Step Two: If you still did not like the decision, you could take it for an external review

Transcription

1 Step Two: If you still did not like the decision, you could take it for an external review THEME: The effectiveness of legal mechanisms in achieving justice for individuals and society

2 HIGH COURT (FULL COURT) - Seven judges - Final court of appeal HIGH COURT (PARTIAL) judges - Appeals from NSW Courts of Appeal on criminal and civil matters. NSW SUPREME COURT NSW COURT OF CRIMINAL APPEAL - Deals with appeals from criminal cases (again, usually has three judges). - Often hears stated cases (not going through the WHOLE trial again just going through the original judge s decision and deciding if there was a mistake of law NSW COURT OF APPEAL This is part of the Supreme Court, but it usually has three judges. NSW SUPREME COURT (SINGLE JUDGE) - Very serious criminal cases, such as murder. - Civil cases involving over $750, Civil matters such as wills, injunctions DRUG COURT Deals with offenders who are dependent on drugs. - Serious criminal cases such as armed robbery, sexual assault. Basically anything except murder, treason or piracy. NSW DISTRICT COURT - Civil cases between $100,000 - $750,000. NSW Civil and Administrative Tribunal (NCAT) CORONER S COURT - Holds inquests (investigations into unexplained deaths and fires) - Can make recommendations about changes that should be made to stop future deaths CHILDREN S COURT - Criminal cases dealing with children and young people. - Cases about the care and protection of children. - Minor criminal matters. - Committal hearings: When you are charged with any crime, you go to a local court first to decide if: a) There is any real evidence or if your case to continue (Is there a prima facie case? On the face of it, just by quickly looking at the facts?) b) Which court your case should be held in (District? Supreme?) NSW LOCAL COURTS - Civil disputes under $100,000 STATE court hierarchy Deals with civil cases JURISDICTION key Both (incl. appeals) Deals with criminal cases

3 HIGH COURT (FULL COURT) - Seven judges - Final court of appeal HIGH COURT (PARTIAL) judges - Appeals from NSW Courts of Appeal on criminal and civil matters. NSW SUPREME COURT NSW COURT OF APPEAL This is part of the Supreme Court, but it usually has three judges. NSW Civil and Administrative Tribunal (NCAT) STATE court hierarchy

4 HIGH COURT (FULL COURT) - Seven judges - Final court of appeal HIGH COURT (PARTIAL) judges - Cases brought by, or against, the federal government. FEDERAL COURT (FULL) Appeals from single judge. FAMILY COURT (FULL) Appeals from single judge. FEDERAL COURT (SINGLE) - Cases under COMMONWEALTH LAWS e.g. taxation, corporations, bankruptcy, trade practices, Native Title, etc FAMILY COURT (SINGLE) Cases regarding marriage and divorce. FEDERAL CIRCUIT COURT - Shorter and simpler cases that could have gone to the Federal Court (e.g. 95% of bankruptcy applications) - Shorter and simpler cases that could have gone to the Family Court (80% of family court applications, e.g. divorce with no children) NATIVE TITLE TRIBUNAL ADMINISTRATIVE APPEALS TRIBUNAL - Native Title cases - Appeals from Federal tribunals FEDERAL MIGRATION REVIEW TRIBUNAL SOCIAL SECURITY APPEALS TRIBUNAL REFUGEE REVIEW TRIBUNAL FEDERAL court hierarchy Deals with federal law cases Deals with family law cases court hierarchy Both federal law AND family law cases, incl. appeals

5 HIGH COURT (FULL COURT) - Seven judges - Final court of appeal HIGH COURT (PARTIAL) judges - Cases brought by, or against, the federal government. FEDERAL COURT (FULL) Appeals from single judge. FEDERAL COURT (SINGLE) - Cases under COMMONWEALTH LAWS e.g. taxation, corporations, bankruptcy, trade practices, Native Title, etc MIGRATION REVIEW TRIBUNAL ADMINISTRATIVE APPEALS TRIBUNAL - Appeals from Federal tribunals SOCIAL SECURITY APPEALS TRIBUNAL REFUGEE REVIEW TRIBUNAL FEDERAL court FEDERAL hierarchy court hierarchy

6 - Administrative Step Two: A case like this will usually end up in an Administrative Tribunal (a special type of court that deals with administrative decisions like this). Because our example is a migration issue, it would go to the Migration Review Tribunal, which is like a court (only it costs less and they are all experts on migration laws). If it was a case where you thought the government had denied you a Centrelink pension, it would go to the Social Security Appeals Tribunal. If it was about you being denied refugee status, it would go to the Refugee Review Tribunal. You get the point.

7 - Administrative Step Three: If you STILL have a good reason to appeal THAT decision, it can go to a federal tribunal the Administrative Appeals Tribunal (AAT). The AAT will look at the evidence, the relevant guidelines (e.g. the law that covers who is allowed to get visas) and the original decision (e.g. by the Migration Review Tribunal). It will choose to do one of four things: 1. Reverse the previous decision; 2. Make its own decision; 3. Order the original decision to be reconsidered (by the person who made it); 4. Dismiss the appeal If it was an issue with a decision of a State government department, it would go to the NSW Civil and Administrative Tribunal

8 - Judicial Step Four: Even after that you can STILL appeal to the Federal Court

9 - Judicial Step Five: And, possibly, the High Court of Australia

10 - Judicial Step Something : You might be able to go to the Commonwealth Ombudsman (who is also the Immigration Ombudsman). This is ONLY if there was an action taken by the decision-maker that was: - Unreasonable; - Unjust; - Oppressive; - Improperly discriminatory; or - Not properly explained The Commonwealth Ombudsman is ALSO counted as the Defence Force Ombudsman, the Taxation Ombudsman, etc, etc. The States also have their own ombudsmen (e.g. the NSW Ombudsman, if, say, you have been mistreated by NSW Police). It s where you go if you feel you ve been really badly mistreated, rather than just someone made a decision that didn t go my way.

11 Step Seven: Give up. You lost.

12 Statutory bodies are authorities created by a statute law for a public purpose.

13 1. Australian Human Rights Created by the Australian Human Rights Act 1986 (Cth) The AHRC can investigate and (try to) resolve complaints about discrimination and breaches of human rights.

14 1. Australian Human Rights It can hear complaints about people being discriminated against in breach of laws like the Racial Discrimination Act 1975 (Cth). It can ALSO deal with complaints about breaches of HUMAN RIGHTS where they are against the Commonwealth Government (or one of its agencies) that are against international human rights agreements, like the International Covenant on Civil and Political Rights.

15 1. Australian Human Rights The AHRC will (if it s possible, and it s not a bad idea in that situation) try to help resolve the dispute through conciliation (mediation, but with an expert that gives advice). If the AHRC finds that there HAS been a breach of someone s human rights, they: - prepare a report; and - make recommendations to the Minister in charge of that area of the law. The report of what happened (including what action the Minister took) then goes to the Attorney-General and gets tabled in parliament (is made public and part of the permanent record).

16 1. Australian Human Rights The AHRC Brown v Commonwealth of Australia (Department of Immigration and Citizenship) (2012) found therefore that the failure to place Ms Brown in community detention or other less restrictive form of immigration detention arbitrarily interfered with her family in breach of articles 17(1) and 23(1) of the ICCPR.

17 1. Australian Human Rights The AHRC Brown v Commonwealth of Australia (Department of Immigration and Citizenship) (2012) also found that the decision to place Ms Brown, an unaccompanied female, in an area of VIDC that was predominantly occupied by males, amounted to a failure to treat Ms Brown with humanity and with respect for the inherent dignity of the human person in breach of article 10(1) of the ICCPR.

18 1. Australian Human Rights The AHRC Brown v Commonwealth of Australia (Department of Immigration and Citizenship) (2012) recommended that the Commonwealth pay $450,000 in compensation to Ms Brown and that the Commonwealth provides a formal written apology to Ms Brown for breaching her human rights.

19 1. Australian Human Rights The Minister for Immigration Brown v Commonwealth of Australia (Department of Immigration and Citizenship) (2012) denies that it breached Ms Brown s human rights and has, accordingly, refused to pay compensation. has also declined to apologise to Ms Brown.

20 2. Independent Against Corruption The Independent Against Corruption (ICAC) has a huge amount of power. It was created by ICAC Act 1988 (NSW) as an independent statutory body to investigate possible corruption IN the government (and government departments). Corrupt behaviour could be: bribery; fraud; or theft. The ICAC has the authority to ask the police to help with its investigations (e.g. search for and seize evidence).

21 2. Independent Against Corruption Operation Bellin (2009) The Chinese parents of a Year 5 kid at a public primary school tried to bribe the boy s teacher with $2500 to help get him into Baulkham Hills High. The teacher reported it and the ICAC investigated the parents.

22 2. Independent Against Corruption The ICAC found that the parents had engaged in corrupt behaviour by improperly trying to influence the decision about their son getting into a selective school.

23 2. Independent Against Corruption The ICAC recommended that the parents be charged by police for offering a corrupt benefit (section 249B(2) of the Crimes Act 1900 (NSW)). The Mum was later convicted and got a 150-hour community service order.

24 2. Independent Against Corruption Operation Jarek (2012) 15 Members of Local Councils were found to be corrupt.

25 3. Royal A Royal is a MAJOR government inquiry into an issue. The power to start a Royal comes from the Royal s Act 1902 (Cth). Royal s are set up for a specific purpose and for a limited time. They are interested in finding out whether there are problems WITH THE SYSTEM ITSELF, not just one person s decisions.

26 3. Royal Royal s do not have the power to prosecute offenders. They cannot send people to prison. At the end of an inquiry, the commission will produce a report containing recommendations, which may include recommending that certain people be charged with crimes. It is up to the government to decide what to do with those recommendations and the evidence provided to them by the Royal.

27 3. Royal Royal s are known for lifting the lid on issues (finding out what s REALLY been going on). For example - Aboriginal deaths in custody (Commonwealth, 1987); - Corruption in the NSW police service (NSW, 1995); Victorian Bushfires (Victoria, 2010) AND NOW

28 3. Royal The Royal will inquire into how INSTITUTIONS with a responsibility for children have managed and responded to allegations and instances of child sexual abuse and related matters. The ers can look at any private, public or non-government organisation that is, or was in the past, involved with children, including government agencies, schools, sporting clubs, orphanages, foster care, and religious organisations. Gathering of evidence a challenge for Royal, ABC News (2013)

29 Questions 1. What would we call the diagram in slide 2? 2. What are the two major ways that an individual can resolve disputes with the government legally? (Mr Aziz will help with this) 3. What is the difference between a tribunal and a court? (Mr Aziz will help with this in class) 4. Give an example of a tribunal (administrative function)? (slide 6-7) 5. Give an example of a court that can resolve disputes between individuals and the government. (slide 8-9) 6. What is an example of a statutory body? How can a statutory body resolve disputes between individuals and the government? (slide and Mr Aziz will talk about this) 7. What is the ICAC and how is this a legal mechanism? (slide 21) 8. What is an example of an ICAC case that was investigated? (slide 21-23) 9. What is the Royal and how is this a legal mechanism? (slide 25) 10. What does the Royal have the power to do and what do they not have the power to do? (slide 26) 11. Give an example of a Royal. (slide 27)