High Court finds Nauru Tribunal unreasonable to refuse protection application without hearing from the applicant

TTY167 v Republic of Nauru

The High Court of Australia has decided that Nauru's Refugee Status Review Tribunal (Tribunal) acted unreasonably in refusing the appellant's protection application after the appellant failed to appear before the Tribunal at a scheduled hearing. 

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The Supreme Court of Canada requires media company to produce communications between journalist and alleged terrorist

R v Vice Media Canada Inc 2018 SCC 53

Summary

The Supreme Court of Canada dismissed an appeal and upheld an order requiring appellants Vice Media Canada Inc. (Vice) and its journalist Ben Makuch (the appellants) to produce communications with Farah Shirdon, a Canadian man suspected of joining ISIS in Syria. The case questions how to balance the freedom and protection of the press with the state’s criminal investigative responsibilities.

Facts

In 2014, Vice published three stories written by Mr Makuch about Mr Shirdon. These stories were based on messages the two men exchanged using the instant messaging mobile app Kik Messenger. Kik Messenger does not store the content of messages on its servers, so the only records of the messages were on the mobile phone handsets of the two men. The articles made clear that Mr Shirdon had made statements that, if true, were strong evidence implicating him in multiple terrorism offenses.

As part of the investigation into Mr Shirdon’s activities, the police sought and obtained an ex parte order directing the appellants to provide screenshots of the messages with Mr Shirdon. The appellants unsuccessfully challenged the order before appealing to the Supreme Court.

Decision

Justice Moldaver delivered a majority opinion for the Court, with Justices Gascon, Côté, Brown and Rowe joining. Justice Abella delivered a concurring minority opinion on behalf of herself, Chief Justice Wagner and Justices Karakatsanis and Martin.

The majority dismissed the appeal holding that, on the facts, “the state’s interest in investigating and prosecuting the alleged crimes outweighs the appellants’ right to privacy in gathering and disseminating the news” (at [5]). The majority made reference to the following factors in dismissing the appeal:

  • the disclosure not revealing a confidential source or “off the record” communications;

  • a lack of an alternative source through which the materials could be obtained;

  • the source having used the media to broadcast his extremist views; and

  • the state’s interest in investigating and prosecuting alleged crimes.

 

The court declined to confer discrete constitutional protection on the media from the words “freedom of the press” in s 2(b) of the Canadian Charter of Rights and Freedoms (Charter). This section reads “[e]veryone has the following fundamental freedoms: … freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”. In declining to recognise this protection, Justice Moldaver wrote that he did “not view this appeal as an appropriate venue in which to formally recognise a distinct and independent constitutional protection for freedom of the press” (at [105]).

By contrast, the minority argued, at [109]-[110]):

For twenty-five years, this Court has flirted with acknowledging that s 2(b) of the Charter protects independent rights for the media. Unlike the majority, I see no reason to continue to avoid giving distinct constitutional content to the words “freedom of the press” in s 2(b). The words are clear, the concerns are real, and the issue is ripe.

A strong, independent and responsible press ensures that the public’s opinions about its democratic choices are based on accurate and reliable information. This is not a democratic luxury – there can be no democracy without it.

The majority judgment set out guidelines relating to investigative orders and the media.

Guideline one: standard of review to be applied before authorising a production order relating to the media.

Justice Moldaver conducted a review of key precedents dealing with publication orders directed at the media, which established a framework setting out the factors for judges to consider regarding an application for such orders.

Justice Moldaver modified certain aspects of this framework, including requiring that assessment of the effect of prior partial publication be done on a case by case basis and setting out a four part analysis for judges to undertake when considering such applications, being:

  1. whether to exercise their discretion to require notice to the media;

  2. whether all statutory preconditions have been met;

  3. balancing the state’s interest in the investigation and prosecution of crimes and the media’s right to privacy in gathering and disseminating the news through considering a number of factors; and

  4. whether it would be appropriate to impose conditions on the order.

The appellants proposed two further reforms to the framework; first a presumption of a “chilling effect” whenever the state seeks a production order relating to the media. “Chilling effect” was defined broadly at [26] as “stifling or discouragement of the media’s legitimate activities in gathering and disseminating the news for fear of legal repercussions”. Despite acknowledging that proving the existence and extent of such effect is difficult, the majority declined to adopt this reform. Second, that confidential and non-confidential sources should receive the same treatment when assessing whether to grant a production order. In rejecting these reforms, Justice Moldaver expressed a reluctance to break with precedent.

Guideline two: standard of review to be applied when reviewing a production order relating to the media

The majority formally recognised that the Garofoli standard (R v Garofoli [1990] 2 S.C.R. 1421) applies to applications to set aside investigative orders relating to the media, while also recognising that this standard may result in  “significant unfairness where … information that could reasonably have affected the decision was not before the authorizing judge” (at [76]). Consequently the majority modified the standard in circumstances where such an order was made ex parte: “if the media points to information not before the authorizing judge that, in the reviewing judge’s opinion, could reasonably have affected the authorizing judge’s decision to issue the order, then the media will be entitled to a de novo review” (at [73]).

By contrast, the minority argued that where an ex parte authorisation against a journalist or media company has been made, the press should be entitled to a de novo hearing (at [160]).

Guideline three: no presumptive notice requirement in circumstances where the police are seeking a production order relating to the media

The Court declined to impose a presumptive notice requirement, citing clear legislative authority for applications to be brought ex parte by certain parties. The majority also cited the decision in National Post as another factor in declining to impose a presumptive notice requirement, again demonstrating reluctance to break with previous decisions of the Court (particularly recent decisions). Justice Moldaver did note however that “the authorizing judge retains discretion as to the timing of when the media will be permitted to present its case” (at [63]).

Commentary

The Court recognised the integral role that a free press plays in a democracy. However, despite this acknowledgment the Court was also united in its decision that, on the facts of this case, the state’s interest in investigating criminal activities should be prioritised over the media’s right to operate without state intrusion. Journalists in Canada have described the decision as a major setback for investigative journalism and democracy, arguing that the orders will discourage whistleblowers from turning to journalists.  

As the facts in this case arose before Canada’s Journalistic Sources Protection Act S.C. 2017 was in force it remains an open question as to whether this Act will affect the balance struck between these interests.

See the full reasons for decision here.  

Rebecca Laban (Senior Associate) and Laura Ryan (Lawyer) at Norton Rose Fulbright

 

High Court condemns conduct of Victorian police and barrister who informed on her client

AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) [2018] HCA 58

The High Court of Australia demonstrated its reluctance to uphold entitlements to confidentiality and privilege where there are egregious breaches of one’s right to a fair trial and legal professional privilege. The main issue before the High Court was between Victoria’s Director of Public Prosecutions (DPP), who wanted to disclose information discovered by Victoria’s anti-corruption commission, and the Chief Commissioner of Victoria Police (Police Commissioner), who opposed disclosure because of security risks to a police informant (EF) who was simultaneously acting as a defence barrister for Tony Mokbel and six of his criminal associates (Mokbel and Associates).

The High Court found in favour of disclosure, holding that EF’s actions were “fundamental and appalling breaches of [her] obligations as counsel to her clients and of her duties to the court”. The Court also described the actions of Victoria Police as “reprehensible conduct in knowingly encouraging her” and “atrocious breaches of the sworn duties imposed on every police officer”.

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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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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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