UK High Court rejects challenge to prohibition on assisted dying
R (on the application of Noel Conway) v The Secretary of State for Justice [2017] EWHC 2447 (Admin) (5 October 2017)
The UK High Court has rejected the latest legal challenge to the prohibition on assisted dying, holding that the prohibition represents a necessary and proportionate interference with the applicant’s right to private life. The Court placed reliance upon the fact that Parliament had repeatedly decided to leave the prohibition in place, providing a timely reminder of the crucial role of Parliament in promoting a person’s right to die with dignity in the context of the assisted dying laws currently being debated in Victorian Parliament.
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High Court of Australia finds marriage law postal survey is lawfully funded
Wilkie & Ors v The Commonwealth & Ors; Australian Marriage Equality Ltd & Anor v Minister for Finance & Anor [2017] HCA 40 (M105/M106 of 2017)
In M105/M106, the High Court dismissed two legal challenges to the Government's plan to carry out a voluntary postal survey on whether the law should be changed to allow same-sex couples to marry. The plaintiffs challenged the survey on the basis that it was not lawfully funded.
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Employee denied access to reasons for security clearance revocation was not deprived of the right to a fair trial, European Court finds
Regner v the Czech Republic [2017] ECHR (Application no. 35289/11) (19 September 2017)
The 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.
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High Court of Australia affirms narrower interpretation of “intention” to cause harm under complementary protection regime
SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34
The High Court has held that in order for an applicant to be covered by the Migration Act’s complementary protection regime, the element of “intention” requires a person’s actual, subjective intention to bring about pain, suffering or extreme humiliation.
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Free speech: US Supreme Court strikes down law that prohibited “disparaging” trademarks
Joseph Matal, Interim Director, United States Patent and Trademark Office, Petitioner v Simon Shia Tam 582 U.S. ____ (2017)
The 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.
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European Court of Human Rights rules that irreducible life sentences violate human dignity
Vinter and others v United Kingdom (Application nos. 66069/09, 130/10 and 3896/10) [2016] III ECHR 317 (9 July 2013)
In 2013, the European Court of Human Rights held that it is a violation of human dignity to deny life prisoners any prospect of release or review of their sentence.
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UN finds that Australia breaches right to equality in same-sex divorce
United Nations Human Rights Committee – Views adopted by the Committee under article 5(4) of the Optional Protocol (CCPR/C/119/D/2216/2012)
The UN Human Rights Committee has held that Australia violated the International Covenant on Civil and Political Rights by failing to provide access to divorce proceedings for same-sex couples married overseas. The Committee reasoned that the differential treatment of same-sex couples as compared with overseas polygamous and adolescent marriages (between persons aged from 16 to 18 years) constituted discrimination under article 26 of the Covenant.
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WA Court of Appeal quashes manslaughter conviction in spite of guilty plea
Gibson v State of WA [2017] WASCA 141 (28 July 2017)
The Western Australian Court of Appeal has set aside an Aboriginal man's guilty plea after finding that the absence of a qualified interpreter that spoke his language was a miscarriage of justice.
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UK Supreme Court declares court fees for claims before employment tribunals unlawful
R v Lord Chancellor [2017] UKSC 51 (26 July 2017)
The United Kingdom Supreme Court has held that fees imposed by the Lord Chancellor foremployment tribunal proceedings were unlawful because of their effects on access to justice, particularly for people experiencing disadvantage.
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The Charlie Gard case: UK High Court rules against experimental medical treatment for a terminally ill child
Great Ormond Street Hospital v Yates [2017] EWHC 1909 (Fam) (24 July 2017)
In a high-profile dispute between the parents of a terminally ill child and doctors at the Great Ormond Street Hospital over the child’s course of treatment, the UK High Court found that the best interests of the child require that he not be given experimental medical treatment and instead be taken off life support.
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European Court of Human Rights finds hate speech not protected by freedom of expression
Belkacem v Belgium (2017) ECHR 253
The European Court of Human Rights has found that a conviction for the incitement of hatred, violence and discrimination for under Belgian law did not breach a far right Muslim activist's right to freedom of expression, as protected by Article 10 of the European Convention of Human Rights.
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UK High Court finds that arms trade to Saudi Arabia can continue
R (on the application of Campaign Against Arms Trade) v The Secretary of State for International Trade and Intervenors [2017] EWHC 1726 (QB)
The English & Wales High Court has found that the UK's Secretary of State decision not to suspend a licence to export arms to the Kingdom of Saudi Arabia was valid. The Campaign Against Arms Trade and a number of intervenors unsuccessfully argued that the export licence should be suspended on the basis that there was a clear risk that the arms could be used in the commission of serious violations of international humanitarian law.
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Victorian Court of Appeal clarifies law and frees elderly man with an intellectual impairment from indefinite prison order
Richards (a Pseudonym) v The Queen (No 2) [2017] VSCA 174
The Victorian Court of Appeal has allowed an appeal against an indefinite custodial supervision order for an elderly man with mental and physical health issues and an intellectual impairment who was unfit to be tried for historical offences.
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US Supreme Court temporarily reinstates President Trump's travel ban for immigrants with no bona fide connection to the United States
Trump v International Refugee Assistance Project, 137 S.Ct 2080 (26 June 2017)
On 26 June 2017 the Supreme Court of the United States temporarily reinstated President Trump's travel ban, but a majority of the Court held that the temporary reinstatement will not apply to people who can show they have a credible claim of a bona fide relationship with a person or organisation already in the United States.
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UK Supreme Court challenges ‘deport now, appeal later’ immigration policy
R (on the application of Kiarie) (Appellant) v Secretary of State for the Home Department (Respondent); R (on the application of Byndloss) (Appellant) v Secretary of State for the Home Department (Respondent) [2017] UKSC 42
The UK Supreme Court has unanimously held that deportation certificates issued by the United Kingdom’s Secretary of State for the Home Department were unlawful. The recipients of the deportation orders in this case were entitled to appeal against the Home Secretary’s immigration decisions by a judicial review procedure to the First-tier Tribunal (Immigration and Asylum Chamber). However, the effect of the deportation orders was that the appeals could only be brought after the appellants’ removal from the UK. This is known as the ‘deport first, appeal later’ policy. The Court found that difficulties with evidence and legal representation meant these appeals were not sufficiently effective.
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UK Supreme Court finds that refusing free abortion services to women travelling from Northern Ireland to England is lawful
R (on the application of A and B) v Secretary of State for Health [2017] UKSC 41
A slim majority of the UK Supreme Court has upheld the UK Secretary of State for Health’s decision not to provide free of charge abortion services to women travelling from Northern Ireland to England. The court found that the Secretary was entitled to consider the Northern Ireland Assembly’s decision not to provide abortions and the devolved government model for providing health services. Further, that treating UK citizens who usually reside in Northern Ireland differently was justified in the circumstances.
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US Supreme Court confirms equal gender protection in immigration law but plaintiff deported as less favourable test followed
Sessions v Morales-Santana, 582 U.S Supreme Court (12 June 2017)
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.
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Victorian Supreme Court finds establishment of youth justice centre at Barwon adult prison contrary to human rights and unlawful
Certain Children by their litigation guardian Sister Marie Brigid Arthur v Minister for Families and Children & Ors [2017] VSC 251 (11 May 2017)
The 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.
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Canadian Federal Court says citizenship revocation offends Bill of Rights
Abdulla Ahmad Hassouna et al v The Minister of Citizenship and Immigration [2017] FC 473 (10 May 2017)
The 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.
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High Court of Australia finds that reckless infliction of STI can constitute malicious infliction of grievous bodily harm
Aubrey v The Queen [2017] HCA 18 (10 May 2017)
A 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.
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European Court of Justice clarifies scope of workplace bans on religious headscarves
Achbita v G4S Secure Solutions NV (European Court of Justice, C-157/15, 14 March 2017) and Bougnaoui v Micropole SA (European Court of Justice, C-188/15, 14 March 2017)
The 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.
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Victorian Supreme Court rules that courts have fair hearing and equality obligations to assist self-represented litigants
Matsoukatidou v Yarra Ranges Council [2017] VSC 61 (28 February 2017)
The 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.
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South African High Court blocks executive withdrawal from International Criminal Court
Democratic Alliance v Minister of International Relations and Cooperation and Others (Council for the Advancement of the South African Constitution Intervening) (83145/2016) [2017] ZAGPPHC 53 (22 February 2017)
The 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.
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US Court of Appeal halts President Trump’s controversial immigration order
State of Washington & State of Minnesota v Trump No. 2:17-cv-00141 (W.D.Wash. 2017) (9 February 2017)
In 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.
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Victorian Supreme Court awards damages for business-related losses "in consequence of" racial discrimination
Obudho v Patty Malones Bar Pty Ltd [2017] VSC 28 (9 February 2017)
The 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.
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UK Supreme Court finds police gave freedom to protestors at expense of public safety
DB v Chief Constable of Police Service of Northern Ireland [2017] UKSC 7 (1 February 2017)
The 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.
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ECHR says removal of infant from surrogate parents interfered with right to respect for private life but was justified under national laws
Paradiso and Campanelli v Italy (European Court of Human Rights, Grand Chamber, Application No 25358/12, 24 January 2017).
The 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.
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UK High Court rules against MPs withdrawing from EU without Act of Parliament
R (on the application of Miller and another) v Secretary of State for Exiting the European Union [2017] UKSC 5 (24 January 2017)
The 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.
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The European Court of Human Rights reverses its position on the UK’s life-sentencing regime.
Hutchinson v. the United Kingdom (application no. 57592/08) [2016] ECHR 021 (January 2017)
Four 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.
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English Court finds that direct contact between children and transgender mother not in their best interests considering exclusion from ultra-Orthodox Jewish community if allowed
J v B [2017] EWFC 4 (20 January 2017)
In 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.
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UK Supreme Court finds that the “Crown act of state” doctrine bars certain international claims
Rahmatullah (No 2) v Ministry of Defence [2017] UKSC 1 (17 January 2017)
The 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.
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Victorian Court of Appeal upholds finding that establishment of youth justice centre at Barwon adult prison unlawful
Minister for Families and Children v Certain Children by their Litigation Guardian Sister Marie Brigid Arthur [2016] VSCA 343 (29 December 2016)
The 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.
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Victorian Supreme Court finds decision to detain children in Barwon prison invalid due to failure to consider children's rights
Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children [2016] VSC 796 (21 December 2016)
The 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).
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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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Police response to Palm Island Aboriginal death in custody ruled racially discriminatory
Wotton v State of Queensland (No 5) [2016] FCA 1457 (5 December 2016)
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:
- QPS’ failure to independently and impartially investigate Mulrunji’s death by not treating Hurley as a suspect, or removing him from duty, and ignoring Aboriginal witnesses implicating Hurley;
- QPS’ failure to communicate timely and accurate information on the cause of Mulrunji's death and the investigation with the Palm Island Aboriginal community to defuse tensions;
- the excessive and disproportionate declaration of an emergency situation; and
- the unnecessary and disproportionate actions of officers of the Special Emergency Response Team for arrest, entries and searches on Palm Island as a show of force against the Aboriginal people.
Justice Mortimer granted declaratory relief, ordered compensation to be paid and has requested further submissions on the potential for a public apology.
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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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Court of Appeal in Northern Ireland has upheld that a Christian-run bakery was guilty of discrimination
Lee v Ashers Baking Co Ltd & Ors [2016] NICA 39
Summary
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”.
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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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High Court of Australia confirms Queensland law does not permit an Auslan interpreter to be present during jury deliberations
Lyons v State of Queensland [2016] HCA 38
Summary
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.
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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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Public preaching: Federal Court finds local council’s decision to refuse to issue a permit to preach in a public mall was beyond power
Corneloup v Launceston City Council [2016] FCA 974 (19 August 2016)
The 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.
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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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Italian court upholds freedom from discrimination on basis of sexual orientation
Roverto Court Order of 21 June 2016 (Sacred Heart Case)
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.
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Scotland's Named Persons Scheme: balancing children's welfare against privacy rights
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).
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High Court rules on Department of Immigration 'data breach' cases
Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29 (27 July 2016)
On 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.
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Colombian Constitutional Court invalidates mining policy for violating fundamental rights of Indigenous and Afrocolombian peoples
Sentence T-766 of 2015 (Constitutional Court of Columbia)
The 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.
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ECHR confirms that right to freedom of expression breached in taking action against prisoners for making complaints
Case of Shahanov and Palfreeman v Bulgaria (Application nos. 35365/12 and 69125/12) [2016] ECHR 686 (21 July 2016)
The 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.
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ECHR finds failure to recognise parents of children born as a result of international commercial surrogacy violates the right to privacy
Case of Foulon and Bouvet v France (Application No’s 9063/14 and 10410/14) (21 July 2016)
The 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.
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