European Court of Justice finds EU law does not allow indiscriminate collection of electronic communications data and requires controls on access to retained data

Tele2 Sverige AB v Post-och telestyrelsen; Secretary of State for the Home Department v Watson and others (C-203/15 and C-698/15), EU:C:2016:970

The Grand Chamber of the European Court of Justice (ECJ) found that EU law precludes national laws that allow for the indiscriminate retention of all electronic communications data of all subscribers and users. It also found that national laws must put parameters around the circumstances in which authorities can access the retained data, and in particular access should be:

  • restricted solely to access for the purpose of fighting serious crime;
  • subject to prior review by a court or an independent administrative authority; and
  • subject to a requirement that the data so accessed should be retained within the European Union.
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Human Rights Committee addresses Australia’s Criminal Justice Stay Certificate Regime and Mandatory Minimum Sentencing

Nasir v Australia CCPR/C/116/D/2229/2012

Mr Nasir was an Indonesian cook on a boat that brought asylum seekers to Australia. He was convicted of aggravated people smuggling under the Migration Act 1958 (Cth). Mr Nasir was detained without charge for 146 days on Christmas Island and in the Northern Territory, pursuant to an unreviewable Criminal Justice Stay Certificate. He did not appear before a judge for 177 days. At trial, Mr Nasir received the mandatory minimum sentence of five years with a three-year non-parole period pursuant to section 236B of the Migration Act, despite his undisputed minor role as a cook and non-organiser of the voyage. 

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Victorian Supreme Court grants indefinite litigation restraint order against vexatious litigant Julian Knight

Attorney-General for the State of Victoria v Knight [2016] VSC 488 (30 August 2016)

An order restraining Julian Knight from commencing legal proceedings without leave of the Court has been extended indefinitely under the Vexatious Proceedings Act 2014 (Vic) (“Act”). Justice J Forrest described Mr Knight as a “persistent and undeterred litigant who will continue to litigate any cause regardless of its merits” (at paragraph [37]).

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High Court of Australia declines to extend limitation period in claim concerning vicarious liability of educational and care institution in sexual abuse case

Prince Alfred College Incorporated v ADC [2016] HCA 37 (5 October 2016)

In the recent decision of Prince Alfred College Incorporated v ADC [2016] HCA 37 (5 October 2016), the High Court of Australia acknowledged the that the law in relation to the vicarious liability of educational and care institutions when an employee commits sexual offences against children, is unclear. However, because the Court ultimately declined to extend the statutory limitation period relevant to the claim by a former boarding student who had resided at Prince Alfred College in 1962 and was the victim of sexual abuse, the issue of vicarious liability was not determined.   

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US federal appeals court rules that a prohibition on gun ownership for people with prior mental health issues may be unconstitutional

Tyler v Hillsdale County Sheriff’s Department (6th Cir, No 13-1876, 15 September 2016)

A divided US Court of Appeals for the Sixth Circuit ruled that a longstanding federal law banning people involuntarily committed to mental health institutions from owning a gun could violate the Second Amendment of the US Constitution.

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ECHR finds UK in violation of the Convention for the Protection of Human Rights and Fundamental Freedoms for depriving an asylum seeker of their liberty unlawfully

Case of V.M. v United Kingdom (Application No. 49734/12) [2016] ECHR (1 September 2016)

The European Court of Human Rights (“the Court”) finds in favour of a Nigerian asylum seeker, who was detained pending deportation, against the United Kingdom and Northern Ireland for violations of article 5 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which enshrines the right to liberty and security of the person.

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Judicial misunderstanding of bisexuality leads to dangerous ruling on protection claim for Jamaican man seeking asylum

Ray Fuller v Loretta E Lynch, Attorney General of the United States, 833 F.3d 866 (7th Cir, 2016)

The United States Court of Appeals for the Seventh Circuit has refused to review the case of a person seeking asylum, despite the man's fear of persecution should he be returned to Jamaica. Ray Fuller testified that he identified as bisexual and there was evidence he was at risk of harassment and torture.

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