Victorian Civil and Administrative Tribunal Act Assignment Sample

• Subject Name : General Law

Immigration and Multicultural Affairs

R1. The Doctrine of precedent is an English Doctrine. According to this doctrine, lower courts are bound by the decisions of higher courts. Therefore in Australia, the decision of the Supreme Court is binding upon the trial courts. It also states that the court should apply the rulings of the previous judgments if facts are similar. The decision of the court in the same hierarchy is persuasive. The logic of this principle is to maintain certainty. It is expressed in the doctrine “stare decisis et non-quiet a more “which means to remain with the earlier decision of the court and not to change what is already decided. If a judgement is binding then the principle needs to be applied but if the decision is persuasive the principle may be applied based on its discretion. 

The hierarchy of the courts in Victoria: The High Court of Australia is highest, below it comes the Supreme Court of Victoria. Below Supreme Court of Victoria, there is County Court of Victoria. Below the County Court of Victoria, magistrate's court of Victoria is there. The other courts include the Children's Court, Coroners Court, and the Victorian Civil and Administrative Tribunal.[1]

Strengths of law made by courts

The courts make the law instantly if the case comes to the court for decision. They don’t face the issue of a lengthy procedure. They can amend the laws only if the case has come to them. Court are independent, unlike legislature. Unlike Parliament, the courts are not considered to have any political connection or influence thus they act independently of the influence of electorates.

The weakness of law made by Courts

However, considering that they are not elected so they do not make a judgment based on current community values. However, they can only change the law if someone approaches them with a case. Court's may also require to follow precedent thus making it difficult for them to change the law.

R2. Victorian Civil and Administrative Tribunal is formed by the Victorian Civil and Administrative Tribunal Act 1998. The objective of the Victoria Civil and Administrative Tribunal is to achieve dispute resolution. It aims to provide low-cost, accessible, and efficient tribunal. Victorian Civil and Administrative Tribunal has three division Civil, administrative, and human rights, divisions. The civil division decides civil disputes that contain consumer issues, legal services, owners corporation matters, residential and retail tenancies disputes, sale and ownership of real property. The administrative division determines applications from people seeking review of government decisions such as local council land valuations and planning permits, state taxation, business licenses and professional registrations, and Worksafe assessments. The human rights division assists with matters that relate to guardianship, discrimination, racial and religious vilification, health and information privacy, decisions made by the Mental Health Review Board, and matters under the Disability Act 2006.[2] 

 Victorian Civil and Administrative Tribunal unlike the court of records is not bound by rules of evidence or any other practices or processes. It will only be bound by the processes that they have specifically adopted. It is required to conduct proceedings with a minimum amount of formalities and technicalities. Whereas in courts a lot of formalities need to be followed. It must determine each case as fast as possible according to the requirement of the act. Whereas in the case of courts time is taken for each case due to lengthy procedures. The tribunal can accept the evidence put before it earlier or it can also accept the matter put before the tribunal in other proceedings. Whereas in the case of courts it is not possible. The tribunal can regulate its procedure. Based on the application of the party the tribunal can be reconstituted. Courts can’t be reconstituted based on the application of the party.[3] 

R3. Neighbourhood Justice System is multijurisdictional. It is the venue for Magistrate's court and Children's court. It also includes two tribunals that are the Victorian Civil and Administrative Tribunal and Victims of Crime Assistance Tribunal. There is a partnership with the local community to give them a voice in the making of the justice system. A lot of people coming before this court face severe issues such as mental health issues, substance abuse, homelessness, and family violence. The goal of the Neighbourhood Justice System is to increase the participation of the public in the justice system. It involves Neighbourhood Justice System, Collingwood approaching other agencies in the Collingwood. It includes the public using the services of the Neighbourhood Justice System, Collingwood. The purpose of the establishment of the Neighbourhood Justice System, Collingwood is to tackle increasing drug usage by the people of the community and increasing crime related to the usage of drugs. Diversion programs are run to rehabilitate criminal offenders.

 It usages Enforcement review program under which a person who suffers from mental illness, the person is addicted to drugs or alcohol, the person is homeless or the person is a victim of domestic violence. But it has to be shown that the reason for committing the crime was related to the special circumstance the person is facing. Court Referral & Evaluation for Drug Treatment Program is another program where the drug-addicted offender is referred to because there is a high tendency among them to commit a criminal activity again. Bail Support Programme Is available to accused who are on bail, it aims to ensure that the person does not commit a crime again. A case plan will be created and a manager will be appointed for such person. The program is usually for months. The accused person is required to appear before magistrate every month so that the progress of the accused can be checked by the magistrate. Aboriginal Liaison Officer Program is run by the Neighbourhood justice System, Collingwood. This program is aimed to create trust between the Victorian Police and the aboriginal community. The Neighbourhood Justice system offers services such as client services, victim referral program, mediation, community correction services, etc.[4]

R4. According to the principle of natural justice or procedural Fairness, no man should be judged without being heard. In Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (Lam)[5] it has been observed that even during ancient times the Greeks made their decision based on the principle that no man should be judged without being heard. The two basic law that court requires to follow is that no one should be judged without being heard and that there should not be bias in a case. Bias can arise in a case if the case is decided by a relative of any party to the case. The bias of these kinds should be avoided. Procedural fairness means acting fairly in the administrative process. It deals with the fairness of the procedures. The court must provide procedural fairness. It has been provided if nothing is mentioned in law contrary to the principle of procedural fairness. But the decision in Saeed v Minister for Immigration and Citizenship[6] the court held that procedural fairness is protected by the principle of legality. Thus excluding procedural fairness is very difficult. Court has found that procedural fairness can be excluded when it would become inconsistent with any statutory provision. There is a duty to ensure procedural fairness but the content that how to achieve procedural fairness is not fixed. A fair hearing will require that the following conditions are fulfilled. Prior notice should be given, critical issues should be disclosed and the opportunity should be given to present a case. The Australian Constitution does not stop the parliament from changing the principle of natural justice in cases of non-judicial decisions. However where procedural fairness is denied it would be considered as a decision made beyond its jurisdiction. In such cases, s 75(v) of the Constitution will apply. International Covenant on Civil and Political Rights states that everyone is equal and everyone irrespective of who they are a fair procedure will be conducted. In cases regarding international law impartial hearing will be conducted. People argue that no reason is there to exclude procedural fairness. The proportionality test is suggested to determine whether the law that does not include procedural fairness is justified. Where it is required to attain lawful policy objectives, there is no other way to achieve those objectives, and when the laws are appropriate. To achieve urgent decisions procedural fairness can be excluded. It is also excluded to remove delaying of the process of getting justice. Procedural fairness is excluded in the below-mentioned rules. In the provision of the Corporation Act 2001 (Cth.), procedural fairness is excluded. The Australian Securities and Investment Commission considered the exclusion of procedural fairness as an exception and not as a rule. The Australian Securities and Investment Commission has the power to issue interim stop orders without hearing if it would be considered to do so in the interest of the public. Similarly in migration law to concern has been raised that procedural fairness is not followed in certain cases such as the decision to cancel a visa or refuse to give a visa and fast track process to deny protection visas.[7] Principle of natural justice is important as it gives everyone an opportunity of being heard but there are exceptions to it.

R5. The jury is made up of a cross-section of a community. Citizens are brought together to decide whether someone is guilty or not guilty of a crime. Everyone on the electoral roll is eligible to receive the summons. All jurors have sworn an oath to decide the case based on the evidence of the case. In a criminal case, jurors must decide whether the prosecution has proved the case beyond a reasonable doubt. The decision is made by the juror based on arguments by prosecution and defence. Judge directs the jury on relevant law and jurors are supposed to follow judges' direction at all the time. Jurors should keep an open mind. At some stage jury, must choose its representative or foreperson. The foreperson will be sitting in the front row near the judge. It is the foreperson who will deliver the verdict at the end of the trial on behalf of the jury. Other than this all the jurors will have an equal role. In the beginning, the prosecutor will give the jury outline of the case. In a criminal trial, it is the jury who needs to decide the facts of the case they are the judges of the facts. While deliberating they have to decide what evidence they accept and what evidence they don't accept. The judge is the judge of the law he will tell the jury the relevant law they have to apply to the case.

The current jury system in Australia need not be changed. Prima facie it might appear that qualified persons such as lawyers, barrister, or judges should be made to do jury duty. But qualified person such as lawyer, barrister, and judges doesn't need to be made jurors. Firstly there are around 76000 practisings in Australia. Thus considering that number of lawyers is less. So, if only lawyers are called jurors then it will become hectic for them. As the number of appearances that they have to make as jurors will be high. Thus affecting their personal and professional life. It is also observed that the duty of jurors in a criminal case is to decide whether a person is guilty or not for that they just have to decide on the facts. As far as a matter of law is considered the judge is there to guide them on it. Thus it is can be observed that a lawyer, barrister, or judge is not required to do jury duty and it can be done by the normal citizen.[8]

References for Victorian Civil and Administrative Tribunal Act

Cases

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (Lam) (2003) 214 CLR 1

Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252.

Legislation

Victorian Civil and Administrative Tribunal Act. 1998

Websites

Information About Jury Service available at https://www.fedcourt.gov.au/going-to-court/jury

Procedural Fairness available at https://www.alrc.gov.au/wp-content/uploads/2019/08/fr_129ch_14._procedural_fairness.pdf

Victorian Court Hierarchy available at https://www.lawlibrary.vic.gov.au/understanding-law/courts/victorian-court-hierarchy

Victorian Civil and Administrative Tribunal available at https://www.gotocourt.com.au/legal-news/vcat/#:~:text=The%20purpose%20of%20the%20Victorian,accident%20claims%20or%20fencing%20dispu

Victoria’s Neighbourhood Justice Centre (2009) available at https://www.indigenousjustice.gov.au/wp-content/uploads/mp/files/publications/files/initiative001.v1.pdf

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