Question 1.
The Supreme Court of New South Wales is the highest court of the state, with the unlimited civil jurisdiction. The Court has appellate and trial jurisdictions, in addition to the jurisdiction granted by specific statutes. The Court acts as a supervisor over other NSW courts and tribunals. (Supreme Court NSW)
Mental Health Review Tribunal is a non-judicial tribunal established under the Mental Health Act 2007 NSW. The Tribunal has a wide authority to conduct various inquiries in the field of mental health, issue orders, hear appeals regarding the treatment of people with a mental illness. The Tribunal has the power to conduct both civil and forensic hearings, including:
Conducting mental health inquiries and issuing orders for involuntary detention of person in a mental health facility;
Conduct regular reviews of mental health of involuntary and voluntary patients detained in facilities;
Review appeals against refusal of medical officers to discharge an involuntary patient;
Approve surgery and special medical treatment of patients detained in facilities; (Mental Health Review Tribunal)
Mental Health Act provides that any decision of the Tribunal can be appealed to the Supreme Court. Section 163 states that a person may appeal to the Supreme Court against any decision of the Tribunal with respect to the person, as well as against the failure of the Tribunal to make a decision with respect to the person, under the provisions of the Act. Any such appeal must be made in accordance with the rules of the Court. Section 164 describes the authority of the court on appeals. Thus, in hearing an appeal, the court acquires all powers and functions of the Tribunal in respect to the subject matter of the appeal, along with other functions and discretions it has. An appeal is to be conducted as a new hearing, with the right to present new evidence or evidence in addition or substitution of the evidence provided to the Tribunal during the initial hearing. The decision of the Court on an appeal is similar in legal force to the final determination of the Tribunal and must be treated as such. In hearing the appeal, the court may use the services of two assessors who will act as advisors on any matter relating to the appeal, but who will not adjudicate. (Mental Health Act 2007 NSW)
The basic differences between Mental Health Tribunal and the Supreme Court lie in the scope of jurisdiction and place in the hierarchy of governmental bodies. Thus, the Supreme Court has practically unlimited judicial authority, including the power to hear and adjudicate various civil and criminal cases. (Supreme Court NSW) This Court acts as a supervising body over lower courts and tribunals of the state, which means that it functions as a final decision maker when considering appeals from lower judicial and non-judicial bodies (including appeals against determinations of The Mental Health Review Tribunal). The authority of the tribunal, on the other hand, is specific and does not extend beyond the list of issues and matters contained in Mental Health Act 2007 NSW.
Question 2
The High Court`s decision in Mabo indicates that the earlier decisions may be overruled if they were based on legal theories and principles that are no longer considered just or fair, or if such theory or principle was applied wrongfully, or in a manner that produced unfair results.
In this case, the High Court discussed the common law doctrine of native title that replaced a historical doctrine of terra nullius, which for almost hundred and fifty years has been a legal justification on which British claimed possession of Australia. Based on the theory of terra nullius, it was presumed that the indigenous peoples in Australia had no rights in their land. However, in this landmark case, the High Court departed from the traditional legal principles in favor of the doctrine of native title, which recognized the traditional rights of the Meriam people to their islands in the eastern Torres Strait. By this decision, the Court recognized that indigenous peoples in Australia had prior rights to land and those rights will be protected by the Australian law until legally extinguished. In support of this position, Deane and Gaudron JJ said that acts and events that led to dispossession of the Aboriginal people of most of their native lands “constitute the darkest aspect of the history of this nation”, and the nation will remain diminished if the Court fails to recognize and retreat from legal principles that led to those past injustices. (Mabo v. Queensland)The Court re-examined historical facts and concluded that the lands of the continent were not terra nullius or “practically unoccupied”. Since the lands were actually occupied by native peoples, the common law doctrine of native title has to be applied.
The court also re-examined four cases that supported the theory of terra nullius as applied to Australian lands and concluded that nowhere in those cases were even mentioned the rights of aboriginal peoples and the reasoning of those cases consisted ‘of little more than bare assertion”. (Mabo v. Queensland)The courts had no doubts about the validity of terra nullius principle since it was considered obvious, well-settled and in accordance with “the general approach and practice of the Colony” at the time of its establishment.
In addition, the Court had to re-examine the long-standing assertion that the Crown had an absolute beneficial ownership of all the lands of the Colony. The Court rejected this assertion as well, stating that the Crown had acquired not an absolute but a radical title, since the rights of native people limited the title.
I think this case vividly demonstrates that the political and historical conditions have a significant impact on application of law and on the notions of fairness and justice. In the times of establishment of the colonies and for centuries after, the judicial branch silently complied with the political ideology and social order prevalent in the society. No one would doubt that the Australia was “terra nullius” and that, as a consequence, the Crown had an absolute sovereignty over these lands, without any consideration to the rights of the native people. As the Court`s analysis in Mabo shows, the courts often did not even consider to doubt these long established traditions, turning a blind eye to a common law doctrine of aboriginal title which should have been applied.
Thus, this case is very useful for the development of the doctrine of precedent. Under this doctrine, the courts may overturn earlier decisions if they were based on legal theories and principles that no longer conform to the modern notions of fairness, equality and human rights. In addition, the decision may be overturned if it was based on a long-established legal principle that was applied incorrectly, in a manner that produced unfair results.
Bibliography
About the Supreme Court. Supreme Court of New South Wales. http://www.supremecourt.justice.nsw.gov.au/Pages/sco2_aboutus/sco2_aboutus.aspx
Mental Health Act 2007 NSW
The Tribunal. Medical Health Review Tribunal. Retrieved from: http://www.mhrt.nsw.gov.au/the-tribunal/
Mabo v Queensland (No 2) (1992) 175 CLR617
