Tribunal Decisions Research Articles

Factors used to determine sanctions following professional misconduct of Australian psychologists: a thematic analysis

ABSTRACT Objective The present study explored factors described in sanctions determined by disciplinary tribunals for professional misconduct by psychologists. Method Eight randomly selected tribunal decisions from 2014 to 2021, with findings of professional misconduct by psychologists, were analysed using an inductive approach to reflexive thematic analysis. Results Coincidentally, all tribunal decisions analysed included professional misconduct of a sexual or intimate nature. From our analysis, a clear superordinate theme was generated, which was the presence of aggravating and mitigating factors that tribunals described in the determination of sanctions. This superordinate theme was comprised of the following themes: (1) the degree to which power was exploited by a psychologist over a client, (2) the psychologist’s insight into their wrongdoing, and (3) the psychologist’s accountability to the tribunal for their actions. Conclusions Themes generated from our analysis show the use of aggravating and mitigating factors by tribunals in the determination of sanctions, however the use of these factors is not always clear. Guidance to tribunals may broadly support better use of aggravating and mitigating factors. It is important to note that our study was limited to 8 similar cases of a sexual or intimate nature and future research should continue to understand the use of aggravating and mitigating factors in more diverse tribunal case.

Rewriting Internal Relocation from a Refugee Perspective - The Lived Experience of Refugees in Afghanistan

ABSTRACT This article is part of a broader project aimed at rewriting refugee law jurisprudence from a lived refugee perspective. The co-authors, one of whom is a refugee from Afghanistan, have chosen internal relocation as the subject of this project as it is a problematic and controversial principle of international refugee law which we believe is frequently applied without due consideration of the practical experience of refugees. Internal relocation provides that a refugee may be returned to their country of origin if they can relocate to a “safe” part of that state where they would not have a well-founded fear of persecution. This principle is somewhat tempered by the application of a “reasonableness” test in most jurisdictions. That test aims to reflect that, in some cases, it may not be possible to require a refugee to relocate to another part of their country of origin to avoid persecution. However, a “reasonableness” factor is not always considered as part of relocation. Moreover, it aims to bring an “objective” standard of reasonableness, which can be critiqued on a number of bases. In this article, the authors rewrite an Australian Refugee Review Tribunal decision dealing with an applicant from Afghanistan to reflect the lived experience of refugees better and to encourage readers to think about whether some of the assumptions made in internal relocation jurisprudence have been fully interrogated. Much of internal relocation scholarship focuses on conceptual legal issues, for instance, whether relocation is grounded in the text, context or object of the 1951 Convention relating to the Status of Refugees and whether relocation fits within the “well-founded fear” or “state protection” limb of the refugee definition. While these are important conceptual debates about the treaty basis for internal relocation, we believe these have been well-analysed in the existing literature. Our article seeks to add to these core debates by reconceptualising the application of relocation to authentic refugee experiences and, through this, to highlight some of the weaknesses in the current approach to this complex question.

Bayesian Network를 이용한 수상 레저사고 위험 요인 분석

Since 2016, the incidence of marine leisure accidents has doubled approximately. In response to the growing societal call for accident prevention, the Central Marine Safety Tribunal and the Maritime Police Agency have been systematically managing safety accidents by publishing marine safety tribunal decisions, annual reports, and statistical data. In this study, based on these tribunal decisions, Bayesian Network analysis and accident fault ratios were utilized to analyze the risk factors contributing to accidents. The analysis revealed that in accidents involving collisions, negligence of boundaries (0.444) showed the highest priority, while accidents involving capsizing identified non-compliance with safe speed (0.384) and absence of distress signal equipment (0.384) as high priorities. In accidents leading to sinking, negligence of boundaries (0.8) was highlighted. For future, more detailed accident prevention plans in marine leisure activities, there is a need for legal and institutional research to improve marine accident tribunal decisions and restore data reliability

Abortion attitudes among youth before and after abortion ban in Poland

ObjectivesTo compare attitudes toward abortion among youth before and after the Polish Constitutional Tribunal introduced abortion ban in October 2020. Study designThe study uses two nationally representative samples of final-year secondary school students conducted in Poland before (year 2018, N = 1609) and after the abortion ban (year 2021, N = 1513). ResultsThe support for abortion increased between 2018 and 2021 (OR=2.77 in foetus impairment case; OR=2.58 in mother's health at risk case). The increase was stronger among females than males. ConclusionsYouth accept abortion more in 2021. The increase may be linked to the Tribunal Court decision and youth involvement in massive demonstrations.

International Treaties as Sources of Criminal Law Prescriptions in Chapter 34 of the Criminal Code of the Russian Federation

The authors examine how Russian legislation can be brought in accord with Russia’s international obligations that are used in practice by the lawmakers in the Criminal Code of the Russian Federation: implementation and overt or covert reference. They analyze the examples of implementation and references in Champer 34 of the Criminal Code of the Russian Federation, the specifics of adding articles and the used legislative formulations. The authors present examples of a different scope of criminalizing an action at the domestic and the international levels. Besides, they highlight the problem of sometimes a considerable time gap between the ratification of an international treaty and its implementation in the Criminal Code of the Russian Federation and note that ratified but unimplemented international treaties are only a part of the Russian legal system, however, they are not sources of Russian criminal law. The research revealed that implementation is sometimes non-linear: several international treaties can be implemented into one Article of the Criminal Code of the Russian Federation or, vice versa, one Article of the Code can determine liability for violating several international treaties. A special part of the work is devoted to studying the list of international agreements referred to in Art. 353–356, 360 of the Criminal Code of the Russian Federation. The analysis allowed the authors to conclude in which cases non-self-executing international treaties are the source of criminal law prescriptions. They also mention a new type of a blanket disposition introduced in 2014, which refers not to a normative act from a different sector, but to a court act (Art. 354.1 of the Criminal Code of the Russian Federation). The authors conclude that in this case the Nuremberg Tribunal's decision will be a source of Russian criminal law. In conclusion the authors outline the most urgent problems at the legislative level that require scientific and practical solutions.

UNPACKING PACCAR: STATUTORY INTERPRETATION AND LITIGATION FUNDING

AbstractIn the most important funding decision in 20 years, the UK Supreme Court has declared in R. (PACCAR Inc. and others) v Competition Appeal Tribunal and others [2023] UKSC 28, [2023] 1 W.L.R. 2594 that, as a matter of statutory interpretation, a third-party funder’s litigation funding agreement (LFA) is a damages-based agreement (DBA) because third-party funders are offering “claims management services”. This decision, which overturned both the earlier Divisional Court and the Competition Appeal Tribunal decisions, and long-held industry and judicial understanding, has had an immediate impact upon UK litigation. Many LFAs will require immediate re-negotiation, given their non-compliance with the DBA legislation; but for some, the ramifications are much more serious. This article traces the legislation, soft law and law reform activity which preceded this momentous event; it suggests that a key principle of statutory interpretation which governed the outcome might arguably be re-evaluated in future case law; it discusses the possibility of legislative reversal; and it predicts the ramifications of the PACCAR decision upon (especially consumer) litigation unless reversed.

Tipping the (Im)balance: Risk, Rehabilitation and Membership in Administrative Appeals Tribunal Decision Making for Convicted New Zealander Long Term Residents of Australia

New Zealanders are currently the largest nationality group of people deported from Australia. When a non-citizen has their visa cancelled on character grounds under Section 501 of the Migration Act (Cth) by a delegate of the Immigration Minister, they have the opportunity to appeal at the Administrative Appeals Tribunal (AAT). AAT Members (decision makers) decide the fate of the applicant by weighing up the perceived risk of the individual to community safety against a series of mitigating factors that relate to the life the applicant has established in Australia. As a site of investigation into s501 visa cancellation decision making practice, this paper quantitatively and qualitatively examines a set of AAT visa cancellation decisions from 2015–2018 under Ministerial Direction No. 65, for 97 New Zealander long term residents. It focuses on how AAT decision makers considered and valued mitigating factors in a decision making process that is inherently imbalanced toward constructing non-citizens as a risk. Our analysis reveals that of all mitigating factors considered, evidence of rehabilitation and legal representation at the AAT hearing are associated with reduced perceptions of risk. When comparing two AAT decisions that are matched on all relevant factors but have different decision outcomes, we find that even where mitigating factors for reducing perceptions of risk are present, potential for inconsistencies in AAT decision making remains.

The Key Issues of the Execution of the Arbitral Awards in the Republic of Armenia

In this scientific article, the author investigated and observed the arbitral awards enforcement regimes on the territory of the Republic of Armenia. Observation of the legislation of the Republic of Armenia in the relevant field revealed features of state compulsory enforcement of arbitral awards of ad hoc institutions on the territory of the Republic of Armenia, permanent arbitration awards and finally arbitration tribunal decisions not exceeding the minimum wage by five thousand time. Some valuable recommendations have been made to improve voluntary enforcement of arbitral awards. The contemporary issues of co-called domestic arbitral awards state compulsory enforcement have been discussed in comparison with western developed countries legal practice. In the article, the author made some suggestions regarding improvement of the legislation on commercial arbitration, mainly concerning the protection of subjective rights. Moreover, the author presented the practical guideline how to exclude by law the private entity eligibility of state compulsory enforcement.

Quality standards for tribunal decision making in strata disputes

PurposeThis study aims to investigate Australian civil tribunal decisions to ascertain compliance with decisional quality standards in Australian law, with a particular focus on strata and community title cases.Design/methodology/approachAn orthodox doctrinal legal analysis and assessment of cases and tribunal policies was adopted. All Australian jurisdictions were surveyed, including federal, state and territory jurisdictions. The case law in each jurisdiction was screened to identify whether the principles applicable to decisional quality were engaged and then analysed as to the extent of that engagement.FindingsWhere a party presents a substantial, clearly particularised argument relying upon established facts, tribunals are obliged to address those facts and the arguments by way of an active intellectual process. However, appellate decisions disclose a degree of deference not often accorded to judicial officers, and there is a need for a more disciplined approach to ascertain whether any errors have been made by a tribunal lie on the critical path to the decision. As strata and community title disputes become more complex, the importance of decisional quality standards can only increase.Research limitations/implicationsUp to date as of 1 March 2023.Practical implicationsThe present position would appear to be that where a party presents a substantial, clearly particularised argument relying upon established facts, a tribunal must address its mind to those facts and the arguments by way of an active intellectual process. The requirement is limited to circumstances prescribed by a statute and factual and legal issues which are necessary to be determined in order for the tribunal to be satisfied as to circumstances prescribed by a statute. However, where the errors are not gross and plainly obvious, appeals from defective tribunal decisions are unlikely to succeed. There is a degree of deference not often accorded to judicial officers. That deference is unfortunate when tribunals are allocated jurisdiction over what quite often are significant property disputes.Social implicationsThe impact on community living of uncorrected poor quality tribunal decisions can be immense, depending on the degree of error. For example, water ingress into people’s homes might remain unremedied for many years, as, for example, occurred in the Marinko case.Originality/valueThe research and analysis is entirely original. A search of journals and textbooks did not identify any prior analysis, at least in the Australian context, relating to decisional quality standards of tribunals.

Death of the complainant and examination of the constitutional complaint in view of the Constitutional Tribunal (CT)'s decision of 21 January 2020 (file. no.: Ts 68/18)

ObjectivesThe purpose of this paper is to discuss the issue related to the examination of a constitutional complaint in the situation of the subsequent death of the person who brought the complaint from the perspective of the general legal interest related to its examination and the objectives associated with the examination of the complaint by the Constitutional Tribunal (CT).Material and methodsTo fully discuss the analysed matter, the dogmatic method, the comparative legal method, and - to a small extent - the historical method were used.ResultsAccording to the Constitutional Court, the distinctiveness characterizing the proceedings regarding a constitutional complaint in relation to judicial proceedings is significant enough to justify very cautious application of grounds for suspension or discontinuation of the proceedings. Adopting a different stance would greatly limit the ability to fulfill the primary function of proceedings before the Court in examining the constitutionality of legal provisions.ConclusionsThe death of the complainant should not close the way to constitutional justice. Constitutional review is aimed at protecting the rule of law and fundamental rights, therefore the Constitutional Tribunal should take steps to ensure that each complaint is thoroughly examined, regardless of the complainant's status.

Treaty of Waitangi Principles Relevant to Adaptation to Coastal Hazards from Sea-Level Rise

This article addresses some duties that arise under Te Tiriti o Waitangi/the Treaty of Waitangi that are commonly referred to as "Treaty principles", and applies them to the new issue of protection of Māori interests in the face of coastal hazards associated with sea-level rise. It summarises the Māori interests likely to be affected by sea-level rise and related coastal hazards, and some adaptation measures. It summarises existing information on Crown duties under the Treaty of Waitangi with some comment on their application to local authorities. This includes a summary of the Treaty duties of the Crown (held by central government) and an explanation of how they are enforced. It outlines the Waitangi Tribunal decision on the MV Rena as an illustration of duties relevant to the handling of a disaster that damaged the coastal environment. It then discusses climate adaptation initiatives in the light of Treaty obligations, suggesting what Treaty principles might require of decision-makers and decision-making on climate adaptation measures under current law. While the focus of this article is limited to what existing law on the Treaty principles might require of government, it also briefly addresses recent developments that might expand legal obligations in the future. While this article stems from a project addressing adaptation to coastal hazards from sea-level rise, these findings and principles will be relevant to all climate adaptation decision-making, such as in relation to handling future floods and droughts.

A Post-Mortem Analysis of the Tax Appeal Tribunal's Decision in Check Point Software Technologies B.V. Nigeria Limited v FIRS: Re-stressing the Domestication of Treaty Requirement Under the Nigerian Constitution

A Post-Mortem Analysis of the Tax Appeal Tribunal's Decision in Check Point Software Technologies B.V. Nigeria Limited v FIRS: Re-stressing the Domestication of Treaty Requirement Under the Nigerian Constitution

Causes and Outcomes of Medicolegal Proceedings Following Gastrointestinal Endoscopy in Canada.

Endoscopic procedures are frequently performed in Canada but can be associated with potential complications and medicolegal implications. This study aimed to identify potential medicolegal cases in Canada relating to upper and lower endoscopies as well as advanced endoscopic procedures. Westlaw Canada was searched for any cases regarding upper and lower endoscopies and advanced endoscopic procedures from inception to December 31, 2020. Cases were classified by type of case, procedure performed, patient and defendant demographics, outcome, and alleged reason for litigation/complaint. Twenty-nine civil cases and 9 board and tribunal decisions for upper and lower endoscopies and 3 advanced endoscopic procedure cases were analyzed. The most frequent defendant specialties were family physician, general surgery, and gastroenterology. The plaintiff was successful in 12 cases involving upper or lower endoscopy with an average award of $243,934 (2021 CDN). The most alleged reasons for litigation were procedural error or negligence (n= 19). The plaintiff was successful in 1 advanced endoscopic procedure case with an award of $153,032. Medicolegal cases regarding gastrointestinal endoscopy in Canada occur infrequently. Endoscopy should be performed by skilled providers with appropriate informed consent from the patient, and careful consideration of whether procedures are indicated are key for endoscopic providers.

Financial Services Tribunal Decisions: Singh v Marsh Proprietary Limited and Another Case number FSP57/2022; [2023] ZAFST 39 (12 April 2023)

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Aantekeninge: Lessons from the landmark New South Wales appeal tribunal decision and three community schemes ombud service adjudications on smoking in sectional (strata) title schemes

In ’n onlangse Nieu-Suid-Wallis beslissing beweer die applikant en sy eggenote dat nadat die respondent en sy metgesel agtien maande gelede in die woonstel vier meter direk onder hulle woonstel ingetrek het, sigaretrook vanaf die balkon van die respondente hulle eenheid deur luggate binnegedring het. Dit het gebeur ten spyte van die feit dat al die vensters en deure 95% van die dag toegemaak was. Die egpaar se gesondheid het daaronder gely en tranende oë, ’n lopende neus, ’n seer keel, aanhoudende gehoes, hoofpyn, liggeraaktheid, nukkerigheid, konsentrasieverlies en slapeloosheid is veroorsaak. Die applikante het maande lank sonder sukses gepoog om die probleem op te los deur middel van hoflike en diplomatiese e-posse, en mediasie. Daarna het dit nog ’n jaar en gedingvoering deur drie tribunale geneem om tot ’n finale beslissing te kom. Die appèl tribunaal het beslis dat gesondheidsverlies nie slegs deur direkte rookwalms veroorsaak kan word nie, maar ook later tweedehands weens die feit dat rook vasgekeer is in poreuse oppervlaktes soos matte, tapyte en meubelstukke. Die respondente het nie ontken dat hulle rook nie, maar gevra om toegelaat te word om op hul eie balkon te rook as die windsterkte vinniger as 10 kilometers per uur is. Volgens hulle het ’n voortdurende seebries afkomstig van die see kwalik 100 meter van die woonstelblok, die rook weggewaai. Die tribunaal beslis dat die applikante geen beskerming gebied kan word teen direkte of tweedehandse rook nie en beveel dat die respondente en hulle gaste verbied word om op die balkon te rook. Die drie verbandhoudende aansoeke tot die Suid-Afrikaanse ombuddiens was dat die volgende gevalle neerkom op oorlas en dat die respondent verbied word om daarmee voort te gaan: die indringing van die reuk van marijuana, wierook, vuil water en ontsmettingsmiddels; vaporisering en die rook van e-sigarette deur huurders; en die aanbieding van marijuana partytjies in die woonstel. Die eerste aansoek is verwerp omdat die applikant nie voldoende getuienis gelewer het oor die intensiteit, voortdurendheid en die nadelige gesondheidsgevolge van die gedrag waarteen beswaar gemaak is nie. Die tweede aansoek is van die hand gewys op die tegniese punt dat die eienaar van die tersake eenheid en die regspersoon in beheer nie gevoeg is in die aansoek nie. Die derde aansoek volg dieselfde paadjie omdat die konstitusionele hof beslis het dat die rook van marijuana vir private gebruik nie in Suid-Afrika onwettig is nie. Die lesse wat uit die bespreekte beslissings geleer kan word, is die volgende: (1) Internasionaal word erken dat primêre en tweedehandse inaseming van rook ernstige nadelige gesondheidsgevolge het. (2) Hoewel die bogenoemde soorte van rook nie onwettig is nie, kan dit aanleiding gee tot ’n aansoek dat dit beëindig moet word indien dit so ondraaglik word dat dit nie van die applikant verwag kan word om dit te verduur nie. (3) As gevolg van die fisiese nabyheid van woonstelle kom gevalle van oorlas meer dikwels voor in deeltitelskemas as by alleenstaande buurerwe. (4) Die onus rus op die applikant om op ’n oorwig van waarskynlikheid bewys te lewer dat die intensiteit en voortdurendheid van die rookwalms neerkom op ’n oorlas wat ernstige nadelige gesondheidsgevolge veroorsaak. (5) Indien ’n bevel verkry word dat die oorlas beëindig moet word, kan die applikant die bevel by die hooggeregshof registreer. Dit verleen aan die registrateur die bevoegdheid om die bevel uit te voer asof dit ’n bevel van die hof is.

The Effect of the Judicial Decision of unclos Tribunals on the clcs Procedure: The Case of the South China Sea Dispute

Abstract Asia-Pacific States have recourse to the dispute settlement system provided in the United Nations Convention on the Law of the Sea (unclos) and rely on the Commission on the Limits of the Continental Shelf (clcs) to delineate the extended continental shelf. unclos tribunals are responsible for delimitating maritime zones, and the clcs for delineating the outer limits of the continental shelf. However, the work of the clcs has been suspended at times, owing to other States’ objections. This article investigates the 2019 Malaysian submission to the clcs by reviewing the precedents and existing literature. This submission has become a contentious issue, because of diplomatic note verbales submitted by, among others, China. This article argues that the clcs should handle the Malaysian submission on the premise that the Malaysia–China dispute over the so-called “nine-dash line” can be regarded as resolved, based on a 2016 Arbitral Tribunal decision under Annex vii.

The Concept of Dishonesty in British Medical Discipline

The Concept of Dishonesty in British Medical Discipline

Exploring risk, antecedents and human costs of living with a retained surgical item: A narrative synthesis of Australian case law 1981–2018

Objective(s): This study aimed to critically examine the circumstances contributing to, and the human costs arising from, the retention of surgical items through the lens of Australian case law. Design, setting and participants: We reviewed Australian cases from 1981 to 2018 to establish a pattern of antecedents and identify long-term patient impacts (human costs) of retained surgical items. We used a modified fourstep process to conduct a systematic review of legal doctrine, combined with a narrative synthesis approach to bring the information together for understanding. We searched LexisNexis, AustLII, Coroner Court websites, Australian Health Practitioner Regulation Agency Tribunal Decisions and Panel Hearings, Civil and Administrative Tribunal summaries, and other online sources for publicly available civil cases, medical disciplinary cases, coronial cases and criminal cases across all Australian jurisdictions. Results: Ten cases met the inclusion criteria, including one coronial case, three civil appeal cases and six civil first instance cases. Time from item retention to discovery ranged from 12 days to 20 years, with surgical sponges the most frequently retained item. Five case reports indicated possible deviations from standard protocols regarding counting procedures and record-keeping. In the four cases that reported on count status, the count was deemed correct at the end of surgery. Case reports also showed the human costs of retained surgical items, that is, the long-term impacts on patients associated with a retained surgical item. In eight of the nine civil cases, ongoing pain was the most frequently reported physical symptom; in three cases, patients suffered psychosocial symptoms requiring treatment. Conclusion: While there was little uniformity in the items retained or how items came to be retained, we identified significant time delays between item retention and item discovery, coupled with long-lasting physical and psychosocial harms suffered by patients living with a retained surgical item. Current prevention strategies, including national standards-based professional practices, are not always effective in preventing retained surgical items. An internationally standardised taxonomy and reporting criteria, more consistent reporting, and open access to event and risk data could inform a more accurate global estimate of risk and incidence of this hospital-acquired complication.

A Few Thoughts about the Concepts of International Administrative Tribunals and International Administrative Law

AbstractThis note tries to determine the most appropriate way to position international administrative tribunals (established by a number of inter-governmental organizations) in the public international legal order, and identify the substance of the so-called international administrative law applied therein. There is an emerging group of laws arising from numerous international administrative tribunal decisions that form a substantive body of legal rules applicable therein: a law of international civil service. Judges in those tribunals, who look for an appropriate source whenever they face a non-liquet situation, use the concept of international administrative law to overcome such difficulties. Judges should not hide themselves behind an ambiguous notion of international administrative law or general principles, but apply the law of international civil service with confidence.

Major court and tribunal decisions in Australia in 2021

This 2021 annual survey of Australia's significant court and tribunal decisions spans five key areas. First, the focus is on the High Court's clarification around how employment status is to be determined. Secondly, it examines decisions that have continued to arise out of the Coronavirus pandemic with respect to dismissals stemming from mandatory vaccination policies, an employer's liability in respect of an employee's death caused by Coronavirus, as well as a series of cases involving Australia's major airline, Qantas Airways Ltd (Qantas). Thirdly, consideration turns to developments in general protections and the first application for a stop sexual harassment order made to the Fair Work Commission. Fourthly, it reviews recent decisions concerning out-of-hours conduct and connection to employment. Finally, decisions giving rise to record penalties for contraventions of the Fair Work Act 2009 (Cth) (FW Act) are evaluated.