PIACBulletin16 - Public Interest Advocacy Centre

Litigation Report
Simon Moran, Principal Solicitor
The last 6 months have seen PIAC’s
litigation practice initiate a significant
number of cases in relation to the
rights of asylum seekers As discussed
in the habeas corpus article
earlier in the Bulletin, much of the focus
of this work is on the rights of asylumseekers
held in indefinite detention
Government Accountability
The case of refugee Simon Odihambo,
addresses the rights of minors when making
applications for refugee status Simon was
an unaccompanied minor when he arrived
in Australia, having stowed away on a boat
in Mombassa, Kenya Simon’s application
for refugee status was refused by both the
Minister for Immigration and by the
Refugee Review Tribunal (RRT) on review
His application to the High Court, which
seeks special leave to appeal the decision of
the Full Federal Court focuses on the need to
ensure that minors making applications for
refugee status be provided with
independent legal assistance before the RRT,
as opposed to the assistance of the Minister
for Immigration, who is deemed to be the
guardian of minors in detention John
Basten QC and Robert Lindsay are briefed
to appear before the High Court
A community organisation concerned with
high-rise developments, Save Our Suburbs
(SOS), sought registration as a political party
in time to participate in the 2003 State
Elections Although the application
complied with legislative requirements, the
State Electoral Commissioner elected not to
register SOS until they had complied with a
test set by the Commissioner Counsel
Jeremy Kirk, argued before Justice Burchett
of the Supreme Court that the test imposed
by the Commissioner was ultra vires and
sought an order of mandamus that the
Commissioner register the party on a date
before the cut-off date for registration for
the 2003 State election While determining
that the Commissioner’s policy was ultra
vires, Burchett J did not order the backdated
registration of SOS as the Commissioner
did not have power to backdate
registration The Commissioner decided
not to appeal the decision and Parliament
subsequently amended the Parliamentary
Electorates and Elections Act to validate the
Commissioner’s test, deem the registration
of SOS to have been on 1 March 2002 and
gave the Commissioner power to amend
the Register of Parties accordingly SOS can
now fully participate in the 2003 State
Elections
The rights of the child and the principles of
the Teoh case, were the key focus of a case
which challenged the cancellation of our
client’s permanent resident visa on the
grounds that he did not pass the character
test under the Migration Act given his
criminal record Mr Untan came to
Australia from Romania as a refugee 20
years ago and has an Australian wife and
three Australian children The cancellation
of his visa means that he will be deported
to Romania Mr Untan applied to the
Federal Court for a review of the decision to
cancel his visa arguing that the Minister
had failed to consider certain evidence
concerning the best interests of his children
and the interest of his wife as their
guardian Branson J found that there had
been a denial of procedural fairness to Mr
Untan’s wife (who represented the
childrens’ interests) however the privative
clause rendered the decision immune from
judicial review
Consumer Protection
In August 2002 the long-running problem
gambling test case Reynolds v Katoomba RSL
Club came to an end when the High Court
refused an application for special leave to
appeal The Court of Appeal rejected Mr
Reynold’s contention that the Club had
engaged in unconscionable conduct and it
breached its duty of care to Mr Reynolds by
cashing cheques for him when they knew he
was a problem gambler While the case has
been on foot a number of significant
legislative changes to the Registered Clubs Act
and the Liquor Act which protect the rights of
consumers
In November Coroner Milledge handed
down her findings in the coronial inquiry
into the death of Jessica Michalik at the Big
Day Out in 2001 The Coroner heard
extensive evidence during a five week
hearing at which Jessica’s father, Mr George
Michalik was represented by PIAC and
James Hmelnitsky of counsel The Coroner
found that the promoters of the BDO had
not assessed the safety risks to patrons and
that they were dependent upon a reactive
plan as ‘their pro-active approach was sadly
lacking’ She made ten recommendations,
“The Jessica Recommendations”, which
included the establishment of a working
party, auspiced by Workcover, to develop
industry standards for safety at rock festivals
and the establishment of a regulatory
authority for licensing events
Update
PIAC’s litigation continues to be involved a
number of discrimination actions, many of
which involve complaints of race
discrimination by indigenous clients Age
discrimination is the subject of two appeals
to the Full Federal Court in the matter of
Peacock v HREOC & the Commonwealth, in
which PIAC is acting for the complainant
who has alleged that age was a decisive
criterion applied when a public service
employer refused an award of discretionary
retirement provisions
Bassina Farbenblum has taken up a one year
position as a solicitor with PIAC Her
position is funded by the Public Justice
Project The objective of the Project is to
sponsor junior lawyers to undertake public
interest litigation The Project is sustained by
donations from organisation and
individuals Already Bassina has made a
significant impact instructing counsel in the
Untan and Peacock matters #
12 PIAC Bulletin No 16 • December 2002