The 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 MoreR v Vice Media Canada Inc 2018 SCC 53
The 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 MoreAB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) [2018] HCA 58
The 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 MorePBU & NJE v Mental Health Tribunal [2018] VSC 564 (1 November 2018)
The 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 MoreLee v Ashers Baking Company Ltd [2018] UKSC 49
In 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 MoreCemino v Cannan and Ors [2018] VSC 535
The 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 MoreBig Brother Watch and Others v The United Kingdom (Applications nos. 58170/13, 62322/14 and 24960/15) (13 September 2018)
The 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 MoreHoneysett v The Queen [2018] VSCA 214
The 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 MoreSir Cliff Richard OBE V The British Broadcasting Corporation; The Chief Constable Of South Yorkshire Police [2018] EWHC 1837 (Ch)
The 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 MoreCase of Mariya Alekhina and Others v Russia (ECHR, Third Section, Application no. 38004/12, 17 July 2018)
The 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 MoreThe Queen v Chaarani (Ruling 1) [2018] VSC 387 (16 July 2018)
Justice 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 MoreQT v Director of Immigration [2018] HKCFA 28 (4 July 2018)
A 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 MoreTrump v. Hawaii, 585 U.S. ___ (2018) (26 June 2018)
In a 5-4 decision, the Supreme Court has upheld the third iteration of President Trump’s ‘Travel Ban’.
Read MoreCarpenter v United States, S. Ct. (22 June 2018)
The 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 MoreOwners 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.
Read MoreMinogue v Victoria [2018] HCA 27 (20 June 2018)
In 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 MoreCentrum för Rättvisa v Sweden (Application no 35252/08) (19 June 2018)
In 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 MoreLaw Society of British Columbia v Trinity Western University 2018 SCC 32 (15 June 2018); and Trinity Western University v Law Society of Upper Canada 2018 SCC 33 (15 June 2018)
In 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 MorePimlico Plumbers Ltd & Anor v Smith [2018] UKSC 29 (13 June 2018)
The 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 MoreAbu Zubaydah v Lithuania (European Court of Human Rights, Application No. 4654/11, 31 May 2018)
Al Nashiri v Romania (European Court of Human Rights, Application No. 33234/12, 31 May 2018)
The 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 MoreCentrale des syndicats du Quebec v. Quebec (Attorney General), 2018 SCC 18
Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la sante et des services sociaux, 2018 SCC 17
In 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 MoreČakarević v Croatia (European Court of Human Rights, First Section, Application no. 48921/13, 26 April 2018)
Ms 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 MoreJesner v Arab Bank Plc No. 16-499, 584 U.S. _(2018)
By 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 MoreRe: Matthew [2018] FamCA 161 (16 March 2018)
The 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 MoreNaït-Liman v Switzerland (European Court of Human Rights, Grand Chamber, Application no. 51357/07, 15 March 2018)
The 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 MoreNix v Germany (European Court of Human Rights, Chamber, Application no. 35285/16, 13 March 2018)
The 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 MoreM v Minister for Justice and Equality [2018] IESC 14
The 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.
Read MoreFRX17 as litigation representative for FRM17 v Minister for Immigration and Border Protection [2018] FCA 63 (9 February 2018)
AYX18 v Minister for Home Affairs [2018] FCA 283 (6 March 2018)
In two recent interlocutory matters, the Federal Court has ordered the Australian Government to remove refugee children from Nauru to Australia in order to receive appropriate mental health treatment.
Read MoreAli & Aslam v Channel 5 Broadcast Limited [2018] EWHC 298 (CH)
The 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 MoreClass v United States, 583 U.S. ___ (2018)
The 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 MoreCommissioner of Police of the Metropolis v DSD and Another [2018] UKSC 11 (21 February 2018)
The United Kingdom Supreme Court has awarded damages to two victims of crime who brought proceedings against the Metropolitan Police Service for substantial failures to conduct an effective investigation into a number of sexual assaults. The decision aligns with a consistent line of authorities from the European Court of Human Rights regarding the nature and scope of the State's duty under article 3 of the European Convention for the Protection of Human Rights.
Read MoreLewis v Australian Capital Territory [2018] ACTSC 19 (16 February 2018)
The Supreme Court of the Australian Capital Territory held that section 18(7) of the Human Rights Act 2004 (ACT) does not create a new right or new remedy for compensation for unlawful arrest or detention. The tort of false imprisonment provides adequate protection for that right.
Read MoreButkevich v Russia (European Court of Human Rights, Chamber, Application No. 5865/07, 13 February 2018)
The 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 MoreWall v Fairfax New Zealand Limited [2018] NZHC 104
The 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 MoreF v Bevándorlási és Állampolgársági Hivatal (Court of Justice of the European Union, C473/16, 28 January 2018)
The Court of Justice of the European Union has held that subjecting an asylum seeker to psychological tests, designed to provide an indication of their sexual orientation, breaches their right to respect for private and family life under Article 7 of the EU Charter of Fundamental Rights.
Read MoreMlungwana v The State [2018] ZAWHC 3
The 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 MoreGRA Stiftung gegen Rassismus und Antisemitismus v. Switzerland (application no. 18597/13) [2018] ECHR
The 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 MoreCatalan v Romania (Application No. 13003/04) [2018] ECHR (9 January 2018)
The 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.
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