Melbourne Law School - Theses

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    Challenging the dominant paradigm: the contribution of the welfare member to administrative review tribunals in Australia
    Swain, Phillip Allan ( 1998)
    This research examined the contribution of welfare members to multidisciplinary merits review tribunals in Australia. It utilised observation of hearings in the Commonwealth Social Security Appeals Tribunal and the Victorian Mental Health Review Board, and a detailed member questionnaire to members of all disciplines in both jurisdictions. The research concluded that welfare members, whether presiding or otherwise, were generally very competent in hearings. They were seen by their colleagues as especially skilled in managing applicant behaviour, in ensuring hearing informality and comprehensibility, and in the assessment of applicant behaviour. Although members or all disciplines participated actively, the presiding member took the principal role and was the most active member within hearings, regardless of discipline. Members, except for medical members, tended to be diverse in their questioning, and did not focus on particular issues or areas of concern to any large extent. Notwithstanding this generality, their colleagues saw welfare members as critical to management of the hearing process, to ensuring that applicants were heard and understood, and in dealing and communicating with applicants who were angry, distressed or otherwise ill at ease with the hearing process. The insights and understandings of the welfare member were also essential in decision-making in those matters where an assessment of behaviour, or its explanation, was central to the determination of matters raised in administrative review hearings. Any move to streamline Federal or State administrative review tribunals therefore needs to consider how the membership of new review bodies will maintain the availability of these insights to tribunal decision-making. Any move away from multi-disciplinary hearings risks jeopardising the justice and fairness imperatives and the capacity of the tribunal to reach the correct decision. In turn, community confidence in the administrative review process can only decline.
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    Legislating our right to die
    Hum, Fiona Catherine ( 1997)
    This thesis argues that the enactment by the Northern Territory Legislative Assembly in 1995 of the Rights of the Terminally Ill Act 1995 (NT), (‘the Act’) did not advance, but rather diminished, a patient’s right to request and receive assistance to die at the time it was in operation. The author suggests the Act failed to achieve the goal of balancing competing interests (patient autonomy versus procedural safeguards) and instead created unnecessarily complex legal and institutional obstacles for terminally ill patients. Despite the positively stated intentions of the main proponent of the legislation, Mr Perron, the parliamentary drafters of the Act erred on the side of caution. Consequently, it was difficult, if not at times impossible, for persons to use the Act in a way which led to results consistent with the Act’s intended purpose. The complex procedural regime set up by the Act, indicates a regressive shift from a patient’s right to undertake an autonomous decision-making process towards a decision process governed by medical paternalism and State intervention. The central argument presented in this thesis is that the rights of patients to take control of their own body and the manner of their own death, will be eroded rather than enhanced if the legislation in the form discussed becomes enacted. Possible alternatives to legislating on euthanasia and physician-assisted suicide are suggested by the author.