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Common Law Division update
15 February 2017
The Common Law Division of the Supreme Court plays an important role in adjudicating claims brought by individuals for redress against various branches of government. Some of these claims involve the review of or appeal from government decisions that adversely affect a person’s rights or interests. Other claims involve individuals seeking compensation for harm caused by alleged failures by government to fulfil its duties of care or other statutory obligations. In both kinds of case, the Supreme Court’s role is to ensure that government and its agencies act in accordance with the law. Some of these cases receive significant public attention through the media. In a recent Court of Appeal judgment, the Court noted that the Court’s role is not to engage in political questions or policy-making but that:
The function of judicial review is to ensure that Government operates according to law, that powers conferred on Ministers and public officials by statute are exercised within the legal limits fixed by Parliament … It is one of the foundations of our democratic society that the courts perform this supervisory role, and do so independently of Government and immune from political pressure. This is one of the guarantees of the rule of law. (Minister for Families and Children v Certain Children by their Litigation Guardian Sister Marie Brigid Arthur  VSCA 343 at 12-13)
Important cases decided in 2016 in the Common Law Division in this area included:
- Glass v President of the Legislative Council  VSC 507: On an application by the Victorian State Ombudsman, the Court determined that the Ombudsman had jurisdiction to investigate allegations of misuse of parliamentarians’ budget entitlements referred to her by the Legislative Council. This decision was upheld on appeal to the Court of Appeal ( VSCA 306) and is significant for its clarification of the scope of the Ombudsman’s jurisdiction.
- Nikolic v Chief Commissioner of Police  VSC 143: The applicant sought judicial review of an “exclusion order” made by the Chief Commissioner which prohibited the applicant from entering or remaining at various racecourses during race meetings. The Court held that the exclusion order was invalid on the grounds that the applicant had been denied procedural fairness in that he had not been provided with sufficient details of the allegations against him that formed the basis for the exclusion order. The case was significant in its consideration of the extent to which sensitive police information must be disclosed to the subject of an exclusion order. (This decision was later overturned on appeal:  VSCA 248.)
- O’Sullivan v Andrews  VSC 560: The Court refused an application for orders requiring the Premier to advise the Governor to summon a joint sitting of the Victorian Parliament for the purpose of filling a casual vacancy in the Legislative Council pursuant to s 27A of the Constitution Act 1975. The Court held that such an application disclosed no justiciable controversy between the parties as the case concerned the internal workings of the Parliament. The case is significant for its analysis of the relationship between the judicial and other branches of government.
- Certain Children by their Litigation Guardian Sister Marie Brigid Arthur v Minister for Families and Children  VSC 796: The Court held that two Orders in Council made under the Children Youth and Families Act 2005 concerning the establishment of a youth justice centre at the Grevillea unit of the Barwon Prison were unlawful under s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 as the defendants failed to give proper consideration to the human rights of the plaintiffs. An appeal from this decision was dismissed:  VSCA 343. A new proceeding in relation to the detention of juveniles at Barwon Prison was brought in early February 2017.
In 2017 the Common Law Division is scheduled to hear a number of cases involving the rights of individuals vis-à-vis government. For example, Secretary to the Department of Justice and Regulation v DXP and PQR v Secretary to the Department of Justice and Regulation are both cases involving applications for Working With Children Checks. In these cases, the Court will consider whether the law relating to the issue of such Checks has been correctly applied.
In addition, the Common Law Division is managing a number of cases involving the duties of government to individuals in its care. AS v Minister for Immigration and Border Protection and Kamasee v Commonwealth of Australia are class actions brought by detainees at the Christmas Island and Manus Island immigration detention centres, respectively. Both actions are set down for trial in 2017. While these cases concern claims for compensation for injuries suffered or exacerbated while in detention, they also raise questions about the extent of the duty of care owed by the Commonwealth Government and its agents to immigration detainees. In particular, in AS the Court will be asked to consider whether minors are owed any special duties of care.