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The Global Legal Monitor is an online publication from the Law Library of Congress covering legal news and developments worldwide. It is updated frequently and draws on information from official national legal publications and reliable press sources. You can find previous news by searching the Global Legal Monitor.

Israel: Naturalization Procedures for Gay and Non-Gay Partners to Be Harmonized

(Dec. 9, 2016) On December 8, 2016, Israel’s Attorney General, Avichai Mandelblit, announced that the government would make the procedures for naturalization of gay partners of Israeli nationals the same as those for non-gay partners.  Mandelblit’s announcement was made in response to a petition filed with the High Court of Justice by the Israeli Gay Fathers Association (GFA).  (Telem Yahav, Attorney General Approved an Historic Change: Equality for Gay Couples in Acquiring Citizenship, YNET (Dec. 8, 2016) (in Hebrew); Mor Shimoni, Israel to Ease Citizenship Process for Same-Sex Couples, JERUSALEM POST (Dec. 8, 2016.)

According to the petition, the state has applied differential treatment with regard to naturalization of gay Israelis who marry foreign nationals abroad.  Specifically, the GFA argued that the state implements faster procedures for heterosexual couples, usually requiring the foreign spouse to spend a four-year waiting period in Israel for naturalization, instead of the seven-year period required for gay partners who marry Israeli nationals abroad.  In addition, at the end of the process, gay spouses must give up their foreign nationality, while heterosexual spouses are permitted to retain it.  (Yahav, supra; Shimoni, supra; Handling the Status of Partners of Israeli Citizens, Including Same-Sex Partners, Guideline No. 5.2.0009 (Oct. 7, 2013), Israel Government Portal (in Hebrew).)

Having decided that it would harmonize the naturalization procedures applicable to gay couples and heterosexual ones, the state specified that the new procedure would only affect the process of naturalization of gay partners and would not affect the non- recognition of same-sex marriages conducted in Israel.  (Yahav, supra.)

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Australia: Police Response to Aboriginal Death in Custody and Ensuing Riot Ruled Discriminatory

(Dec. 9, 2016) On December 5, 2016, the Federal Court of Australia found in favor of an Aboriginal community from Palm Island, Queensland, in a class action case involving claims that officers of the Queensland Police Service (QPS) engaged in racial discrimination in responding to a riot that took place in 2004 following the death of an Aboriginal man in police custody. (Wotton v State of Queensland (No 5) [2016] FCA 1457, Federal Court of Australia website.) The applicants also claimed that the QPS had contravened the Racial Discrimination Act 1975 (Cth) (Federal Register of Legislation website) in its handling of the investigation of the death in custody.  (Id.)

Background

Cameron Doomadgee (commonly called Mulrunji), a 36-year-old Aboriginal man, died in police custody on Palm Island on November 19, 2004. That morning, he had been arrested near the police station after yelling out what the arresting officer, Senior Sergeant Chris Hurley, considered to be abuse directed at Hurley and an Aboriginal police liaison officer who was also on duty. Mulrunji was affected by alcohol and struggled with Hurley, leading to a fall near the door to the police station. He was then dragged “limp and unresponsive” into a cell and died within the next hour. (Federal Court of Australia, Wotton v State of Queensland (No 5) [2016] FCA 1457: Summary (Mortimer J, Dec. 5, 2016), Federal Court of Australia website.)

Mulrunji’s autopsy showed that he died of major internal injuries. The coroner’s preliminary report found that Mulrunji died after falling over a step. When the autopsy results were released, about a week after his death, Lex Wotton, an indigenous activist, “led angry residents on a riot through the town.” (Palm Island Riots: Federal Court Finds Police Acted with ‘Impunity’ in Racial Discrimination Lawsuit, ABC NEWS (Dec. 5, 2016).) The police station was burned down during the riot, along with the courthouse and Hurley’s home. (Palm Island Death in Custody Timeline, SYDNEY MORNING HERALD (June 20, 2007).)

Wotton was later convicted of inciting a riot and served 19 months in prison before being released on parole. A number of others involved in the riot also faced criminal proceedings. The death in custody “led to three coronial inquests, a review by the Crime and Misconduct Commission in Queensland, two reviews by the QPS, criminal proceedings against Senior Sergeant Hurley in which he was acquitted of manslaughter, and litigation by police officers about potential disciplinary action against them.” (Summary, supra.)

Class Action Case

The applicants in the case were Lex Wotton, his partner Cecilia Wotton, and his mother Agnes Wotton. The three brought the case on behalf of “a group of people affected, they allege, by unlawful race discrimination of QPS officers” during the period from November 19 to 28, 2004. (Id.) In addition, a “subgroup” of people were also represented, being those “who were affected by an operation carried out by armed officers of the Special Emergency Response Team (SERT) on 27 and 28 November 2004,” and which included “children who were in or near the houses that were entered and searched by SERT officers.” (Id.)

The Court was asked to “decide whether, in the police investigation into Mulrunji’s death, in the management of community concerns, tensions and anger on Palm Island in the week after his death, and in the police responses to protests and fires that occurred on 26 November 2004, officers of the QPS contravened section 9(1) of the Racial Discrimination Act 1975 (Cth).” (Id.) Section 9(1) of the Act states that

[i]t is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life. (Racial Discrimination Act 1975 (Cth).)

Essentially, the applicants “claimed that the police officers conducted themselves differently because they were dealing with an Aboriginal community and the death of an Aboriginal man.(Summary, supra.)

The Court’s Ruling

The judge in the case, Justice Debbie Mortimer, upheld a number of the applicants’ claims regarding contraventions of section 9(1), but not all of them. She awarded AU$220,000 (about US$164,000) in damages to the applicants. (Palm Island Riots: Federal Court Finds Police Acted with ‘Impunity’ in Racial Discrimination Lawsuitsupra.) She found that “the following conduct of QPS officers contravened s 9(1) of the RDA”:

  1. the inappropriate and partial treatment of SS Hurley;
  2. the treatment of Aboriginal witnesses;
  3. the conduct of DSS Kitching in relation to the autopsy report;
  4. the failure to suspend SS Hurley;
  5. the failure to communicate with Palm Islanders and defuse tensions in the intervening week between Mulrunji’s death and the protests and fires;
  6. the making and continuation of the emergency declaration after the evening of 26 November 2004; and
  7. the arrests, entries and searches of the houses of the applicants and the subgroup members. (Wotton v State of Queensland (No 5) [2016] FCA 1457, ¶ 1540.)

In the summary of her judgment, Justice Mortimer stated:

I have found that police acted in these ways because they were dealing with an Aboriginal community, and with the community of Palm Island in particular. I have found they conducted themselves, including Senior Sergeant Hurley while he was there, with a sense of impunity, impervious to the reactions and perceptions of Palm Islanders who were, in large numbers, distressed and agitated about the death of Mulrunji. Officers preferred confrontation to engagement and operated very much with an ‘us and them attitude. I am comfortably satisfied QPS officers would not have taken a similar approach, in any of the respects I have outlined above, if a tragedy such as this had occurred in an isolated non-Aboriginal community in Queensland. (Summary, supra.)

Reactions

The applicants’ lawyer, who took the case on a pro bono basis, stated following the ruling:

It’s the first time an entire community has been represented in a class action against a state of Australia alleging racial discrimination and being vindicated in that cause. You see terrible things happening to people without any remedies and there’s so much disillusionment in the Indigenous community because they just don’t get a fair go under our legal system. (Palm Island Riots: Federal Court Finds Police Acted with ‘Impunity’ in Racial Discrimination Lawsuitsupra.)

The president of the Queensland Police Union disagreed with the ruling, saying that the police response was “appropriate in the circumstances” and “[p]olice who serve in Indigenous communities are not racist, and purely because of someone’s Aboriginality do not treat anyone differently… .  The only people who deserve an apology are the police officers who were in the police station whilst it was being burnt down.” (Id.)

The Queensland government and QPS “said they would carefully consider the judgment before commenting further.” (Id.)

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United Kingdom: Surveillance Activity by UK Intelligence Agencies Ruled Unlawful

(Dec. 8, 2016) The Investigatory Powers Tribunal ruled on October 17, 2016, that the British Intelligence Agencies unlawfully collected the confidential personal data of British citizens in bulk for 17 years, from 1998 to 2015, when the activities were publicly acknowledged.  (Privacy International v. Secretary of State for Foreign and Commonwealth Affairs, [2016] UKIPTrib 15_110-CH.) The ruling was declared “one of the most significant indictments of the secret use of the government’s mass surveillance powers since Edward Snowden first began exposing the extent of British and American state digital surveillance of citizens in 2013.”  (Alan Travis, UK Security Agencies Unlawfully Collected Data for 17 Years, Court Rules, GUARDIAN ( Oct. 17, 2016).) The data collected included phone and Internet traffic and communications data. (Id.; Privacy International v. Secretary of State for Foreign and Commonwealth Affairs, supra.)

Particulars of the Case

The Intelligence Services claimed that the rules governing the use of bulk data were not defined in legislation, but the authority of the agencies to collect such information was provided for under the Intelligence Services Act 1994 and the Security Service Act 1989; it used the authority provided by these Acts in accordance with section 94 of the Telecommunications Act 1984.  (Privacy International v. Secretary of State for Foreign and Commonwealth Affairs et al., ¶ 6; Intelligence Services Act 1994, c. 13, LEGISLATION.GOV.UK; Security Service Act 1989, c. 5, LEGISLATION.GOV.UK; Telecommunications Act 1984, c. 12, LEGISLATION.GOV.UK;  Intelligence and Security Committee of Parliament, Privacy and Security: A Modern and Transparent Legal Framework, 2014-15, H.C. 1075, at 157.)

The legal challenge focused on the acquisition, use, retention, and disclosure of bulk communications data (BCD) by the security services under directions issued under section 94 of the Telecommunications Act 1984, and the use of this data.  The Tribunal noted the highly secretive nature of the communications data regime, saying “it seems difficult to conclude that the use of BCD was foreseeable by the public when it was not explained to parliament.”  (Privacy International v. Secretary of State for Foreign and Commonwealth Affairs et al., ¶ 70.)

The Ruling

The Tribunal found that the collection of the BCD did not comply with article 8 of the European Convention on Human Rights until the issuance of an “official handling arrangement” regulating how the collection, management, and destruction of such data should be managed, after which point the Tribunal held that the regime was compliant.  (Id. ¶ 101.)   The recently enacted Investigatory Powers Act 2016 will serve to place these powers on a clear, statutory basis. (Investigatory Powers Act 2016, c. 25, LEGISLATION.GOV.UK; Clare Feikert-Ahalt, United Kingdom: Controversial Surveillance Act Receives Royal Assent, GLOBAL LEGAL MONITOR (Dec. 8, 2016).)

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United Kingdom: Controversial Surveillance Act Receives Royal Assent

(Dec. 8, 2016) The Investigatory Powers Act, which has been under consideration for the past year and in various forms for the past few years, was recently enacted into law when it received Royal Assent.  It was introduced in draft form in autumn of 2015 (Draft Investigatory Powers Bill 2015, 2015-16 Cm. 9152, GOV.UK), as a 192-page bill; it has now been enacted as a 304-page Act (Investigatory Powers Act 2016, c. 25, LEGISLATION.GOV.UK).

Drafted in the wake of the disclosures by Edward Snowden, including that the government was conducting mass surveillance on United Kingdom citizens, the Act is expansive and covers a wide range of surveillance activities, including acquisition of communications data, equipment interference, and requirements for retaining and accessing bulk information.  It aims to clearly define the powers of the intelligence services and police, some of which have been used for a number of years without lawful authority.

Overview of Surveillance Powers

The Act introduces procedures for law enforcement and intelligence services to undertake equipment interference to access individuals’ electronic devices, including their computers, to obtain data such as communications via texts and email and geolocation.  (House of Commons Library, Investigatory Powers Bill, Briefing Paper No. 7518, Mar. 11 2016, Parliament website.) Bulk data may now be collected and examined with a warrant authorized by a senior law enforcement officer and approved by a Judicial Commissioner, if it is necessary and proportionate on the grounds of national security, to prevent or detect serious crime, or in the interests of the economic well-being of the UK.  Permitting the government to collect and retain bulk data by communications providers for up to a year and the requirement to provide this data to the securities services if issued with a notice and to remove encryption if requested are among the most contentious aspects of the Act.  (Id.; ‘Extreme Surveillance’ Becomes UK Law with Barely a Whimper, GUARDIAN (Nov. 19, 2016).)

Section 253 enables the Secretary of State to impose obligations on communications service providers in the form of technical capability notices, to facilitate assistance to warrants issued under specified parts of the Investigatory Powers Act.  It further provides that such obligations may include the removal of electronic protection applied by an operator, or any third party acting on their behalf, to any data or communications.  When making these notices, the Secretary of State is required to take into account the technical feasibility and cost of compliance, and section 249 provides that communications service providers would receive a contribution towards any costs they incurred to comply with the measure.  (Investigatory Powers Act 2016.)

Privacy Concerns

Given the intrusive nature of the powers included in this Act, privacy advocates have been highly critical of it.  These concerns were addressed in part in amendments to the Act, notably one from the Lords that inserted a statement in section 1 of the Act that reads “[t]his Act sets out the extent to which certain investigatory powers may be used to interfere with privacy.”  (Id.; Investigatory Powers Bill Published: Minimal Changes Are Not Even Cosmetic, Privacy International website (Mar. 1, 2016).)  Amid arguments that the Act did not sufficiently address privacy concerns, Lord Janvrin, who introduced this amendment in an attempt to place privacy at the forefront of the Act, noted “[t]hat there is merit in placing a simple statement right at the forefront of the legislation to provide additional clarity that there should be no doubt that privacy protection remains a fundamental priority.”  (774 Parl. Deb. H.L (5th ser.) (2016) 1789, Parliament website.)  Further provisions were included in the Act that require public authorities to have regard to a number of factors relating to privacy, including whether the objectives could be achieved by other, less intrusive means, prior to requesting a warrant, authorization, or notice.  (Investigatory Powers Act 2016, section 2.)

Other Criticisms

The Executive Director of Open Rights Group has stated that the Act provides for “a surveillance law that is more suited to a dictatorship than a democracy.  The state has unprecedented powers to monitor and analyse UK citizens’ communications regardless of whether we are suspected of any criminal activity.”  (‘Extreme Surveillance’ Becomes UK Law with Barely a Whimper, supra.)  The Act met considerable resistance both within the government and in private industry, representatives of which are concerned not only about the Act’s requirement that law enforcement and intelligence services be able to access an unprecedented number of communications, but also about the negative impact it could have on the UK’s technology industry.  (Id.)

Recommendations from the committee reviewing the Act note that the government should make it explicit that providers of “end-to-end encrypted communication or other un-decryptable communication services will not be expected to provide copies of those communications if it is not practicable for them to do so.”  (House of Commons Library, supra, at 71.)  Concerns were also raised that the language used in this would result in the prohibition of end-to-end encryption in the UK and the government was urged to clarify the nature of the obligations that would be imposed by the Act.  The government responded that a Code of Practice will contain further details as to the necessity and proportionality of imposing these requirements on communications service providers.  (Id. at 42.)

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Iraq: Legislating the Status of the Popular Mobilization Forces

(Dec. 7, 2016) On November 26, 2016, the Iraqi Parliament institutionalized the people’s fighting forces known as Al-Hashd al-Shaabi, or the Popular Mobilization (PM), by passing a special law on the matter. (Law of the Popular Mobilization Authority (2016 Law), Iraqi Parliament website (Nov. 26, 2016) (in Arabic).)

Under the new law, the PM is an independent organization with corporate personality, is a part of the Iraqi armed forces, and reports directly to the general commander of the armed forces. (Id. art 1.1.)  The PM is subject to all military laws in effect except those related to age and education requirements.  (Id. art 1.2.1.)  Members of the PM must be disengaged from all political, partisan, and social organizations, and no political activity by those members is permitted.  (Id. art 1.2.5.)  The commander of the PM will be appointed with the approval of the Parliament.  (Id. art 2.)

The 2016 law replaces an executive order on the PM issued earlier this year by the Prime Minister, Haider al-Ibadi, in his capacity as the Commander-in-Chief of the armed forces. (Order No. 91 (Feb. 2, 2016), IKH NEWS (July 26, 2016) (in Arabic).)

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