Unit 4 AOS 2 : People, Parliaments, Courts (Case Studies) Flashcards
Judicial Conservatism
Re Gallagher [2018], Senator Katy Gallagher ineligible to sit as serving member of parliament as she was a dual British citizen, which was not allowed under section 44(i)
Judicial Activism
Mabo case where the High Court justices overturned the longstanding but false legal principle that Australia was an ‘empty land belonging to no one’ (terra nullius) before British colonisation. Established a new precedent that native title could be granted to Indigenous Australians
VLRC - Commitals (2020)
- The VLRC was asked to investigate whether Victoria should maintain, abolish, replace or reform the present committal system, to ensure its processes best supported victims and witnesses and procedural fairness for the accused
- Committals process is a significant part of the justice system as it relates to all parties in a proceeding and is imperative to the management of cases
- There was a lack of data to indicate whether the committals process was working positively or negatively
- 27 Submissions were made to the VLRC regarding Committals
- DPP and Victoria Police supported the removal of committals
- Whilst the Magistrates’ Court expressed their firm view that the current committal system should be maintained, citing it provides “substantial benefits”
- The Commission favoured the existing system, essentially for two reasons. One: the present system is known and working; and two: the cost of change is likely to be significant
Recommendations
- Abolish the test for committal and its replacement with the power of the Magistrates’ Court to discharge an accused
- When matters fall within the jurisdiction of the Supreme Court, the pre-trial procedures should be dealt with by the Supreme Court from the start
- Experienced practitioners should be engaged at an early stage in proceedings and have continuing responsibility for the case until trial or resolution
- Better protections to reduce trauma for victims and witnesses
Royal Commissions - Management of Police Informants (2018)
- Victorian Governor, Linda Dessau, established this Royal Commission on the advice of the Victorian Government
- It was established to generally investigate and report on the recruitment and management of police informants who are subject to legal obligations of confidentiality or privilege by Victoria Police
Why was it established? - Legal practitioners have a legal obligation and privilege to their clients (not permitted to disclose or reveal information that may harm their clients)
- Ms Nicola Gobbo (Lawyer X) was used as a police informant for Victoria Police between January 1995 and January 2009
- She represented a number of convicted criminals but was used as a police informant, meaning she secretly provided some information about some of her clients to Victoria Police whilst representing them
- This meant that the outcomes of several cases were likely affected (eg. offenders being found guilty based on inadmissible evidence) and this could lead to the overturning of these convictions
Terms of Reference - Royal commission was to investigate:
Number of times and extent to which the conduct of criminal defence barrister Nicola Gobbo, in becoming a police informant for Victoria Police between January 1995 and January 2009, affected the outcome of criminal cases during that period
Conduct of current and former police in disclosing their use of Ms Gobbo as a police informant
Effectiveness of the processes in place at Victoria Police governing how people who are subject to legal obligations of confidentiality or privilege (such as lawyers who become police informants) are recruited and managed
Whether the police should recruit and use people who are subject to legal privilege during investigations of criminal cases and, if so, how the use of these people might be best managed - Make recommendations to Victoria Police and the Government to address any problems regarding use and management of people subject to legal obligations of confidentiality or privilege
Discovery - Initial budget of $28 million, approx. two years to prepare final report, completed in November 2020
- Over 130 submissions, from individuals and organisations (eg. Victoria Police)
- Royal Commission discovered many faults in Victoria Police’s police informant processes and the criminal justice system
- Former and current commissioners were exposed as authorising recruitment whilst aware of implications
- Led to the review of more than 20 cases in which convictions may have been obtained as a result of Ms Gobbo’s role as a police informant (eg. Faruk Orman who was sentenced to 20 years for murder has his conviction overturned on the basis that the evidence presented at his trial was ‘tainted’ evidence due to Ms Gobbo, his defence lawyer, being a police informant)
Representative Nature of Parliament - Example
Eg. Creation and repeal of the ‘Medevac Bill’
- Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018 (Cth) amended to allow asylum seekers held in offshore detention to temporarily be transferred to Australia if two doctors agreed that they needed medical attention
- Done after initial bill in lower house failed to progress, so independents and the Greens amended a bill being heard in the Senate
- Bill passed the hostile senate and then the house of representatives after the liberal-national coalition lost their majority, due to two resignations
- Liberal-national coalition vowed to repeal the bill is it were re-elected in 2019
- Successfully repealed after passing Senate with support of independent Jacqui lambie (who initially supported the ‘Medevac Bill) after claiming negotiations genuinely involved a matter of ‘national security concern
