Index. 224 (2003) 10 AJ Admin L 224

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1 Administrative Appeals Tribunal (AAT) AAT Act enactment, definition of, 158 decisions of powers of review of ASIC decisions, legislative basis, unreasonableness of penalty, Administrative Decisions Tribunal NSW (ADT) establishment and organisation, history and commencement, jurisdiction and character, appellate, contrary provision and s 40, 191 merits review, 181, original, statutory inconsistencies and s 40, 191 objectives, procedure, costs, implications for procedure and practice, onus of proof, 195, reviewable decisions, review and reasons, Administrative law see also Tribunals contracting out, contractors, 80 corporate regulation, free market regulation, effects on, judiciary, as third arm of government, judicial review at common law, procedural fairness, natural justice see Procedural fairness parliamentary executive and the judiciary, relationship between, private law remedies as an alternative, relevance in relation to contracting out of employment services, remedies, contracting out of employment services, availability of, 79 Administrative Review Council Council of Australasian Tribunals, establishment of, Al Masri case, detention pending removal, 22 Alternative dispute resolution see Dispute resolution Anti-Discrimination Tribunal of Tasmania see Tribunals ASIO see Australian Security Intelligence Organisation Asylum seekers see Refugees Australian Securities and Investments Commission (ASIC) ASIC v Donald, unreasonableness of penalty, enforcement of undertakings, 171 review of decisions by the AAT, s 93AA undertakings, Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 Advisory Report of the Parliamentary Joint Committee on ASIO, ASIS and DSD, annual reporting, 69 complaints, 70 detention and s 34F, 69 Inspector-General of Intelligence and Security, judicial review of detention, sunset clause and parliamentary review, (2003) 10 AJ Admin L 224

2 Contracting out government services, history of, microeconomic reform, Council of Australasian Tribunals (COAT), establishment of, 65 goals, 66 Custody of non-citizens see Migration Act Damages Lord Cairn s Act, 206 Detention see also Refugees ASIO (Terrorism) Bill see Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 asylum seekers and refugees, international legal principles relating to detention of, rights in detention, Australian courts and international human rights law, children, 56-60, 62 conditions and rights of detainees, definition of, deportees, power to detain, 23 detainees, statistics, 32 detention in custody, powers, 13 international case law, international comparison of detention laws, law relating to, 5 Australian mandatory detention legislation and international law, consideration by Australian courts, 5-32 international human rights, Refugee Convention, mandatory detention government policy, reasons, features in Australia, pending removal see Al Masri case powers of court to release detainees, 17 Tampa litigation, detention of rescuees, 20 unlawful detention Tampa case, 19 Dispute resolution Ombudsman of Victoria, overseas students in Australia, conditions for, appropriate service provider, Education Services for Overseas Students Act National Code for Practice for Registration Authorities and Providers of Education and Training to Overseas Students, grievance handling and dispute resolution, impossible enforcement for failures of an advice, objectives, prerequisite for arrangement, 167 provider, definition of, 163 Enactment definition of under AAT Act, 158 Evidence Tribunal proceedings admission of evidence, objections on grounds of relevance, 88 disclosure of documents procedural fairness, expert witness, testimony, hearsay rule, nature of hearings, no evidence principle, opinion rule, relevance rule, Tasmanian quasi-judicial tribunals, rules of evidence, Executive power, scope in detention of aliens, 112 (2003) 10 AJ Admin L

3 Grievance handling see Dispute resolution Guardianship and Administration Board of Tasmania see Tribunals Habeas corpus claim for order in Tampa case, executive power, effect on, Hearsay evidence see Evidence Hickman principle, , 144 rule of construction, 131 privative clause authority, Human rights Australian courts and international human rights law, detention and international human rights instruments, international, 5 Immigration Australian immigration laws, 5-12 detention, 5-32 consideration by Australian courts, history of immigration detention in Australia, 6-24 International human rights see Human rights Judicial review majoritarian populism, theory of, migration decisions, pharmaceutical benefits, privative clauses, purposes, 150 reasons for excluding particular decisions, judiciability at common law, judiciability under the ADJR Act, , 157 Lam case see Minister for Immigration and Multicultural Affairs, Re; Ex parte Lam Legitimate expectation see Procedural fairness Lim case, Migration Amendment Act 1992, custody of non-citizens, Local authorities duties, regulations and discretion of the court, services, refusal to supply, 202 Mandatory detention see Detention Medical Council of Tasmania see Tribunals Merits review, 149, 181, purpose, reasons for excluding particular decisions, recommendations for tribunal, 182 Migration see also Refugees, see also Tampa MV Border Protection (Validation and Enforcement Powers) Act 2001, 21 Border Protection Bill 2001, Migration Act Australian mandatory detention legislation and international law, Amendment Act, new Div 4B, custody of non-citizens, 12 constitutional validity of amendments, 125 damages for false imprisonment, 17 excised offshore place, 21 judicial supervision of decisions under the Act, privative clause definition, 128 invalidity of, 129 s 474 and s 486A constitutional validity, construction of, invalidity of, unlawful non-citizens, Minister for Immigration and Multicultural Affairs, Re; Ex parte Lam 226 (2003) 10 AJ Admin L 224

4 case and comment, factual background, High Court decision, 209 legitimate expectations, procedural fairness, denial of, Natural justice see Procedural fairness Overseas students see Students Pharmaceutical Benefits Scheme (PBS) background, drug recommendatory decisions, judicial review, availability of, merits review, availability of, , 160 National Health Act, effect of, 146, s 101, Plaintiff S157/2002 v Commonwealth of Australia, background to proceedings, Hickman principle, discussion of, , 144 implications for future cases, grounds of review jurisdictional error, jurisdiction, time limits, 137 implications for future legislative amendment, 145 Migration Act 1958 s 474 and s 486A, constitutional validity of, construction of, invalidity, outcome of proceedings, privative clause decisions, Privative clauses see also Hickman principle construction of, 129 subject to Constitution, 129 definition, 128 general principles, Procedural fairness, see also Evidence critical or adverse information, denial of, 211 disclosure of documents, legitimate expectation, principle of, departure from, extension to public at large, 211 history of doctrine, Lam and Teoh cases, discussion of, necessary to show actual unfairness, 212 ramification of treaty, effects upon, rules of, Public duties courts discretion of, mandatory orders, damages, breach of statutory duty, 206 enforcement by court, impossibility of performance, costs of compliance, remedy, judicial consideration, 202 judicial remedies, 201 public officers and authorities, duties of, scope and enforceability, Refugees see also Detention, see also Tampa MV, see also Minister for Immigration and Multicultural Affairs, Re; Ex parte Lam asylum seekers Afghan, asylum seekers Vietnamese, asylum seekers Cambodian, (2003) 10 AJ Admin L

5 asylum seekers and refugees, international legal principles relating to detention of, Border Protection (Validation and Enforcement Powers) Act 2001, 21 children, best interests, 209 criminal records, cancellation of visa, 208 judicial review, impact on, law relating to, mandatory detention laws, 5-32 Refugees Convention and unlawful noncitizens, 24 rights, conflict of laws, 61 Remedies see also Damages damages as an alternative, judicial, coercive, 205 jurisdiction of courts, 201 mandamus and mandatory injunctions, 201 Resource Management and Planning Appeals Tribunal of Tasmania see Tribunals Separation of powers, Students definition of intending overseas student, 164 grievance handling and dispute resolution, Tampa MV circumstances, description of, events in parliament, claim for order in nature of habeas corpus, detention of rescuees, 20 function of Refugees Convention, 20 judicial power, effect on legality of detention, 30 legislative endorsement, , 125 Border Protection Bill 2001, litigation, 19-21, separation of powers, in relation to, Tebutt s case, Teoh case, Convention on the Rights of the Child, ratification by Australia, 210 legitimate expectations,, Tribunals AAT see Administrative Appeals Tribunal administrative tribunals, background and purpose, ADT see Administrative Decisions Tribunal COAT see Council of Australasian Tribunals merits review tribunals see Merits review rules of evidence, whether binding, 86 Tasmanian quasi-judicial tribunals Anti-Discrimination Tribunal of Tasmania, Guardianship and Administration Board of Tasmania, Medical Council of Tasmania, natural justice, 86 see also procedural fairness nature of hearings, Resource Management and Planning Appeals Tribunal of Tasmania, rules of evidence, Universities see also Education Services for Overseas Students Act grievance handling/dispute resolution for overseas students see Dispute resolution immunity for failure of appropriate arrangements, University of Melbourne, dispute with, (2003) 10 AJ Admin L 224

6 University students see Students (2003) 10 AJ Admin L