Law and Government Decision Making

Weighting: Submission method:
Monday 19 March (Week 5)
1200 to 1400 words
(not counting footnotes and bibliography)
Electronic copy only
Assessment criteria
Your answer to this question will be marked according to the following criteria. The marker will be ascertaining whether you have:
identified and clearly stated the relevant issues;
applied relevant legal principles to the resolution of these issues;
integrated and evaluated relevant knowledge from the material covered in this unit;
developed and sustained a concise and convincing legal argument through to a logical conclusion;
answered the specific question asked in a clear and concise manner; and
demonstrated academic integrity in the work submitted.
In Australia, at the federal level, the Constitution (as interpreted by the High Court) requires that courts and tribunals be kept strictly separate from each other. So, for example, a court can only nullify a decision that is made in an unlawful manner, leaving a legal void: it cannot substitute the best decision to fill the gap. On the other hand, a tribunal can only make a provisional working guess as to whether its actions are lawful. It may adopt a correct or preferable decision that the courts later hold to be unlawful “ or may prematurely exclude a lawful option from consideration in the mistaken belief that it is unlawful.
In other similar jurisdictions (UK, NZ and the Australian States), this distinction is not constitutionally entrenched, so that Parliaments are free to give courts non-judicial powers, or to give tribunals judicial powers, or to set up hybrid bodies.
Would this be preferable to the Australian federal position after Brandy?1
Select at least two (2) tribunals, from one or more other common law jurisdictions (ie, not Australia at the federal level) as examples to support your conclusion and your reasoning.
1 Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245, 127 ALR 1. Note that AustLII lists this alphabetically under H , as Harry Brandy .

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