Land and Environment Court
The NSW Land and Environment Court is a specialist superior court established in 1979 under the Land and Environment Court Act 1979 (NSW), to hear disputes relating to land development, planning, local government, land tenure, land valuation, environmental crimes such as pollution and some native title and aboriginal land rights matters. It has a status equal to the Supreme Court but generally operates in a more informal manner.
Not all decisions of the Land and Environment Court are made by judges; the Court also includes Commissioners and Assessors. Commissioners hear cases involving building applications, development applications, valuations, and disputes between neighbours about trees; and Assessors make expert assessments. Judges of the Land and Environment Court only hear cases involving criminal offences, civil enforcements, appeals against a decision of a Commissioner or Assessor, appeals against certain decisions from the NSW Civil & Administrative Tribunal or cases that raise important issues of law.
The functions of coroners are to investigate certain deaths, suspected deaths, fires and explosions, as set out in the Coroners Act 2009 (NSW). The State Coroner oversees and co-ordinates coronial services in New South Wales, assisted by Deputy State Coroners. All magistrates of the Local Court are coroners. Registrars at Local Courts in most towns throughout New South Wales are also coroners or assistant coroners.
Certain deaths must be reported to a coroner. For example, the death of a person who has died a violent or unnatural death, or a death where a medical practitioner has not issued a medical certificate stating the cause of death are reportable. The coroner will hold an inquest if the law requires an inquest to be held, or if the coroner believes an inquest is necessary. An inquest is a court hearing, held to determine the identity of the deceased and the date, place, manner and cause of death. A coroner must conduct an inquest if:
- the person’s identity, date, place, manner and cause of death have not been sufficiently disclosed
- the person died as a result of a homicide
- the person died as a result of the administration of an anaesthetic
- the person died while in custody
- a child’s death may be due to abuse or neglect
- the person who died was in residential care
- the Attorney General orders an inquest
- the State Coroner directs that an inquest be held.
The coronial process is inquisitorial in nature, rather than adversarial, and coroners are not bound by the rules of evidence. However, a coroner has the power to call witnesses to give evidence at an inquest. A coroner may refer a matter to the Director of Public Prosecutions if the inquest reveals that a known person has committed a serious criminal offence in connection with the death.
A coroner may also promote public health and safety by recommending to the relevant authorities, changes to any practices, policies or laws to prevent similar deaths in the future.
The Children’s Court is a court of the same status as the Local Court. It is established under the Children’s Court Act 1987 (NSW). The Court is composed of a President (of the same status as a District Court judge) and Children’s Magistrates. The Chief Magistrate of the Local Court (in consultation with the Court President) may appoint magistrates of the Local Court as specialist Children’s Magistrates. To qualify as a Children’s Magistrate, a magistrate must have had training in the social or behavioural sciences or experience in dealing with children, or have personal qualities that are appropriate for a Children’s Magistrate.
The Children’s Court deals with children (under the age of 18) charged with summary criminal offences. The Court also deals with some indictable offences, if the child was under 18 when the offence was committed and under 21 when the offence comes to court. Children charged with serious indictable offences are dealt with by the appropriate adult court (the District Court or the Supreme Court, depending on the nature of the offence). A serious indictable offence includes offences such as homicide, armed robbery, and serious sexual assault. In addition, the Children’s Court does not usually have jurisdiction over traffic offences.
Proceedings in the Children’s Court are generally closed to members of the public. There is a prohibition on publishing the name of a child convicted of an offence. However, a court can permit publication of a child’s name if the child has been convicted of a serious indictable offence (Children (Criminal Proceedings) Act 1987 (NSW), section 10 and Division 3A Publication and Broadcasting of Names, section 15C).
Appeals against a decision of the Children’s Court may be made to either the District Court or the Supreme Court. Appeals to the District Court involve a rehearing of the matter.
Children’s Court care proceedings provide judicial oversight of the Department of Family and Community Services (FACS) when removing children from their families for neglect or abuse. Care proceedings are most commonly initiated by the Department of Family and Community Services under the Children and Young Persons (Care and Protection) Act 1998 (NSW).
There are a number of important features about care proceedings. They do not involve a child or young person being charged with any offence. The child or young person is rather the subject of proceedings where a protective order is sought. Although the same events may give rise to care proceedings and a criminal prosecution against a parent, for example for the sexual abuse of a child, the care proceedings are separate proceedings and the Children’s Court can hear the care proceedings regardless of what happens in the criminal proceedings.
There is an emphasis on alternate dispute resolution during proceedings in an effort to avoid a court hearing where possible. There is also an emphasis on the participation of children and young persons in care proceedings, and giving due weight to their views in accordance with their developmental capacity and the circumstances of the case.
Care proceedings are closed to the general public, and the publication of names and other identifying material of children and young persons (with certain exceptions contained in section 105) is an offence with a substantial fine.
Parties who are dissatisfied with a final order (as opposed to an interim order) of the Children’s Court may appeal to the District Court. Parties can also go back to the Court when their circumstances have changed.
The Children’s Court was previously responsible for managing the 12-year pilot project that was known as the Youth Drug and Alcohol Court. The program aimed at rehabilitating young offenders with drug and alcohol problems. The program was an outcome from the NSW Government’s 1999 Drug Summit, operating from 2000 until 2012 when funding was withdrawn.
The Drug Court of NSW is a specialist court that sits in three locations, Parramatta, Toronto and Sydney. It takes referrals from the Local and District Courts of offenders who are dependent on drugs and who are considered to be eligible for a Drug Court program. The Court initially commenced operation as a pilot scheme in 1999 and it operates under the Drug Court Act 1998 and the Drug Court Regulation 2015.
The Drug Court deals with non-violent criminal offences committed by drug-dependent offenders. A re-evaluation of the pilot scheme by the Bureau of Crime Statistics and Research in 2008 showed a significant reduction in the recidivism rate of those who complete the program, compared to offenders given a conventional sentence (usually imprisonment). It also showed that the program is more cost-effective than prison in reducing the rate of re-offending among offenders whose crime is drug related. The Drug Court has both a Local Court and District Court jurisdiction.
To be eligible for the Drug Court, a person must:
- be 18 years or over
- be dependent on a prohibited drug
- reside within specified areas of the Western Sydney region
- have pleaded guilty to (or indicated that they will plead guilty to) the offence
- be highly likely to be sentenced to full-time imprisonment
- be willing to participate in a Drug Court program.
A person will not be eligible if:
- the criminal offence they are charged with involves violence, sexual assault or a large commercial supply of prohibited drugs; and
- they are suffering from any mental condition that could prevent or restrict participation in a Drug Court program.
If an offender is found eligible to participate on the drug court program, the Drug Court will impose an initial sentence on the offender for the offence to which he or she pleaded guilty and that sentence is suspended while the offender remains on the program.
A Drug Court program lasts for a minimum of 12 months and consists of:
- intensive judicial supervision
- provision of drug dependency treatment
- intensive case management by Community Corrections
- the provision of a range of support services for housing, education, vocation training and employment
- random drug testing
- the use of rewards or sanctions to encourage compliance with a program.
When the drug court program is terminated, a final sentence is imposed by the court. If the program is completed successfully, the Drug Court is expected to impose a lesser sentence instead of the original sentence, and the lesser sentence will probably not be a sentence of imprisonment. If the Drug Court finds that there is no useful purpose in the offender remaining on the program a final sentence will be imposed which cannot exceed the initial sentence that was imposed by the court when the participant came onto the program. The final sentence imposed by the Drug Court can be appealed to the Court of Criminal Appeal. There is no right of appeal against the initial sentence or in respect of any sanctions imposed by the court.
The Drug Court differs from other courts in that judges have close personal contact with the offender participating in a Drug Court program. The first evaluation of the operation of the Drug Court by the Bureau of Crime Statistics and Research in 2000 described the involvement of the judge in the rehabilitation process:
There is frequent contact between the Judge and the participant, such that a personal, supportive and encouraging relationship is developed ... Unlike the traditional criminal justice process, the Drug Court of NSW has adopted a team approach to the management of offenders, as occurs in US Drug Courts. At the Drug Court of NSW, the team consists of a senior Judge in her absence, the Drug Court Registrar, an Inspector of Police, a Probation and Parole coordinator, solicitors from the Legal Aid Commission, solicitors from the Office of the Director of Public Prosecutions, and a Nurse Manager from Corrections Health who coordinates the treatment services. Another key feature of US Drug Courts that has been adopted by the Drug Court of NSW is a non-adversarial relationship between members of the team. This approach stems from the supposition that all team members share the common goal of reducing the drug dependence and offending of the participants.
The re-evaluation at page 13 stated that 'The apparent success of the Drug Court suggests that consideration should be given to expanding its reach'.
A Youth Drug and Alcohol Court (a pilot project that operated within the Children’s Court), with similar aims as the Drug Court, but for young offenders, ran in NSW from 2000-2012.
Chief Industrial Magistrate's Court
The Chief Industrial Magistrate’s Court exercises the Local Court’s industrial jurisdiction. It has both civil and criminal jurisdiction under a broad range of NSW and Commonwealth legislation. The Chief Industrial Magistrate and other Industrial Magistrates are appointed by the Governor of NSW from the Magistrates of the Local Court: Industrial Relations Act 1996 (NSW), section 381.
The Court deals with such matters as:
- recovery of money owing under industrial instruments, for example, awards, enterprise agreements and statutory entitlements
- prosecutions for breach of industrial instruments
- appeals from various administrative decisions (licenses)
- prosecutions for statutory breaches.
Industrial Court of New South Wales
The Industrial Relations Commission of New South Wales is the industrial tribunal and industrial court for the State of New South Wales. The Industrial Relations Commission in court session is called the Industrial Court of New South Wales, and it is a superior court, of equivalent status to the Supreme Court. The court may hear industrial relations matters affecting both national system and NSW system employers and employees. It is an eligible court under the Fair Work Regulations 2009 (Cth).
The Industrial Court also has jurisdiction to hear criminal proceedings in relation to breaches of industrial and occupational health and safety laws. The Court determines proceedings for avoidance and variation of unfair contracts (and may make consequential orders for the payment of money); prosecutions for breaches of occupational health and safety laws; proceedings for the recovery of underpayments of statutory and award entitlements; superannuation appeals; proceedings for the regulation and registration of industrial organisations.
The Full Bench of the Industrial Court has jurisdiction in relation to decisions of single judges of the Court, industrial magistrates and certain other bodies. The Full Bench of the Industrial Court is constituted by at least three judges.