In 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 MoreOn 29 March 2021, the Supreme Court of Victoria granted bail to a man charged with drug offences on the basis that he would likely be held in custody for three years before he was tried, and because there was immediate availability in a residential rehabilitation centre. The Court referred to the man as a potential “victim” of very lengthy delays in court processes due to COVID-19. The Court emphasised the importance of rehabilitation in addressing the root causes of offending and thereby reducing the likelihood of reoffending and, in turn, keeping the community safer. Ultimately, the Court found that the length of pre-trial custody coupled with the availability of appropriate rehabilitation options amounted to 'exceptional circumstances' sufficient to justify bail.
Read MoreOn 8 April 2021, the Grand Chamber of the European Court of Human Rights ruled that the Czech Republic's regime for the mandatory vaccination of children did not violate the right to private life under Article 8 of the European Convention on Human Rights.
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 MoreOn 19 March 2021, the Federal Court of Australia held that the operator of the Montara oil field breached its duty of care towards thousands of seaweed farmers in Indonesia by causing, or materially contributing to, the death and loss of seaweed crops via a large oil spill in 2009.
Read MoreThe Victorian Supreme Court overturned a decision to refuse bail to a 15 year old child. In deciding to grant a child bail, Justice Maxwell and Justice Kaye were guided by the “fundamental principle” of the youth legal system to “keep children out of custody wherever possible.” Their Honours also raised the “unacceptable” rate of over-representation of Aboriginal and Torres Strait Islander people in the criminal legal system and considered that the “courts have a duty, in cases such as this, to be conscious of the need to avoid compounding those incarceration rates.”
Read MoreThe 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.
Read MoreXAD, a child classified as an “unauthorised maritime arrival” for the purposes of the Migration Act 1958 (Cth) (Act), sought (by her litigation guardian XAE) an order to compel either the Minister for Immigration[1] or the Minister for Home Affairs to consider her application for a protection visa.
Read MoreThe UK Supreme Court has allowed an appeal from the Court of Appeal on the basis that two Nigerian communities have an arguable case that a UK domiciled parent company owes them a duty of care in respect of alleged systemic health, safety and environmental failings of its Nigerian subsidiary company.
Read MoreDivision 105A of the Criminal Code 1995 (Cth) empowers a court to make an order to keep a terrorist offender imprisoned after the expiry of their sentence where they pose an unacceptable risk of committing certain offences if released into the community. By majority (5:2), the High Court held that this power was within the judicial power of the Commonwealth.
Read MoreOn 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.
Read MoreA 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.
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 MoreThe Court of Appeal of the Supreme Court of Victoria considered the application of the Charter of Human Rights and Responsibilities Act 2006 (Vic) to jury deliberations and damages, in an appeal relating to claims of false imprisonment and battery against Victoria Police.
Read MoreThe High Court of Australia found that section 494AB(1) of the Migration Act 1958 (Cth) (Act), a provision which seeks to prevent legal proceedings being taken against the Commonwealth in relation to asylum seekers under the regional processing regime, does not limit the jurisdiction of any court.
Read MoreOn 2 November 2020, the Supreme Court of Victoria dismissed the first substantive legal challenge to the validity of greater Melbourne’s lockdown laws. Justice Ginnane held that the curfew imposed between 9pm and 5am in greater Melbourne from 13 to 28 September 2020 (Curfew) was a lawful and proportionate measure in response to mounting cases of COVID-19 in Victoria.
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 MoreOn 25 September 2020, the Victorian County Court held that use of body-worn camera footage (‘BWC footage’) obtained from police, ambulance, prison officers, and other prescribed persons under the Surveillance Devices Act 1999 (Vic) (‘the Act’) cannot be used by courts in civil proceedings.
Read MoreOn 25 August 2020, the Victorian Court of Appeal held that a person diagnosed with a personality disorder should be treated the same as any other person who seeks to rely on an impairment of mental functioning as a mitigating factor in their sentencing.
Impairment of mental functioning can be considered as a mitigating factor in a person’s sentencing in accordance with the principles from R v Verdins (2007) 16 VR 269.
Before this case, however, the principles set out in R v Verdins were not applicable to people with personality disorders because of the case of DPP v O’Neill (2015) 47 VR 395, which had previously excluded personality disorders from consideration by the courts.
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 MoreIn August, the Federal Court ordered the Minister for Home Affairs to urgently remove an elderly man with multiple health conditions from a Melbourne immigration detention centre to guard against the serious risk of COVID-19 infection.
The man was 68 years old and suffered from health issues including type-2 diabetes and high cholesterol, which meant he was at high risk of severe disease or death if he were to contract COVID-19.
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 3 June 2020, the majority of the High Court found that prison officers’ use of tear gas on four Aboriginal children in Don Dale Youth Detention Centre was unlawful. The High Court unanimously held that each of the four young people were entitled to damages for the harm they suffered.
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 MoreA case was brought in the Supreme Court of Victoria seeking orders to temporarily release a 52-year-old man from Port Phillip Prison in light of the serious risk of harm or death that COVID-19 would pose to him if a case of the virus arose in prison.
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 MoreOn 5 December 2017, during her train journey, Ms Day was approached by a V/Line train conductor. He called the police, Ms Day was ejected from the train and arrested for being drunk in a public place. Ms Day was taken to Castlemaine police station and detained in a police cell. Despite the requirement that she be physically checked every 30 minutes, this did not happen. The CCTV footage shows that at around 5:00pm Ms Day fell and hit her head on a concrete wall of the police cell.
Read MoreIn this case, Justice See Kee Oon of the Supreme Court of Singapore (the Court) declined to declare section 377A of the Penal Code, which criminalises acts of "gross indecency" – sex between consenting adult men – unconstitutional. Despite the law's origins under British colonial administration, the Court ultimately found that section 377A did not constitute an unlawful infringement on the rights of gay and bisexual men in modern day Singapore.
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 Supreme Court of Victoria has dismissed an appeal against a conviction for communicating, in a safe access zone, about abortions in a manner ‘reasonably likely to cause distress or anxiety’.
Read MoreThe 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.
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