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Australian Journal of Administrative Law
Volume 18, Number 1, November 2010
State Chief Justices as Lieutenant Governors: Federal Jurisdiction
Fair hearing obligations
Determining separate questions
Saeed v Minister for Immigration and Citizenship
WORK AND EMPLOYMENT
Natural justice in dismissals?
Graeme Orr and Joo-Cheong Tham
Consumer satisfaction: Case study from an Australian guardianship jurisdiction
Adrian F Ashman and Ron Joachim
The present study reports a user satisfaction survey in an Australian guardianship and administration jurisdiction. Two surveys were distributed to participants who attended Tribunal hearings over a 12-month period, the first immediately following the hearing and the second, six months later. The first survey involved 727 respondents (a 32.4% response rate) and for the second survey, 308 of those who agreed to participate (a 66.2% response rate). Participants were very positive about the Tribunal's processes with over 76% reporting that the Tribunal's decisions had been in the best interest of the adult for whom the hearing was held. Respondents appeared to distinguish between their own satisfaction/dissatisfaction with the Tribunal's decision(s), and the decision(s) being in the adult's best interest. The discussion considers issues the importance of procedural fairness and satisfaction with the appointment of statutory bodies (ie, Public Trustee, Adult Guardian) versus private appointees (eg, family, friends).
Kable, K-Generation, Kirk and Totani: Validation of criminal intelligence at the expense of natural justice in Ch III courts
Steven Churches and Sue Milne
Material placed before a court as "criminal intelligence" is prima facie protected from disclosure to the party affected. The reality of procedural fairness has been sacrificed by the High Court's generous construction of statutory provisions concerning the control and disclosure of criminal intelligence, and that Court's explanation that the classification of material as criminal intelligence was reviewable by a court, thus avoiding Kable unconstitutionality. But in the 12 months since that approach to criminal intelligence was adopted in K-Generation, the High Court has shown greater concern for the constitutional requirement of natural justice in Ch III courts, and has dismantled the edifice of State legislative privative clauses. Kirk on the latter is relevant to the fate of criminal intelligence, as the High Court is shortly to hear an appeal from the South Australian Supreme Court (Totani). (The High Court decision in Totani has now come down, (South Australia v Totani  HCA 39), but production requirements do not allow alteration of this article to deal with the High Court reasoning, which is greatly at variance with the Full Court, although agreeing in the result. The authors will provide an update of this article in the light of the High Court decision at the soonest possible available time in the production process.) The Full Court of the South Australian Supreme Court found the use of criminal intelligence to be unconstitutional. The privative clause in the statute in question prevented the review of classification which had been relied on in K-Generation (where no privative clause was in issue), but the Supreme Court decision has been overtaken by Kirk destroying the efficacy of privative clauses. The authors are concerned as tο the reasoning whereby "criminal intelligence" may be set for further constitutional validation.
Implementing targeted sanctions in Australia: A role for procedural fairness
The Security Council may adopt economic measures targeted at specific individuals or entities. However, concerns have been expressed that their application must be accompanied by "fair and clear" procedures including procedural fairness protections for those appearing on sanctions lists. In Australia, United Nations sanctions are implemented through proscriptive powers under the Charter of the United Nations Act 1945 (Cth) against individuals or entities designated by either the Security Council or Australia. This article argues in favour of an obligation upon the relevant Minister to accord procedural fairness when exercising proscriptive powers against individuals or entities in respect of Security Council decisions which Australia is obliged to carry out. This obligation is strongest where Australia, instead of the Security Council, is responsible for designation or assessing delisting applications. The range of procedural fairness protections will be discerned from the legislative framework by Australian courts during administrative review proceedings challenging inclusion on sanctions lists and the application of asset freezes.