Victorian Supreme Court holds electroconvulsive treatment ordered against patients’ wishes a breach of human rights
PBU & 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.
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Bakery's refusal to supply cake with messages supporting gay marriage not discriminatory, UK Supreme Court holds
Lee 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.
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Human Rights Charter demands access to Koori Court, Victorian Supreme Court holds
Cemino 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.
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UK Surveillance Regime Violates Human Rights to Privacy and Free Speech, European Court of Human Rights holds
Big 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.
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Victorian Court of Appeal outlines how participating in the Koori Court process is relevant to sentencing
Honeysett 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.
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UK High Court finds BBC broadcast breaches Cliff Richard’s right to privacy
Sir 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.
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European Court of Human Rights finds Russia breached human rights of Pussy Riot members
Case 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.
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Victorian Supreme Court finds Charter does not protect right to wear nikab in Court
The 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).
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Hong Kong Court of Final Appeal finds immigration policy unlawfully discriminatory against same-sex couples
QT 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.
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Supreme Court of Victoria excludes admissions made by Italian speaker without interpreter present
In 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.
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US Supreme Court upholds Trump Travel Ban
Trump 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’.
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US Supreme Court holds warrant is required for accessing location data
Carpenter 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".
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Victorian Supreme Court finds owners corporations must modify apartments for owners with a disability
Owners 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.
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High Court rules that laws attempting to stop parole for people who murder police are not effective
Minogue 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.
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Interception of communications is consistent with human rights, European Court of Human Rights rules
Centrum 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.
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Canadian Supreme Court upholds refusal of law school accreditation due to discriminatory policy
Law 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.
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UK Supreme Court provides useful guidance on the distinction between employees and contractors
Pimlico 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.
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Defamation suit can be brought against Google
The 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.
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Baker's refusal to bake gay wedding cake
In 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.
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European Court of Human Rights finds Lithuania and Romania committed human rights violations due to involvement in the CIA’s rendition program
Abu 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.
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Supreme Court of Canada finds Quebec pay equity legislation violates Charter of Rights
Centrale 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).
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Unemployment benefits mistakenly paid by Croatian government do not have to be repaid, European Court of Human Rights finds
Čakarević 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.
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Divided US Supreme Court rules on whether corporations can be held liable under the Alien Tort Statute
Jesner 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.
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High Court confirms Immigration Assessment Authority powers under 'fast track' review process; broadens legal unreasonableness.
On 18 April 2018, the High Court of Australia handed down its first decision considering the contentious 'fast track review' process.
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Family Court of Australia rules transgender young people no longer need to apply to the Court for surgery
Re: 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.
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Swiss Court’s refusal to hear torture compensation case not a breach of the right to a fair hearing
Naït-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.
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European Court of Human Rights upholds German anti-Nazi propaganda law
Nix 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.
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Ahead of abortion referendum, Irish Supreme Court finds only right unborn children enjoy is right to life
M 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.
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Federal Court orders Australian Government to remove refugee children from Nauru to receive appropriate mental health treatment
FRX17 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.
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English family wins privacy case against TV channel which broadcast eviction against their wishes
Ali & 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.
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United States Supreme Court finds guilty plea cannot bar constitutional claim
Class 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.
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UK Supreme Court rules that police violated victims’ rights by failing to properly investigate sexual assaults
Commissioner 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.
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Supreme Court of the Australian Capital Territory rejects claim for compensation under the Human Rights Act
Lewis 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.
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Protecting the right of journalists to cover demonstrations: a win for journalistic information gathering in Europe
Butkevich 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”.
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New Zealand High Court finds insulting cartoons did not breach hate speech legislation
Wall 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.
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UK Court of Appeal finds metadata retention regime inconsistent with EU law
Secretary 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.
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European Court of Justice finds asylum seeker may not be subjected to a psychological test to determine sexual orientation
F 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.
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South African High Court finds notice provision inconsistent with freedom of assembly
Mlungwana 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.
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Swiss NGO sued for labelling politician's speech "racism" denied freedom of expression, European Court of Human Rights finds
GRA 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.
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European Court of Human Rights rules against public servant disclosing state documents
Catalan 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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Victorian Supreme Court accepts vaccination of children can be ordered, even against parents’ wishes
ZD v Secretary to the Department of Health and Human Services [2017] VSC 806 (22 December 2017)
The Supreme Court of Victoria held that the Children's Court Magistrate had the power to authorise the vaccination of three young children as a condition of interim accommodation orders under the Children Youth and Families Act 2005, contrary to the wishes of both parents. Justice Osborn held that s 263(7) of the CYFA is only capable of one interpretation and therefore the rights under the Charter of Human Rights and Responsibilities Act 2006 (VIC) were not relevant to the construction of the subsection.
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New Zealand court finds risk of indefinite detention is a "compelling or extraordinary circumstance" in decision whether to extradite accused people smuggler to Australia
Maythem Kamil Radhi (Appellant) v The District Court of Manukau (The First Respondent) and The Commonwealth of Australia (The Second Respondent) [2017] NZSC 198
The Australian Federal Police sought the extradition of a New Zealand resident, alleging that he was involved in helping asylum seekers travel from Indonesia to Australia. The New Zealand Supreme Court found that although the man was eligible for surrender, there was a "real risk" that he would be subjected to indefinite administrative detention once in Australia and that this risk constituted a compelling or extraordinary circumstance warranting referral to the Minister.
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Canadian Supreme Court finds employment discrimination does not need to come from manager
British Columbia Human Rights Tribunal v Schrenk [2017] 2 SCR 795
The majority of the Supreme Court of Canada decided that the law prohibits discrimination perpetrated against an employee by any person integral to their employment context, not just someone with managerial control.
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Nauru abolishes appeals to Australian High Court after series of asylum seeker decisions
BRF038 v The Republic of Nauru [2017] HCA 56; HFM045 v The Republic of Nauru [2017] HCA 50; DWN042 v The Republic of Nauru [2017] HCA 56
The Nauruan Government recently abolished the mechanism by which parties could appeal decisions from the Supreme Court of Nauru to the High Court of Australia, leaving asylum seekers without an avenue of appeal to challenge unsuccessful decisions of the Supreme Court. This move has come shortly after the High Court's recent landmark decision in BRF038 v The Republic of Nauru [2017] HCA 56 where it held that, in certain circumstances, appeals from the Supreme Court to the High Court lie as of right, without the parties first having to seek leave of the Court.
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Victorian Charter case finds human rights violated when prison prevented delivery of a book
Minogue v Dougherty [2017] VSC 724
The Victorian Supreme Court has found that a prisoner’s rights to privacy and freedom of expression under the Charter of Human Rights and Responsibilities Act 2006 (Vic) were violated when a book of philosophy addressed to him was returned to its sender, while dismissing other human rights claims about receiving and sending mail, and accessing photocopying services. While Justice John Dixon found that the plaintiff’s Charter rights were breached when the mail officer failed to turn her mind to his rights, he did not award damages as the plaintiff’s case had not made out a substantive breach of rights
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Family Court of Australia clears the way for young trans people to access hormone treatment without court authorisation
Re Kelvin [2017] FamCA 78
The Full Family Court of Australia has held that Stage 2 hormone treatment for transgender young people does not require the court’s authorisation. Court intervention will remain necessary where there is controversy or disagreement between parents or between treating doctors and parents.
Until this case, it is understood that Australia was the only jurisdiction in the world to require transgender young people to seek court authorisation to access treatment. This has drawn criticism from doctors, parents and advocates for unnecessarily increasing mental health risks for transgender young people.
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The Inter-American Court of Human Rights calls for the recognition and protection of LGBTI rights
Inter-American Court of Human Rights OC-24/17 of 24 November 2017 – Gender identity, equality and non-discrimination of same-sex couples
The Inter-American Court of Human Rights has recognised the obligation of all member States to ensure same-sex marriages are protected by law and treated equally to heterosexual marriages. The Court also called for member States to put in place an administrative procedure to allow a person to easily change their registered personal information to correspond with their own self-perceived gender identity.
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Eritrean refugees one step closer to trial in a Canadian court case alleging serious human rights abuses
Araya v Nevsun Resources Ltd., 2017 BCCA 401
A group of Eritrean refugees are one step closer to trial in a Canadian court case alleging serious human rights abuses against a Canadian mining company, after the British Columbia Court of Appeal dismissed a strike-out application. The decision is the first time that a Canadian appellate court has allowed a tort claim for breaches of international law peremptory norms – such as the prohibition of slavery – to proceed.
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Irish High Court recognises personal constitutional right to environment
Merriman v Fingal County Council; Friends of the Irish Environment Clg v Fingal County Council [2017] IEHC 695
In November 2017, the Irish High Court recognised the existence of a personal constitutional right to an environment that is consistent with the human dignity and well-being of citizens at large.
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