Government’s response to human trafficking and slavery report

The Australian Government’s response to the Joint Standing Committee on Foreign Affairs, Defence and Trade’s Trading Lives: Modern Day Human Trafficking report was tabled in Parliament on 27 October 2014. Read the full report here.

Proposals for reform of the Native Title Act: ALRC calls for submissions

The ALRC has released a Discussion Paper, Review of the Native Title Act 1993 (DP 82). The paper contains a range of proposals and questions around connection requirements for the recognition and scope of native title rights and interests; authorisation; and joinder provisions. The ALRC is seeking feedback on these proposals (23 October 2014). Read the full article here.

Privacy complaints nearly triple in commissioner's final year

Privacy breach complaints almost tripled year-on-year between 2013 and 2014 in Australia according to a report from the Office of the Australian Information Commissioner (OAIC), which is set to be shut down this year (24 October 2014) Read the full article here.

Agencies urged to know FOI better

The Office of the Information Commission wants all Government Agencies to fully understand their legal obligations when dealing with Freedom of Information (FOI) requests. In the annual report for 2013-14, the number of access applications made to Agencies under FOI laws had steadily increased, from 3,323 in 1994-95 to 17,672 in 2013-14 - an increase of 432 per cent from 1995 (21 October 2014). Read the full article here.

Professor takes website to court over racist emails

‎The Sydney University professor suspended over racist emails has taken legal action against the website that published them. Lawyers for Professor Spurr argued the publication of the emails breached the Privacy Act, and the court granted an injunction preventing publication of any more details before another court hearing (22 October 2014). Read the full article here.

Federal Government resisting internal pressure to create national sex offenders register

The Federal Government is resisting internal pressure to create a national sex offenders register as the Opposition warns of the potential for vigilante behaviour (15 October 2014). Read the full article here.

High Court reserves decision over Tamil asylum seekers detained at sea

The High Court has reserved its decision in a challenge over the detention at sea of 157 Tamil asylum seekers and the plan to take them to India. The validity of the law used to detain the group in June has been under the spotlight (15 October 2014). Read the full article here.

David Eastman inquiry: Police reach agreement with DPP over secret evidence

A key sticking point to a decision on a retrial for David Eastman has been removed after Australian Federal Police (AFP) agreed to share confidential information about the case with prosecutors. ACT Chief Justice Helen Murrell told the parties if the decision was not forthcoming she would consider dispensing with bail conditions (10 October 2014). Read the full article here.

Australian surrogacy laws a ticking time bomb, children risk growing up in limbo, senior judges warn

The Chief Justice of the Family Court has warned Australian laws on international commercial surrogacy are being breached, saying the issue is a "ticking time bomb" as children born from international surrogates reach maturity in Australia (09 October 2014). Read the full article here.

Hunter Health appeals negligence ruling relating to mental health patient

Hunter New England Health begins a High Court appeal today, stemming from a negligence ruling relating to a mental health patient, turned killer. The Health Service is appealing that decision, arguing that the appeal court erred in concluding it owed a duty of care to Mr Rose and his family (08 October 2014). Read the full article here.

Copyright infringement in photograph: Federal Court refuses summary judgment application in case where identity of subject of photograph in dispute

The Federal Court of Australia recently considered what is required for a successful application for summary judgment in the context of a copyright and moral rights infringement claim ( 08 October 2014). Read the full article here.

Published - articles, papers, reports and regulation

OAIC: updated FOI Guidelines

OAIC has released an updated version of thirteen Parts of the Freedom of information guidelines (FOI guidelines) The new revisions are designed to provide up-to-date and practical guidance for FOI officers. A list of amendments can be found on theSummary of version changes to s 93A Guidelines webpage, including a comparison table for the consolidation of Parts 3 and 8. (02 October 2014)

Publishing and sharing sensitive data

Sarah Olesen; Australian National Data Service: Government of Australia: 23 September 2014

Sensitive data has often been excluded from discussions about data publication and sharing. It was believed that sharing sensitive data is not ethical or that it is too difficult to do safely. This opinion has changed with greater understanding and use of methods to ‘de-sensitise’ (i.e., confidentialise) data. Read more here.

Alcohol and other drug treatment and diversion from the Australian criminal justice system: 2012-13

Australian Institute of Health and Welfare; 14 October 2014

Nationally, there were 24,069 clients who had been diverted into alcohol and other drug treatment, comprising 24% of all clients, according to this report. Read more here.

The Public Law of Restitution

Greg Weeks; (2014) 38(1).Melbourne University Law Review 198

Restitution is the body of law that responds to unjust enrichment. It is a private law doctrine but, like other fields of private law such as the law of torts, it intersects significantly with public law. Case considered:  Woolwich Equitable Building Society v Inland Revenue Commissioners, in which the House of Lords held that an unlawful demand for a payment of tax which was not due was an unjust factor capable of making out unjust enrichment.

Advance copy: Collective Irrationality and the Doctrine of Precedent

(2014) 38(2) Melbourne University Law Review (Advance)

Centre Fellow Brendan Lim publishes on reconciling group decision-making with adherence to precedent, in the Melbourne University Law Review with Justice Stephen Gageler (01 October 2014). Read more here.

New Judicial Speech
The Supreme Court has made available Property rights to our bodies and to their products, a speech delivered by Justice James Edelman to the Australian Association of Bioethics and Health Law Conference on 03 October 2014 in Perth. Read more here.

Cases

‘DE’ and Department of the Prime Minister and Cabinet [2014] AICmr 112

Freedom of Information — Whether reasonable steps taken to locate documents — (CTH) Freedom of Information Act 1982 s 24A -  refuse access to documents requested under the Freedom of Information Act 1982 (the FOI Act). The number of complaints received by the department in relation to bullying (formal and informal as recorded) during the period between November 2007 and June 2010; and listed by Division. Read about the case here.

Arnold v Compass Group (Australia) Pty Ltd & Anor [2014] FCCA 1999

HUMAN RIGHTS – Application in a case for dismissal or strike out – claims of sexual harassment, sex discrimination and victimisation – whether jurisdiction to hear sex discrimination claim – whether sex discrimination and victimisation claims to be dismissed or struck out on basis of no reasonable prospect of success, lack of particularity or failure to comply with earlier orders – whether orders for compliance with earlier orders requiring points of claim with sufficient particularity.

COURTS AND JURISDICTION – Whether jurisdiction to hear sex discrimination claim – whether sex discrimination claim made to the Australian Human Rights Commission.

PRACTICE AND PROCEDURE – Application in a case for dismissal or strike out on basis of no reasonable prospect of success, lack of particularity or failure to comply with earlier orders – whether alternative orders for points of claim with sufficient particularity. Read about the case here.

Australian Postal Corporation v Nunez [2014] FCA 1095

ADMINISTRATIVE LAW – interpretation of s 37(7) of the Safety Rehabilitation and Compensation Act 1988 (Cth) – appeal from decision of Administrative Appeals Tribunal – whether a question of law arises – Meaning of “reasonable excuse”.

Administrative Appeals Tribunal Act 1975 (Cth) ss 43(2B), 44(1); Safety Rehabilitation and Compensation Act 1988 (Cth) ss 36, 37, 38. Read about the case here.

Rana v Australian Human Rights Commission [2014] FCA 1093

JUDICIAL REVIEW – whether Australian Human Rights Commission had denied applicant procedural fairness or had failed to discharge its functions under the Australian Human Rights Commission Act 1986 (Cth) – Australian Human Rights Commission consent to orders setting aside its decision

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 5, 16(1); Australian Human Rights Commission Act 1986 (Cth); Judiciary Act 1903 (Cth), s 39. Read about the case here.

Tajjour v New South Wales; Hawthorne v New South Wales; Forster v New South Wales [2014] HCA 35

Constitutional law – Implied freedom of political communication – Section 93X of Crimes Act 1900 (NSW) made it offence habitually to consort with convicted offenders after receiving official warning in relation to each convicted offender – Plaintiffs charged with offence against s 93X – Whether s 93X infringes implied freedom of political communication.

Constitutional law – Implied freedom of association – Whether Constitution contains an implied freedom of association independent of implied freedom of political communication.

Constitutional law – Powers of State Parliaments – Provisions of international convention ratified by Australia but not incorporated by statute in Australian domestic law – Whether capable of limiting power of State Parliaments to enact inconsistent legislation.

Words and phrases – "effectively burden", "habitually consort", "proportionality", "reasonably appropriate and adapted". Crimes Act 1900 (NSW), ss 93W, 93X, 93Y. Read about the case here.

Kerrison v Melbourne City Council [2014] FCAFC 130

CONSTITUTIONAL LAW – Implied freedom of political communication – whether enforcement of Council local laws and regulations that prohibited certain conduct in public gardens effectively burdened implied freedom of political communication

HUMAN RIGHTS – Charter of Human Rights and Responsibilities Act 2006 (Vic) – s 38(1) – whether making of Council local laws was incompatible with human rights as set out in the Charter – whether actions of Council officers undertaken pursuant to local laws and regulations were incompatible with human rights

PRACTICE AND PROCEDURE – Representative proceeding – whether primary judge erred in exercising discretion pursuant to r 9.21 of Federal Court Rules 2011 (Cth) to make orders that proceeding not continue as representative proceeding – factors relevant to exercise of discretion. Read about the case here.

Legislation

Bills

Telecommunications (Interception and Access) Amendment (Data Retention) Bill 2014

A Bill for an Act to amend the Telecommunications (Interception and Access) Act 1979, which will require internet service providers to store details of Australians’ internet use for two years.

Registered 30 Oct 2014 Introduced HR 30 Oct 2014

View the Bill here.

Acts and Instruments (Framework Reform) Bill 2014

The objective of the Bill is to implement a number of recommendations made by the 2008 Review of the Legislative Instruments Act 2003, and make a number of other amendments to improve the operation and clarity of legislative frameworks for Commonwealth Acts and instruments.

Justice Minister Michael Keenan second reading speech introducing the legislation on 22 October 2014

View the Bill here.

Freedom of Information Amendment (New Arrangements) Bill 2014

This Bill repeals the Australian Information Commissioner Act 2010 and amends the Freedom of Information Act 1982 (the FOI Act), the Privacy Act 1988 and the Ombudsman Act 1976 and other Acts to implement the 2014-2015 Budget measure, Smaller Government – Privacy and Freedom of Information functions – new arrangements.

The amendments in the Bill will abolish the Office of the Australian Information Commissioner (OAIC) and streamline arrangements for the exercise of privacy and freedom of information (FOI) functions

The Bill will largely restore the system for the management of privacy and FOI issues that was in operation before the establishment of the OAIC on 1 November 2010.

Registered 02/10/14; Introduced HR  02/10/14

View the Bill here.

Acts

Administrative Decisions (Judicial Review) Act 1977 (Act 59/1977)

Proposed amendment by Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014

Freedom of Information Act 1982 (Act 3/1982)

Proposed amendment by Albury-Wodonga Development Corporation (Abolition) Bill 2014

Legislative Instruments

Federal Circuit Court Amendment (2014 Measures No. 1) Rules 2014

These Rules amend the Federal Circuit Court Rules 2001, introduced on 22 October 2014

The Rules and Explanatory Statement can be viewed here.