Disputes With the State (HSC SSCE Legal Studies): Revision Notes
Disputes With the State
Introduction
When citizens disagree with government decisions or policies, they have various options to challenge state power. These methods fall into two main categories: non-legal (informal) methods and legal (formal) methods. Understanding these avenues is essential for protecting individual rights and ensuring government accountability.
The distinction between non-legal and legal methods is fundamental. Non-legal methods are generally more accessible but offer no guaranteed outcomes, while legal methods follow formal procedures and can produce enforceable results, though they may require more resources and expertise.
Non-legal methods of challenging state power
Non-legal methods provide accessible ways for citizens to voice concerns without engaging formal legal processes. While they may not guarantee outcomes, they can be highly effective in influencing government decisions.
The media
Media outlets serve as powerful tools for challenging government decisions. Citizens can write letters, send emails, call radio stations, or post on social media to inform the community about decisions they consider unfair or unjust. Major news networks often amplify these concerns, potentially forcing government policy reversals.
Case Example: Media Pressure and Migrant Detention
In August , children were released from migrant detention centres following sustained media pressure. The Commonwealth Department of Immigration and Multicultural Affairs acknowledged it had "softened" its stance on immigrant detention after widespread media coverage and public outcry.
This demonstrates how sustained media attention can force government agencies to reconsider and reverse controversial policies.
The internet has expanded media influence significantly. Websites like Whistleblowers Australia use platforms such as Facebook to share information about corrupt, unfair or illegal behaviour by individuals, companies or government organisations. The organisation's stated goal is to promote a society where people can speak out about corruption and public dangers without facing reprisal.
Evaluating Media Campaign Effectiveness
When analysing the effectiveness of media campaigns, consider both their accessibility (anyone can participate) and their limitations (no guaranteed outcomes, dependent on public interest).
Members of Parliament
Members of Parliament (MPs) are elected representatives who serve specific geographic areas called electorates. All citizens within an electorate can contact their MP to discuss issues of concern. MPs may then raise these issues in parliament, potentially influencing government policy.
MPs are particularly responsive when issues significantly affect their constituents. For example, if the Pacific Highway between Sydney and Brisbane were to be widened, MPs representing towns along the highway would likely advocate strongly for their constituents' interests, as these residents face direct impacts from the decision.
Case Example: Electoral Accountability - The Bennelong Seat
Former Prime Minister John Howard lost his federal seat of Bennelong in the election to Maxine McKew, partly because voters felt he was not adequately addressing local electorate issues. McKew's campaign focused specifically on constituency concerns.
The seat later changed hands again in when John Alexander won it, demonstrating how responsive MPs must be to local concerns to maintain their positions. This case illustrates the power of electoral accountability in ensuring MPs remain attentive to constituent needs.
Citizens can also contact federal or state MPs, or local councillors, when they feel wronged by government departments or agencies. MPs and councillors often help resolve disputes informally, preventing the need for court or tribunal proceedings. Since these representatives rely on re-election, they have strong incentives to help constituents resolve disputes quickly.
Trade unions
Trade unions are organised groups of workers within specific industries who unite to protect employment rights and working conditions. Unions negotiate workplace agreements covering workplace safety, wages and conditions, and take action when employers propose detrimental changes to work conditions.
Australia's legislative approach to industrial relations has historically emphasised conciliation and arbitration, making strikes a last resort rather than a first response.
Historical Case Example: The Green Bans Movement
In the early s, the Builders Labourers Federation implemented "green bans" by refusing to work on sites where heritage buildings faced demolition for property development. These bans successfully preserved:
- A small park in Hunters Hill
- Terrace houses in Victoria Street, Potts Point
- The historic Rocks area of Sydney
This demonstrates how collective worker action can protect cultural heritage and influence development policy beyond workplace issues.
Recent Example: ACTU and Free Trade Concerns
The Australian Council of Trade Unions (ACTU) campaigned against Australia's Free Trade agreement with China in , expressing concerns about potential job losses for Australians and the possibility of overseas workers receiving lower wages for work in Australia.
This illustrates how unions continue to engage with broader economic policy issues affecting workers.
Interest groups and non-government organisations
Interest groups form when people share political values, aims or specific goals, including challenging state decisions. Members can participate in various activities or donate funds to support the organisation's work.
Case Example: GetUp! Action for Australia
GetUp! Action for Australia is an independent, grass-roots community advocacy organisation with members connected through email, Facebook and Twitter. According to its website, GetUp! aims to "build a more progressive Australia by giving everyday Australians the opportunity to get involved and hold politicians accountable on important issues."
GetUp! actively campaigned against Woolworths' ownership of poker machines in Australia, advocating for regulations to prevent people from losing large amounts of money through gambling.
This case demonstrates how modern technology enables large-scale citizen mobilisation around specific issues.
Evaluating Non-Legal Methods
When evaluating non-legal methods, consider factors such as:
- Accessibility to ordinary citizens
- Cost-effectiveness
- Public awareness raised
- The likelihood of achieving concrete outcomes
Non-legal methods may be more effective when combined or when they generate sufficient public pressure to force government response.
Legal methods of challenging power
Legal methods provide formal mechanisms with defined procedures and enforceable outcomes for challenging government decisions and actions.
Internal reviews
Internal reviews occur when government departments review their own decisions, procedures or behaviour. While highly cost-effective, internal reviews can be ineffective if the people conducting the review were involved in the original decision being questioned.
Freedom of Information (FOI) Legislation
Freedom of information (FOI) legislation supports internal reviews by giving citizens the right to request access to information about government decision-making and information the government holds. FOI legislation also allows citizens to:
- Request changes to inaccurate, incomplete or outdated personal records
- Seek review of decisions denying access to information
- Seek review of decisions refusing to amend records
Case Example: Combined Pensioners and Superannuants Association of NSW (CPSA)
When a booking fee for country train fares was introduced in , CPSA applied to RailCorp (the state-owned passenger rail system) to access documents related to community consultation. The Minister for Transport claimed there had been "extensive consultation" showing "overwhelming community support" for the booking fee, which eliminated pensioners' entitlement to four free rail trips per year.
CPSA made its application under the Freedom of Information Act 1989 (NSW), which has since been replaced by the Government Information (Public Access) Act 2009 (NSW). When the application was denied, CPSA requested an internal review.
Outcome: The review found there had been no community consultation about the booking fee, contradicting the Minister's claims.
Significance: This example demonstrates both the value and limitations of internal reviews—while the review revealed the truth, it required persistence and legal knowledge to obtain.
External reviews
External reviews involve independent bodies or organisations examining government activities and decisions. Several avenues exist for pursuing external reviews.
Administrative and other tribunals
Administrative tribunals are bodies that review specific administrative decisions made by government agencies. They offer time-efficient, low-cost means of resolving legal disputes and differ from courts in several important ways:
- Narrow areas of jurisdiction (specific topic areas)
- Less formal procedures
- Usually do not allow legal representation
- Not bound by strict rules of evidence
- Can consider various factors in finding solutions
NSW Civil and Administrative Tribunal (NCAT)
The NSW Civil and Administrative Tribunal (NCAT) was established on January , combining the roles of previously separate tribunals. NCAT has four main divisions:
- Administrative and Equal Opportunity Division
- Consumer and Commercial Division
- Guardianship Division
- Occupational Division
The NSW Administrative Decisions Tribunal has six divisions and an appeal panel that conduct reviews of government agency decisions in categories including:
- Community services sector decisions (child care, disability services)
- Decisions of the Chief Commissioner of State Revenue (state taxation matters)
- Professional conduct of legal practitioners and conveyancers (people who deal professionally with property transfer legal matters)
- Equal opportunity claims referred by the Anti-Discrimination Board
- Retail tenancy and unconscionable conduct claims against retail landlords
- General Division: decisions of government agencies under various laws (commonly access to government information, privacy, and licensing matters for firearms, passenger transport and security building industries)
Analysing Tribunal Effectiveness
When analysing tribunal effectiveness, consider:
- Advantages: accessibility, cost, speed, specialist expertise
- Limitations: narrow jurisdiction, lack of enforcement powers in some cases
Privacy bodies
All individuals have a right to privacy. Laws at both state and federal levels prevent unauthorised release of personal information to companies, government departments or other citizens.
Federal level: The Privacy Act 1988 (Cth) allows people to complain if they believe a Commonwealth Government or private organisation has mishandled their personal information, including health information. The Act establishes legal responsibilities for government departments regarding collection and storage of personal information.
Case Example: Spent Convictions
The Criminal Records Act 1991 (NSW) provides that after a person has been crime-free for a certain period, most minor offences are treated as "spent" convictions. Once a conviction is spent:
- The person does not have to disclose it to employers, insurance agents, banks, etc.
- Unauthorised release of information about spent convictions is subject to penalties
This protection balances rehabilitation with privacy rights, allowing individuals to move forward after serving their time.
NSW state level: The chief Acts protecting privacy are:
- Privacy and Personal Information Protection Act 1998 (NSW)
- Health Records and Information Privacy Act 2002 (NSW)
Privacy NSW was established under state privacy legislation to help people protect their privacy. Persons who feel their personal information has been misused may either request an internal review or complain to Privacy NSW.
The courts and judicial review
Law courts at both state and federal levels have power to review administrative decisions and actions through a process called judicial review.
Understanding Judicial Review
Judicial review is a process where a court with relevant jurisdiction reviews whether a government department's decision was lawfully made.
Critical distinction: Judicial review does not assess the merits of the decision (whether it was a good or appropriate decision), only whether proper legal procedures were followed.
Requirements for lawful decisions:
- Natural justice: The affected person must have had an opportunity to be heard, and the decision must be unbiased
- Proper authorisation: The decision must be authorised by the Act under which it was made and based only on relevant considerations
- Jurisdiction: The decision-maker must have had jurisdiction (legal authority) to make the decision
- Evidence: The decision must be justified by appropriate evidence
- Procedural compliance: All procedures required by law must have been observed, with no errors of law
Standing Requirements
A person seeking judicial review must have standing—they must be directly affected by the issue. This requirement prevents excessive costs from judicial reviews initiated by interested parties who are not directly affected.
Judicial remedies:
If a judicial review finds a decision flawed, courts can issue various remedies depending on the nature of the error:
- Prohibition: An order stopping a decision from being made or implemented
- Certiorari: An order reversing a decision already made
- Mandamus: An order compelling the decision-maker to perform certain public duties not yet performed
- Injunction: An order prohibiting implementation of an invalid decision, or compelling performance of a duty where mandamus is unavailable
Key Distinction in Judicial Review
When analysing judicial review, distinguish between reviewing the lawfulness of a decision (which courts can do) and reviewing the merits or wisdom of a decision (which courts cannot do through judicial review).
The Office of the Ombudsman
The term "Ombudsman" originates from Sweden, where the Justitieombudsmannen was created by the Swedish Parliament in . The term loosely translates as "citizens' defender" or "representative of the people." New South Wales established its Office of the Ombudsman by statute in , with a federal Ombudsman created in .
Powers and functions:
The Ombudsman acts as a formal external control with legal power to investigate complaints made by citizens against:
- Public sector agencies
- Some private sector agencies providing public services (e.g., RailCorp, Junee Correctional Centre, government and non-government schools, child care and residential care agencies)
Important Limitation of the Ombudsman
The Ombudsman cannot impose punishment or fines on government agencies or departments. However, the Ombudsman can:
- Make recommendations to the department in question
- Report to the NSW Parliament
- Investigate complaints and assess whether they are justified
Main areas of complaint:
- Delivery of community services
- Child abuse and neglect
- Operation of the police force
Complaint process:
- Any citizen can make a complaint, but it must be in writing
- All complaints are taken seriously
- Complaints are only investigated if a prima facie case exists (the complaint would raise concern "on first view")
- Prima facie cases require witnesses or strong, irrefutable evidence
- If a complaint is justified after investigation, the Ombudsman makes recommendations for rectifying the problem
Case Example: Domestic Violence and Child Deaths
In June , NSW Ombudsman Bruce Barbour released findings showing children died from domestic violence abuse over a -year period (–), with three-quarters of victims aged five years or under.
Key findings:
- Police identified people as responsible or persons of interest
- More than half were birth parents
- Intimate partners of the birth mother (particularly new male partners) were persons of interest in one-third of cases
- Well over half of persons of interest were already known to police as domestic violence perpetrators
Recommendations: Barbour called for police and child protection staff to work more closely, including "swifter exchange of information" between police and child protection databases.
Significance: This case demonstrates the Ombudsman's investigative and recommendatory role, but also shows the office cannot directly enforce changes—it must rely on departments to implement recommendations.
NSW statutory bodies
Statutory bodies are authorities created by statute (legislation) for a public purpose. These bodies can investigate complaints and disputes of specific types.
Anti-Discrimination Board of NSW (ADB)
The ADB is part of the NSW Attorney-General's Department and was established under the Anti-Discrimination Act 1977 (NSW).
Functions:
- Promote principles and policies of equal opportunity throughout NSW
- Ensure people are protected from discrimination based on characteristics such as disability, age, race and sex
- Advise the government on discrimination issues
- Provide an inquiry service informing people about their rights and responsibilities under anti-discrimination laws
- Investigate and conciliate complaints when necessary
- Issue fines for behaviour violating anti-discrimination laws
The ADB protects people from discrimination based on characteristics including disability, age, race, sex and other attributes specified in legislation.
Commissions of inquiry
Commissions of inquiry are established to investigate serious matters at both state and federal levels. They are fact-finding exercises, not judicial proceedings.
Royal Commissions are commissions of inquiry with particularly strong powers regarding calling witnesses. Past inquiries have investigated:
- Aboriginal deaths in custody (Commonwealth, )
- Corruption in the NSW Police Service (NSW, )
- Institutional Responses to Child Sexual Abuse (Commonwealth, )
Critical Limitation of Commissions of Inquiry
Commissions of inquiry cannot prosecute offenders. At the conclusion of an inquiry, the commission produces a report containing recommendations, which may include recommending criminal prosecution of individuals. The government may choose to act on these recommendations.
Case Example: Impact of Royal Commissions
Several police officers were imprisoned following the NSW Royal Commission into police corruption, demonstrating how recommendations can lead to successful prosecutions.
However, the inquiry into Aboriginal deaths in custody has been criticised for failing to produce significant improvements in the conditions leading to these deaths, illustrating that commissions' effectiveness depends on government implementation of recommendations.
Independent Commission Against Corruption (ICAC)
The Independent Commission Against Corruption (ICAC) has greater investigative powers than the Ombudsman. The Independent Commission Against Corruption Act 1988 (NSW) created ICAC as an independent statutory body to investigate alleged corruption in government.
Functions:
- Protect public interests
- Prevent breaches of public trust
- Influence the behaviour of public officials
Examples of corrupt behaviour: Bribery, fraud, theft, and other misconduct. ICAC can investigate private citizens' activities if such behaviour affects the proper administration of public offices.
Powers:
- Request police assistance in investigations
- Search for and seize evidence
- Conduct hearings and compel witnesses to testify
ICAC's Limitations
- ICAC cannot prosecute offenders (this is the role of the Director of Public Prosecutions)
- At the conclusion of an investigation, ICAC can report to parliament that corrupt behaviour occurred, identify who committed it, and recommend further action
Appeal rights: Citizens who feel wrongfully accused of corruption can seek judicial review in the NSW Supreme Court.
Case Example: Eddie Obeid and Joe Tripodi
During , ICAC conducted a major investigation into NSW politicians and alleged corrupt conduct. Eddie Obeid and Joe Tripodi were found to be corrupt over dealings involving leases of cafes at Circular Quay in Sydney. Many other high-profile politicians, including Ministers of the Crown, were investigated for corrupt conduct, with proceedings extensively covered by major media outlets.
Further developments: In June , Eddie Obeid's wife Judith and two of the couple's five sons were called to give evidence in his criminal trial over alleged business dealings at Circular Quay.
Significance: This demonstrates how ICAC investigations can lead to criminal prosecutions, though ICAC itself cannot prosecute—it must rely on the Director of Public Prosecutions.
Evaluating ICAC's Effectiveness
When evaluating ICAC's effectiveness, consider:
- Its strong investigative powers and ability to compel testimony
- Its limitation in that it must rely on other bodies (police, Director of Public Prosecutions) to pursue criminal charges
- The role of natural justice in protecting accused individuals' rights through judicial review
National and international bodies
Some mechanisms for challenging state power operate at national or international levels, extending beyond individual state jurisdictions.
Australian Human Rights Commission (AHRC)
The Australian Human Rights Commission (AHRC) is a national government body under the Federal Attorney-General's responsibility. Previously called the Human Rights and Equal Opportunity Commission, it was established by the Human Rights and Equal Opportunity Commission Act 1986 (Cth), now renamed the Australian Human Rights Commission Act 1986 (Cth).
Functions:
- Provide information through public education programs aimed at community, government and business sectors
- Hold public inquiries
- Advise parliament
- Conduct research
- Investigate discrimination complaints
The Commission plays a key role in ensuring Australia remains a tolerant, equitable and democratic society.
The United Nations
The United Nations oversees several international treaties and declarations containing key human rights principles:
- International Covenant on Civil and Political Rights (ICCPR)
- International Covenant on Economic, Social and Cultural Rights (ICESCR)
- Convention on the Rights of the Child (CROC)
- Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
- Convention on the Elimination of All Forms of Racial Discrimination (CERD)
- Universal Declaration of Human Rights (UDHR) – the most widely known and longest standing (adopted )
UN Human Rights Bodies
The Human Rights Council (formerly Commission on Human Rights) includes state members who discuss and debate human rights concerns. Committees monitor each convention and can rule on individual complaints relating to specific conventions.
The UN Human Rights Committee rules on individual complaints pertaining only to the ICCPR. State signatories to the First Optional Protocol to the ICCPR have agreed their citizens can seek opinions from the Committee regarding ICCPR breaches.
Landmark Case: Toonen v Australia (1994)
Background: In , Tasmanian man Nicholas Toonen complained to the UN Human Rights Committee that sections of Tasmania's Criminal Code criminalised his sexual orientation. Toonen argued the Tasmanian legislation breached:
- Article (non-discrimination)
- Article (right to privacy)
- Article (equal treatment before the law)
Committee decision: The Human Rights Committee ruled the Tasmanian law violated individuals' privacy under Article and ordered Tasmania to amend its criminal code.
Australian government response: The federal government enacted the Human Rights (Sexual Conduct) Act 1994 (Cth) to override the offending sections of the Criminal Code 1924 (Tas). However, Tasmania resisted changing its laws.
Final outcome: A High Court decision (Croome v Tasmania [] HCA ) held that Tasmania's law was inconsistent with the Commonwealth Act, finally forcing an amendment to the Criminal Code.
Significance: This case demonstrates how international human rights mechanisms can influence domestic law, even though UN Committee decisions are not directly enforceable. The case required both international pressure and domestic court action to achieve the desired outcome.
Analysing International Bodies' Effectiveness
When analysing international bodies' effectiveness, consider:
- Their moral authority and ability to generate pressure
- They generally lack direct enforcement mechanisms
- Compliance often depends on domestic political will and court decisions
- International pressure can be effective when combined with domestic legal action
Remember!
Key Methods of Challenging State Power:
Non-legal methods:
- Media campaigns – Accessible but non-binding ways to generate public pressure
- Contacting MPs – Representatives can raise issues in parliament and help resolve disputes
- Trade unions – Collective action to protect workers' rights and influence policy
- Interest groups – Organized advocacy on specific issues
Internal reviews:
- Cost-effective but potentially biased
- FOI legislation supports transparency and access to government information
External reviews:
- Tribunals – Independent oversight with varying levels of formality and enforceability
- Privacy bodies – Protect personal information rights
- Courts and judicial review – Review lawfulness (not merits) of decisions; can issue binding remedies
Key oversight bodies:
- The Ombudsman – Investigates complaints and makes recommendations but cannot impose penalties
- ICAC – Investigates corruption with strong powers but cannot prosecute
- ADB – Addresses discrimination and promotes equal opportunity
- Commissions of inquiry – Fact-finding exercises that can recommend prosecution
International mechanisms:
- UN committees – Issue opinions that create moral and political pressure for change
- AHRC – National body promoting human rights through education and investigation
Key Terms to Remember:
- Freedom of information (FOI): Right to access government-held information
- Judicial review: Court review of whether a decision was lawfully made
- Standing: Direct connection to an issue required to seek judicial review
- Prima facie: "On first view"—preliminary evidence suggesting a complaint has merit
- Natural justice: Fair procedures including the right to be heard and unbiased decision-making
- Conveyancers: Professionals handling legal matters in property transfers
- Statutory bodies: Organisations created by legislation for public purposes
Judicial Remedies:
- Prohibition – Stops a decision from being made or implemented
- Certiorari – Reverses a decision already made
- Mandamus – Compels performance of public duties
- Injunction – Prohibits implementation or compels duty performance
Critical Evaluation Points:
When assessing effectiveness of dispute resolution mechanisms, consider:
- Accessibility to ordinary citizens
- Cost and resources required
- Level of formality and expertise needed
- Speed of resolution
- Enforceability of outcomes
- Independence from government influence