The US Supreme Court has held that different citizenship rules for children of unmarried mothers and fathers unlawfully infringes the Fifth Amendment’s guarantee of equal gender protection. However, the Court determined that the less favourable test should be followed, resulting in the respondent's deportation from the United States.
Read MoreThe Victorian Supreme Court has found for the third time that the Victorian government acted unlawfully with children's human rights and best interests in breach of the Charter of Human Rights and Responsibilities Act 2006 by establishing the Grevillea unit at Barwon prison as a youth justice centre and remand centre, transferring children to the Grevillea unit and using OC spray and extendable batons on children.
Read MoreThe Canadian Federal Court has ruled that the current procedure for revoking citizenship is unconstitutional as it deprives people of a fair hearing – a right protected by the Canadian Bill of Rights.
Read MoreA majority of the High Court has held that the act of infecting another individual with a sexually transmitted infection falls within the meaning of 'maliciously inflicting grievous bodily harm' under s 35(1)(b) of the Crimes Act 1900 (NSW). The decision also clarifies that it is sufficient that the Crown establish that an accused foresaw the possibility, and not the probability, that an act of sexual intercourse could result in the contraction of a grievous bodily disease for an accused to be convicted of the offence.
Read MoreThe European Court of Justice has clarified European law surrounding workplace prohibitions on wearing religious symbols in customer facing roles. The Court held that workplace bans on religious dress based on legitimate and objective aims can lawfully prohibit employees wearing visible signs of their religious, political or philosophical beliefs. However, workplace policies based on subjective criteria or which disadvantage people with particular religious beliefs would constitute indirect discrimination.
Read MoreThe Supreme Court of Victoria has delivered an important decision on the obligations of courts to ensure fair hearing and equality rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic) (Charter) in the context of unrepresented litigants, and in particular where a litigant has a cognitive disability.
Read MoreThe High Court of South Africa has found that the decision by the national executive to sign and deliver a notice of withdrawal from the Rome Statute without prior parliamentary approval was unconstitutional and invalid.
Read MoreIn a unanimous 3-0 decision, the United States Court of Appeal maintained the freeze on US President Donald Trump’s controversial immigration order suspending entry of people from 7 countries for 90 days, indefinitely suspending the entry of Syrian refugees and suspending the United States Refugee Admissions Program for 120 days.
Read MoreThe Victorian Supreme Court has found that the cancellation by Patty Malones Bar of an African music themed event on the basis of the race of prospective patrons constituted direct discrimination in breach of the Equal Opportunity Act. The Court awarded compensation to Antony Obudho for his economic and non-economic losses as the organiser of the event, despite the fact that Patty Malones had not had any direct dealings with Mr Obudho and did not have any information about his race or ethnicity.
Read MoreThe United Kingdom Supreme Court found that the Northern Ireland police service wrongly determined that they did not have the power to prevent disruptive and violent protests through a residential area. The Court held that freedom of assembly in article 11 of the ECHR is not absolute and police have a duty to protect others from any violence.
Read MoreThe European Court of Human Rights has found that the forced removal of an infant from his surrogate parents constituted an interference with the surrogate parents' right to respect for their private life under Article 8 of the European Convention of Human Rights, but that the actions taken by the Italian government were justified under the margin of appreciation under domestic laws prohibiting commercial surrogacy.
Read MoreThe UK High Court has ruled that ministers of the United Kingdom cannot employ prerogative powers to withdraw from the EU without an Act of Parliament authorising them to do so, as only an Act of Parliament can significantly alter the UK's constitutional arrangements. As EU law was a significant source of UK domestic law, the majority ruled that this legal source could not be removed by ministerial decision alone.
Read MoreFour years after its decision in Vinter, the Grand Chamber of the European Court of Human Rights has revisited the UK’s life-sentencing regime, reversing its earlier position and holding that the regime does not contravene the European Convention on Human Rights.
Read MoreIn a complex case, the Family Court in England has ordered that a transgender mother is not permitted to have direct contact with her five practising, ultra-orthodox Jewish children, on the basis that the benefits to the children of resuming contact would be outweighed by the harmful community reaction to the children and their family. However, the Court ordered that indirect contact four times a year be allowed.
Read MoreThe UK Supreme Court has unanimously held that the “Crown act of state” doctrine acts as a bar to certain claims against the Crown in the field of international affairs. In this case, the detention of a Pakistani national by British forces and their transfer to US custody (under which he was detained for 10 years) were “Crown acts of state” for which the UK Government can not be liable under the UK's tort laws.
Read MoreThe Victorian Court of Appeal upheld a Supreme Court decision that the Victorian Government's decision to establish a youth justice centre inside the Barwon maximum security adult prison was unlawful. The Court held that the Minister and Governor in Council failed to have regard to children’s rights and Victoria’s legal obligations but overturned a finding that the Minister had acted for an improper purpose in establishing the facility.
Read MoreThe Supreme Court of Victoria has found that orders made in November 2016 establishing the Grevillea unit at Barwon Prison as a youth justice facility were invalid and of no effect because of a failure by the defendants to take into account certain relevant entitlements and duties under the Children, Youth and Families Act 2005 (Vic). Garde J held that the use of the facility as ‘emergency accommodation’ was an improper or extraneous purpose to that required for the exercise of relevant powers under the CYF Act.
Garde J also held that the defendants failed to give proper consideration to provisions of the Charter of Human Rights and Responsibilities Act 2006 (Vic).
Read MoreThe 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:
The Federal Court has ruled that the State of Queensland engaged in unlawful discrimination under section 9(1) of the Racial Discrimination Act as a result of Queensland Police Service officers' actions on Palm Island between 19 and 28 November 2004, following the death in custody of Aboriginal man Mulrunji after his arrest and confrontation with Senior Sergeant Christopher Hurley.
Representatives of the Aboriginal community on Palm Island brought the action and Justice Mortimer ruled that the following actions were racially discriminatory:
Justice Mortimer granted declaratory relief, ordered compensation to be paid and has requested further submissions on the potential for a public apology.
Read MoreMr 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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The Court of Appeal in Northern Ireland has upheld that a Christian-run bakery was guilty of discrimination after they refused to make a cake containing the message “Support Gay Marriage”.
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]).
Read MoreIn 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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The High Court of Australia has dismissed an appeal from the Queensland Court of Appeal, confirming that a deaf woman was not unlawfully discriminated against when she was excluded from jury service.
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.
Read MoreThe 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.
Read MoreThe Federal Court of Australia has upheld a challenge to a decision by the Launceston City Council to refuse to grant a permit to preach Christian ideology in a public pedestrian mall on administrative law grounds.
Read MoreRay 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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This appeal was brought in the Rovereto Court (Court) by a teacher employed by the Institute of the Daughters of the Sacred Heart of Jesus (Institute) in Rovereto, located in Northern Italy.
Case of The Christian Institute and others v The Lord Advocate (Scotland) [2016] UKSC 51 (28 July 2016)
In a recent judgment, the United Kingdom Supreme Court unanimously blocked the introduction of the Scottish Government's Named Persons scheme (Scheme), due to its incompatibility with article 8 (right to private and family life) of the European Convention on Human Rights (ECHR). The Scheme was part of a package of child welfare measures introduced under the Children and Young People (Scotland) Act 2014 (the Act).
Read MoreOn 10 February 2014 the Department of Immigration and Border Protection inadvertently published on its website the identifying details of 9,258 applicants for protection visas held in immigration detention (“Data Breach”). The Data Breach carried the risk that authorities in the named detainees’ countries of origin would become aware that they had sought protection in Australia, creating a new and independent risk of harm if those detainees were returned to those countries. The Department conducted International Treaties Obligations Assessments (“ITOAs”) to determine if the Data Breach affected Australia’s non-refoulement obligations with respect to the detainees.
Read MoreThe Colombian Constitutional Court recently invalidated ‘strategic mining areas’ (SMA) which would have made mining concessions over almost 20% of the country available by tender, because they violated the rights of Indigenous and Afrocolombian peoples to prior consultation.
Read MoreThe applicants, Mr Shahanov and Mr Palfreeman, are currently serving extended prison sentences in Bulgaria's Plovdiv and Sofia Prisons. Both applicants commenced proceedings against the Republic of Bulgaria in the European Court of Human Rights (ECHR) in 2012. The ECHR subsequently joined the proceedings due to their similarity.
Read MoreThe European Court of Human Rights (the Court) has delivered a judgment protecting the rights of children born as a result of international commercial surrogacy to have their relationships with their biological parents legally recognised. The Court unanimously found that refusal by French authorities to transcribe the birth certificates of children born under surrogacy agreements in India violated the children's right to respect for private life under Article 8 of the European Convention on Human Rights (the Convention). The judgment resolves past uncertainty as to whether the Court's earlier decisions on surrogacy would extend to same-sex families.
Read MoreA US federal court has handed civil rights groups a crucial win ahead of this year's presidential election after ruling that Texas’ restrictive voting legislation has a discriminatory effect on Hispanic and African American voters. The 2011 law requires voters to produce one of a limited number of forms of identification and is the nation’s strictest voter photo ID law, leaving more than half a million eligible voters unable to fully participate in the democratic process. The recent ruling will require that measures are taken to allow disenfranchised voters to participate in this November’s US presidential election.
Read MoreIn the recent decision of R v Lord Chancellor [2016] UKSC 39, the UK Supreme Court has rejected an attempt by the Lord Chancellor to limit the availability of legal aid on the basis of citizenship and continuous residence in the UK, concluding this was outside the Lord Chancellor's power.
Read MoreThe European Court of Human Rights (ECHR) has held that immigration detention of an LGBTI Iranian person seeking asylum in Hungary contravened article 5(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention).
Read MoreThe Court of Appeal for Ontario has upheld a lower court’s decision to dismiss an application for judicial review of the Law Society of Upper Canada’s (LSUC) decision to refuse accreditation to an evangelical Christian law school. The Court reviewed the LSUC’s decision by reference to the standard of reasonableness and held that, in making its decision, the LSUC reasonably balanced the appellants’ rights to religious freedom against its statutory objective of protecting the ‘public interest’.
Read MoreThe Court of Appeal for Ontario has upheld a lower court's decision to dismiss an application for judicial review of the Law Society of Upper Canada's (LSUC) decision to refuse accreditation to an evangelical Christian law school. The Court reviewed the LSUC's decision by reference to the standard of reasonableness and held that, in making its decision, the LSUC reasonably balanced the appellants' rights to religious freedom against its statutory objective of protecting the 'public interest'.
Read MoreThe United States Supreme Court made a four-four split decision in a nine word judgement over the legality of President Obama’s deferred action immigration program. This upholds the United States Court of Appeals for the Fifth Circuit's decision to maintain a nationwide injunction preventing implementation of the Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA) and the expansion of the 2012 Deferred Action for Childhood Arrivals program (DACA).
Read MoreThe Grand Chamber of the European Court of Human Rights has delivered another decision in the long line of cases dealing with the relationship between sanctions by the United Nations Security Council (UN Security Council), and international human rights. By 15 votes to 2, the Grand Chamber found that Swiss courts did not provide meaningful judicial review of the applicant’s sanctions listings by the Sanctions Committee of the Security Council (Sanctions Committee). It therefore found a violation of Article 6(1) of the European Convention of Human Rights (ECHR). In doing so the Grand Chamber upheld the presumption, highlighted in previous cases that Security Council sanctions are to be interpreted on the basis that they are compatible with international human rights.
Read MoreThe US Supreme Court has held that drugs and drug paraphernalia found after an unconstitutional stop were admissible because of an outstanding arrest warrant against the accused.
Read MoreIn March 2016, the Human Rights Committee (Committee), which monitors the implementation of the International Covenant on Civil and Political Rights (ICCPR), determined that Irish laws that forced a woman whose foetus had congenital heart defects (and a low chance of survival) to procure an abortion overseas contravened the ICCPR. The Committee determined that Articles 7 (privacy), 17 (cruel, inhuman and degrading treatment) and 26 (equality before the law) of the ICCPR were violated and the Irish government should pay compensation to the claimant and provide her with needed psychological treatment. The Committee also recommended that Ireland amend its laws on voluntary termination, and if necessary its constitution, to ensure compliance with the ICCPR and prevent similar violations occurring.
Read MoreA married celebrity had a threesome. His partner wasn’t one of the three. The affair was published widely on the internet outside the UK. A UK newspaper wanted to publish the story too. Demonstrating that it takes the right to privacy seriously in the age of the internet, the Supreme Court in May 2016 upheld an injunction preventing the publication of the story in the UK.
The decision confirms that the right to privacy protects not just secrecy, but intrusion into private life. Therefore the fact that the information was already publicly accessible was not fatal – the injunction would prevent additional intrusion and harm to the applicant and his family caused by print publication.
Read MoreThe United Kingdom remains the only EU Member State which does not impose a statutory time limit on immigration detention prior to deportation. A challenge to that position was recently heard before the European Court of Human Rights. While the Court acknowledged that such time limits may be preferable, it concluded that the absence of a fixed time limit does not, in itself, render the UK’s immigration detention system incompatible with Article 5(1)(f) of the Convention for the Protection of Human Rights and Fundamental Freedoms (Convention).
Read MoreThe Commonwealth Government has a duty of care to facilitate a safe and lawful abortion for a refugee who was sexually assaulted while on Nauru awaiting resettlement. The court’s orders included an injunction to restrain the Minister from procuring an abortion for the applicant in Papua New Guinea (‘PNG’), but did not require the Minister to bring the applicant to Australia.
Read MoreOn 20 April 2016, the Central Queensland Hospital and Health Service (“CQHHS”) applied to the Supreme Court of Queensland seeking orders authorising the termination of 12-year-old “Q’s” pregnancy. Exercising the Court’s parens patriae jurisdiction, McMeekin J held that that the termination of Q’s pregnancy was necessary to avoid danger to Q’s mental and physical health, and was therefore lawful.
Read MoreThe High Court has unanimously allowed an appeal against a decision of the Queensland Court of Appeal, in relation to the criminal offence of intentionally transmitting HIV to another person.
The decision provides further guidance as to when evidence of a person’s awareness of risk, and foresight of the consequences of his actions, will suffice to prove criminal intent.
Read MoreAfter a young Brazilian man was mistakenly shot and killed by UK police in 2005, the Grand Chamber of the European Court of Human Rights (Court) has found that the manner in which the investigation into the shooting was conducted did not constitute a breach of the procedural duty contained in the European Convention for the Protection of Human Rights and Fundamental Freedoms (Convention). In particular, the Court concluded that the decision not to prosecute any individual officer was not due to any failing in the investigation or any unlawful acts. Rather, it was due to the fact that the prosecutor had considered all of the facts and concluded that there was insufficient evidence against any individual officer to prosecute.
Read MoreThe Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter) requires public authorities to give proper consideration to, and act compatibly with, the human rights set out in the Charter. The Victorian Civil and Administrative Tribunal (VCAT) recently held that a registered housing association was subject to the Charter when providing social housing.
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