press freedom under article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Any attempt to remove journalists from a scene of demonstration must thus be subject to “strict scrutiny”.
Read MoreThe New Zealand High Court held that two cartoons published in New Zealand newspapers featuring negative depictions of Māori and Pasifika did not breach hate speech provisions in the Human Rights Act 1993 (NZ). The Court balanced the publisher’s right to freedom of speech under the New Zealand Bill of Rights Act 1990 (NZ) against the government’s interest in protecting individuals from harmful speech and discrimination.
Read MoreSecretary of State for the Home Department v Watson [2018] EWCA Civ 70
The United Kingdom Court of Appeal has decided that aspects of the Data Retention and Investigatory Powers Act 2014, which has now been repealed, were unlawful. The Court found that allowing public bodies access to the phone records and internet activity of individuals in the United Kingdom, in circumstances where there is an absence of suspicion of serious crime and independent sign off allowing access, is illegal.
Read MoreThe High Court of South Africa decided that a statutory provision criminalising the convening of more than 15 people without notice was inconsistent with the constitutional right to freedom of assembly, as the limitation contained within the provision was not reasonable or justifiable in an open and democratic society.
Read MoreThe European Court of Human Rights unanimously held that the prosecution of a Swiss non-governmental organisation which had labelled a Swiss politician's speech as "verbal racism" breached the organisation's right to freedom of expression, as protected by Article 10 of the European Convention of Human Rights.
Read MoreThe European Court of Human Rights ruled that the Romanian Government’s decision to dismiss a member of the public service for the unauthorised disclosure of state documents obtained outside his employment to a tabloid newspaper was a legitimate restriction of freedom of expression under Article 10 of the European Convention of Human Rights. In doing so, the Court emphasised the particular obligation of loyalty held by public servants and the need to prevent disclosure of confidential information and protect the rights of others.
Read MoreThe Nauruan Government recently abolished the mechanism by which parties could appeal decisions from the Supreme Court of Nauru to the High Court of Australia, leaving asylum seekers without an avenue of appeal to challenge unsuccessful decisions of the Supreme Court. This move has come shortly after the High Court's recent landmark decision in BRF038 v The Republic of Nauru [2017] HCA 56 where it held that, in certain circumstances, appeals from the Supreme Court to the High Court lie as of right, without the parties first having to seek leave of the Court.
Read MoreThe European Court of Human Rights has overturned a decision of the Iceland Supreme Court and upheld a well-known commentator’s right to respect for his private life under Article 8 of the European Convention on Human Rights, over an individual’s right to exercise freedom of expression under Article 10 in the context of an Instagram post accusing him of rape.
Read MoreThe High Court of Australia has held that key provisions of a Tasmanian law restricting protest are invalid because they violate the implied freedom of political communication in the Australian Constitution.
Read MoreTamiz v the United Kingdom (Application no. 3877/14) [2017] ECHR (12 October 2017)
The European Court of Human Rights has reinforced the importance of the freedom of expression in the European Convention on Human Rights in the context of online forums. The Court found that the English courts had conducted “an appropriate balancing exercise” when determining that ‘vulgar’ comments posted on a blog operated by Google Inc. did not pose enough of a risk to the applicant’s reputation (Article 8) to warrant restricting the freedom of expression of Google Inc. and its users (Article 10).
Read MoreThe majority of the Grand Chamber of the European Court of Human Rights found that non-disclosure of information revoking a security clearance did not deny the applicant the right to a fair trial.
Read MoreThe United States Supreme Court has struck down a section of the US Federal trademark law known as ‘the Lanham Act’ on the basis that it violates the First Amendment’s free speech clause.
Read MoreThe Supreme Court in the United Kingdom recently upheld a ruling by the Court of Appeal that hotel owners Peter and Hazelmary Bull, a Christian couple, discriminated against homosexual couple Martin Hall and Stephen Preddy on the grounds of sexual orientation, when they refused to rent them a double room in their hotel.
Read MoreThe Victorian Civil and Administrative Tribunal has dismissed the claims of 16 police officers (the applicants) that they were discriminated against by the introduction, promulgation and enforcement of a new policy which banned male officers from having long hair or facial hair (other than a moustache). VCAT found that the applicants had been directly discriminated against in the enforcement of the policy, by the threat of disciplinary action, and through an email implying the applicants were unprofessional and not trustworthy. However, that discrimination was not found to be unlawful as it was considered to be authorised by the Police Regulation Act 1958 (Vic) (PR Act). A victimisation claim was also dismissed, as was the applicants’ claims that the respondent had failed to properly consider their right to freedom of expression in the Charter of Human Rights and Responsibilities 2006 (Vic).
Read MoreCore Issues Trust v Transport for London [2013] EWHC 651 (Admin) (22 March 2013)
The English High Court of Justice held that Transport for London's decision to prevent the Core Issues Trust from advertising a confrontational message against lesbians, gay men, bisexual and transgender individuals on London's bus network did not contravene Transport for London's duty to act compatibly with the European Convention on Human Rights.
Read MoreIrina Fedotova v Russian Federation, UN Doc CCPR/C/106/D/1932/2010, 19 November 2012
The Human Rights Committee found the Russian Federation to have acted in violation of Articles 19 (Freedom of Expression) and 26 (Prohibition of Discrimination) of the ICCPR. The case concerned the treatment of LGBT human rights activist Irina Fedotova, who was arrested by the police and fined by a Russian Administrative Court on grounds that she breached legislation on “public actions aimed at the propaganda of homosexuality among minors” after having displayed posters promoting tolerance towards homosexuality near a local school.
Read MoreClarke v Nationwide News Pty Ltd trading as The Sunday Times [2012] FCA 307 (27 March 2012)
Justice Barker in the Federal Court held that Nationwide News, the publisher of The Sunday Times newspaper in Perth, was liable under section 18C of the Racial Discrimination Act 1975 (Cth) (RDA) for comments posted by readers underneath articles in the online version of the paper, which amounted to racial vilification.
Read MoreS.L. v. Commission scolaire des Chênes 2012 SCC 7 (17 February 2012)
The Supreme Court of Canada has upheld the Quebec Superior Court's decision that a state-organised, multi-faith, ethics and religious class did not infringe the right to freedom of conscience and religion. The Court held that determining whether a person's right to religion was infringed required a subjective understanding of the belief alleged to be infringed and objective determination of whether an infringement occurred.
Read More
Bull & Bull v Hall & Preddy [2012] EWCA Civ 83 (10 February 2012) Summary
The England and Wales Court of Appeal held that a hotel policy of providing double rooms only to married persons constituted unlawful direct discrimination on the grounds of sexual orientation against persons in a civil partnership. The hoteliers submitted that the policy, a manifestation of their genuinely held religious beliefs, was protected by articles 8 and 9 of the European Convention on Human Rights. The Court held that, to the extent that anti-discrimination regulations limit such manifestation, the limitations were necessary in a democratic society for the protection of the rights and freedoms of same-sex couples.
Read MoreVejdeland & Ors v Sweden [2012] ECHR 242 (9 February 2012)
The European Court of Human Rights has rejected an application brought by four Swedish nationals who were convicted under Swedish domestic law for making offensive and prejudicial comments against homosexuals. The applicants sought an order from the Court that the convictions violated their freedom of expression as protected under Article 10 of the European Convention of Human Rights. The decision constitutes the first time the Court has applied principles relating to hate speech to comments made against homosexuals.
Read MoreDonaldson v the United Kingdom - 56975/09 [2011] ECHR 210 (25 January 2011)
A majority of the European Court of Human Rights declared that an application concerning a ban on all prisoners in Northern Ireland wearing emblems with a political or sectarian connotation outside of their prison cells was inadmissible.
Read MoreIn the Matter of Marriage Commissioners Appointed Under The Marriage Act, 1995, 2011 SKCA 3 (10 January 2011)
In a landmark ruling, the Court of Appeal for Saskatchewan, In the Matter of Marriage Commissioners Appointed Under The Marriage Act, 1995 (Marriage Commissioner Case), held that that a marriage commissioner’s refusal to solemnize same-sex marriage on the basis of religious beliefs is unlawful. The Court held that two proposed amendments to the Marriage Act 1995 would offend the Canadian Charter of Rights and Freedoms and, if enacted, ‘would violate the equality rights of gay and lesbian individuals’.
Read MoreCobaw Community Health Services Limited v Christian Youth Camps Limited & Anor [2010] VCAT 1613 (8 October 2010)
VCAT has recently ruled that a Christian adventure resort has discriminated against a gay youth suicide prevention group by denying them access to its camping facilities because of their sexual orientation.
Read MoreCatholic Care (Diocese of Leeds) v Charity Commission for England and Wales & Anor [2010] EWHC 520 (Ch) (17 March 2010)
The England and Wales High Court has held that it is for the Charity Commission to determine whether discrimination against same-sex couples by a charitable organisation is justified.
Read MoreWhatcott v Saskatchewan (Human Rights Tribunal), 2010 SKCA 26 (25 February 2010)
The Court of Appeal for Saskatchewan has unanimously held that four flyers, which contained anti-gay sentiments, were not so extreme as to violate that prohibition on hate speech under The Saskatchewan Human Rights Code ('Code'). In arriving at this decision, the court emphasised the importance of protecting the right to freedom of expression, which is protected by the Code, the Canadian Charter of Rights (Charter) and the common law.
Read MoreVictorian Electoral Commission (Anti-Discrimination Exemption) [2009] VCAT 2191 (30 September 2009)
VCAT has granted the Victorian Electoral Commission ('VEC') an exemption from the Equal Opportunity Act 1995 (Vic) ('EO Act') to enable the VEC to take into account certain political activities of a person when considering whether to offer the person employment, contract work or an appointment on the audit committee of the VEC. In arriving at her decision, Vice President Harbison referred to the principles enunciated by President Bell in Lifestyle Communities Ltd (No 3) [2009] VCAT 1869.
Read MoreBaczkowski & Ors v Poland [2007] ECHR 1543/06 (3 May 2007)
The European Court of Human Rights has found that Poland violated its obligations to protect the right to freedom of assembly as a result of a failure to facilitate and accommodate a protest regarding discrimination against minority groups.
Read More