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:

  1. 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;
  2. 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;
  3. the excessive and disproportionate declaration of an emergency situation; and
  4. 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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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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