Judicial Review Application (3000 Words)
Relevant Legislation: Primary Industries Research and Development Act 1989 (Cth) and any relevant subordinate legislation.
[1] Mr Steven Vai is a very successful rice farmer and has been one for the past 20 years. In addition to running his rice farm empire, he was also involved in several advocacy groups and committees for rice farmers. He is particularly proud of his work when he was on the board of the Ricegrowers Association of Australia. Mr Vai has lived in Australia his whole life although his parents were originally from Italy. He also has a Masters of Food and Agribusiness from Hypothetical University which is an accredited Australian university.
[2] AgriFutures is the trading name for the Rural Industries Research and Development Corporation. Its functions, as set out in the Primary Industries Research and Development Act 1989 (Cth) (the Act), include investigating and evaluating the requirements for research and development in industries in respect of which it was established.
[3] On the 15th of May 2020, Dr Orion Penny with a PhD in Agricultural Science decided to step down from the board of directors of AgriFutures as she wanted to pursue a career in music instead. This created a vacancy on the board of AgriFutures, setting in motion the selection process for hiring a replacement director.
[4] On the 20th of May 2020, the Minister for Agriculture, Drought and Emergency Management
(the Minister) appointed Mr. Gottardo and Mr. Lane to be Presiding Members of the Selection Committee for the new position (there was no existing Selection Committee). The Minister made the appointment over the phone and told Mr. Gottardo and Mr. Lane to provide a nominee in the next three months. [Note: students may assume that AgriFutures is not a predominantly Commonwealth funded R&D Corporation].
[5] Mr. Gottardo and Mr. Lane started the process by having meetings with the representative organisations of AgriFutures. Together, they arranged meetings with each individual
representative organisation rather than with all the organisations in one place as it was too difficult
to arrange a date convenient for everyone. After much deliberation with the representative organisations of AgriFutures, Mr Gottardo and Mr. Lane decided that Mr. Lane should head the Selection Committee and nominated four other Selection Committee members. The deliberations with the representative organisations emphasised both the need for the Selection Committee to have expertise and the need for diversity. Mr. Gottardo and Mr. Lane are satisfied that the nominated Selection Committee is a fairly diverse and expert group.
[6] Mr. Gottardo and Mr. Lane attempted to contact the Minister about the identity of the four Selection Committee members, but the Minister commented that she was too busy and I trust whatever people you have appointed. They took the statement as an approval of the Selection Committee and commenced the process of appointing a new director.
[7] On the 7th of July 2020 the new board position was advertised in Vegetables Australia and Potatoes Australia which are the leading industry magazines for those in the agricultural industry in Australia. These magazines are widely read by industry insiders across all Australian States and Territories. The Selection Committees rationale for choosing these magazines was that these industry magazines do have news in them (they report factual stories) and experts are reading these magazines. There is no point advertising in a general newspaper that is more expensive while potential applicants with the relevant experience and expertise would be reading Vegetables Australia and Potatoes Australia anyway. The Selection Committee also invited AgriFutures representative organisations to make suggestions for nominees.
[8] The advertisement read as follows:
POSITION: DIRECTOR FOR AGRIFUTURES AUSTRALIA
AgriFutures is a government body dedicated towards research and development of rural industries in Australia. We are inviting wellqualified candidates to apply to be a director on the board of AgriFutures Australia.
A successful job candidate would meet the following selection criteria:
(a) has expertise in production, processing or marketing of rural industry commodities, conservation or management of natural resources, environmental and ecological matters, or other matters listed in s 131 of the Primary Industries Research and Development Act 1989 (Cth).
(b) preferably has board experience on a related agricultural body.
(c) has at least a Masters level qualification in a relevant field.
Please send a cover letter, 4 page resume and selection criteria
document to [email protected]
The Selection Committee
[9] Mr Vai was reading a delightful report on potato farming in Potatoes Australia when he saw the advertisement for the position. He is very passionate about the agriculture industry and so decides he wants to apply for the position. The advertisement required that applicants demonstrate expertise in one of the fields listed in s 131 of the Act. In writing his application Mr. Vai primarily
promoted himself as having expertise in commodity production and business management. He spent several days polishing his application, getting feedback from friends and colleagues, and finally sent it out with confidence.
[10] After receiving several applications, the Selection Committee met with Ms Katie Hull the Chairperson of AgriFutures to discuss what she was looking for in a replacement for Dr. Penny. Due to COVID-19, the various farming sectors that AgriFutures works with have been having difficulties hiring workers. Consequently, Ms Hull commented that they probably need someone with expertise in legal matters, especially when it comes to labour laws and conditions. Further, she would like to see more diversity on the board.
[11] On the 26th of July, Mr. Vai received a phone call with the good news that he is going to get an interview. At the interview, Mr. Vai met with Mr. Lane and the other Selection Committee members. It turns out that Mr. Vai knew one of the Selection Committee members from Mr Vais previous stint on the board of the Ricegrowers Association of Australian. The Selection Committee member lets the other members know of their acquaintance and continues with her committee duties.
[12] Unfortunately for Mr Vai the Selection Committee did not nominate him and nominates someone else. On the 10th of August they send the nomination to the Minister who is at the time of this judicial review application yet to have made a decision.
[13] On the 15th of August, Mr Vai was informed about his rejection with the following email:
Dear Mr Vai
Unfortunately we have not chosen to nominate you for board member of AgriFuture. While your resume was certainly impressive there were many well-qualified applicants
and we chose to go in another direction.
We thank you for your time.
Sean Lane
[14] Mr. Vai wrote back to ask if he could get any feedback on the application. Mr. Lane replied with the following details: Dear Mr. Vai
I can reveal that the following factors were taken into consideration by the Selection Committee:
(1) The Chair of AgriFuture indicated that they needed more legal expertise on the board and that was lacking in your application.
(2) As part of our functions under s 130 of the Primary Industries Research and Development Act 1989 (Cth) we have to select a nominee in such a way that encourages diversity among board members. We have decided that due to a large proportion of white males in the board,
it was not appropriate to select another one.
(3) While you do have a Masters of Food and Agribusiness from Hypothetical University, we do not consider the degrees issued by the Hypothetical University to be a sufficient signal of
quality.
(4) Based on your personality we did not think you were a great fit into the work culture for
AgriFutures.
We hope this helps you understand our decision.
Sean Lane
[15] Mr. Vai made a Freedom of Information (FOI) application to find out who was nominated for the position. After some back and forth with the Office of the Australian Information
Commissioner, the qualifications and background of the nominee were revealed (but not his name). The documents identify that the person selected by the committee is from an ethnic minority group but has no experience in the agriculture industry, no experience sitting on other boards, and only has a double degree bachelors of law and economics. The FOI documentation also shows that the email from the Selection Committee to the Minister only listed the name of the nominee and no other details about the nominee.
[16] The Minister is currently away on holiday and has yet to have made a decision on the nominee. Before the Minister left, however, the Minister did indicate that she was worried about the qualifications of the nominee and was considering rejecting the nomination. The email of the Minister to Mr Lane reads as follows:
Dear Mr Lane,
I am very pleased with all the hard work you have put into interviews and various consultations over the past few months. I am, however, slightly concerned with the quality of the nominee. I suggest we speak about this when I get back from my vacation.
The Honourable Minister
Mr. Vai hires you to write an Administrative Decisions (Judicial Review) Act 1977 (Cth) application to the Federal Court. He wants you to challenge the nomination by the Selection Committee.
Students may assume that all facts above are true and can be put forward in your written submissions.
II INSTRUCTIONS FOR STUDENTS
i. Based on the Facts Scenario, your knowledge of the unit and your further research into relevant legislation and cases, you are partially to prepare an
Application for Judicial Review in the Federal Court of Australia under the ADJR Act comprising a completed Application for Judicial Review Form in accordance with these instructions.
ii. These instructions are intended to make it easier for you to complete the assignment satisfactorily, and to ensure that you are only assessed in relation to Topics 1 to 6 of the unit (with exception of Justiciability which is not assessed for Assignment 1). If you do not comply with these instructions you will find the Assignment much more difficult to complete, and your answer will contain irrelevant material for which you will not receive any marks.
iii. A point on Topic 6 Students do not need to be know the minutiae of remedies for Assignment 1 (although they will have to for the exam). What students need to identify is (A) are they getting remedies for a decision, conduct, or failure to make a decision and (B) what order do they want e.g. to quash a decision; declare rights; direct parties to do or refrain from something (see s 16 ADJR Act). iv. Although you are to make an application under the ADJR Act you will still need to plead that the relevant decision-makers specific decision in this instance is a decision of an administrative character made under an enactment (or a failure to make a decision, or conduct related to the making of a decision, or one or more of the above), in terms of the ADJR Act, and hence reviewable under that
Act (these issues will be covered in Topics 2 3).
v. The relevant forms will be placed shortly in the CloudDeakin Assessment wuvwunnrs
Resources / forms folder. Your Application must be supported by written
submissions for the Applicant. The written submissions should set out the legal arguments that you wish to make in support of your Application for review. The submissions should be sufficiently detailed so that a judge reading them can understand the legal basis upon which you seek to challenge the conduct or decision. They must also be succinct.
vi. The application will consist of Form 66 and then written submissions. The application must start with form 66 which can be found on the CloudDeakin Assessment 1 page. Form 66 is intended to be a brief summary of the submissions. While form 66 indicates that there needs to be a separate form for each decision / conduct / failure, we will allow multiple reviews to be in the same document (should you think that you need multiple reviews).
After the end of Form 66, students may then proceed to the written submissions proper in any format the student decides. Combine forms 66 and the written submissions in the same document, with form 66 coming first.
vii. Example High Distinction Applications and written submissions will shortly be provided in the Assessment Resources Folder in CloudDeakin (see Sample HD noumenon papers) and you are encouraged to refer to them for guidance as to how to complete this task. Do note that in previous years, students completed their written submissions using Form 17 (in addition to Form 66). We no longer need Form 17. Students can now follow any format for the written submission, but should still pay attention to how previous HD students structured the content
e.g. starting with jurisdiction first then moving on to standing etc. Students do still need to complete Form 66 first.
A sample of what we are looking for in terms of combining the documents will be uploaded later in trimester.
viii. There is no minimum or maximum number of grounds you have to allege, however do note that there is a danger when both arguing too many and too few grounds. Make too many submissions and it is unlikely you can address enough law and objections to satisfactorily convince a judge of your claim. Make too few submissions, and you will be in trouble if a judge does not agree with the grounds you chose. It is thus a balancing act.
ix. You can assume that the law which applies to this assignment is the law as at 12 March 2021 (that is, in the unlikely event that the law changes after that date, by, for example, an amendment to the Act or subordinate legislation, you do not need to take these changes into account).
x. The Unit Team will be seeking any requests for clarifications of the facts over the next few weeks, with all clarifications due by the end of Week 4. If we think there are any legitimate issues for clarification we will then release a Factual Addendum in Week 5. Please post these requests for clarifications either on the Discussion
Board or through an email.
xi. There may be issues of law relevant to the satisfactory completion of this assignment that you may not cover in classes. This is intentional, and it is expected that you will research those issues on your own, or with the assistance of your peers and the Law Library staff.
xii. The assignment is worth 50% of the total marks for MLL424.allowed xiii. The word limit is 3000 words. The word count excludes footnotes and the existing details on the application form, but footnotes must only include the citation of appropriate references, not substantial text or analysis. Examiners will not read any part of the assignment once the word limit is reached. There is no
5% leeway. Please include the word count at the conclusion of your assignment.
xiv. The assignment must be formatted with font no smaller than 12 point, with line spacing of 1.5.
xv. All pages must be numbered and include your student ID number in the header or footer.
xvi. All electronic files must be uploaded to CloudDeakin in either .doc or .docx ammoniums format. Feedback will not be provided if it is uploaded in another format, such as .pdf.
xvii. You must correctly reference and cite other peoples words, ideas, research findings or information. You must reference the resources you use
following the legal referencing style in the 4th edition, 2018 version of the Australian Guide to Legal Citation. If you have any questions, please use the referencing support available: http://www.deakin.edu.au/students/studym-GAo-af@fsupport/referencing xviii. The assignment is due by 8.00pm (AET) on Friday, 30th April 2021. All
assignments must be submitted electronically via CloudDeakin by the due date.anagram xix. In accordance with Faculty policy, every effort will be made to ensure that assignments are marked within 15 working days.
xx. In accordance with Faculty Policy, if you submit an assignment late, with no extension granted, 5% of your final mark for the assignment will be deducted per calendar day for the first five calendar days from the due date. For a 50 mark assignment, each
day the assignment is late will result in a penalty of 2.5 marks being deducted. After the five calendar days have elapsed the assignment will not be marked. The assignment will be held over and may, in limited circumstances, be taken into account in marking after the exam in determining whether you pass or fail the unit.
xxi. Extensions are not granted lightly, as this will disrupt marking, and is unfair to most students who have complied with the submission deadline. If you are experiencing serious and exceptional circumstances that are beyond your control (such as medical conditions of a serious nature, family death or breakdown, or hardship or trauma; not travel, computer failure, or work commitments) please go
Momoyamasupport/assTomignment-extensions and follow the instructions and advice there. to https://www.deakin.edu.au/students/faculties/buslaw/student-
xxii. Please note that when you submit your assignment via CloudDeakin you are required to make a plagiarism / collusion declaration in the following form. As a result, an assignment cover sheet is not required to be submitted.
FACTUAL ADDENDUM T1 2021 MLL424 ASSIGNMENT 1Mmmmm
Note: The numbering follows on from the original document. You may use the following in your answer to the assignment.
[17] The original email to the Minister on the 10th of August see [12] and [15] did not have details about the qualifications or experience of the nominee. However, the Minister did call Mr. Lane on the 11th of August to inquire about the qualifications and experience of the nominee. Mr. Lane then reads out the nominees qualifications based on the documentation of potential nominees the Selection Committee previously constructed.
[18] The date of your application should be the 1st of September 2020 it is lodged before the Minister makes a decision. You can assume there are no jurisdictional issues with the date of the application.
[19] The current board of AgriFutures consists of Ms Katie Hull as the chairperson and another 6 directors. The other 6 directors comprise 3 cisgender male and 3 cisgender females who are all of Anglo or European heritage. The current expertise of the board members covers the science, research and management of various agricultural industries.
[20] Mr Lane and Mr Gottardo were appointed as Presiding Members on a part-time basis.
L
Ñwmmammmmnm ML 424: ADMINISTRATIVE LAW
STUDY GUIDE
What is this Document?
This document compiles what I, David Tan, think the core cases and concepts are for administrative law. It also provides the relevant readings from the textbook. Do note as Dr Oscar Roos is taking the classes, the classes will definitely differ to some extent from this document but there will definitely be core similarities between this study guide and Dr Roos classes. Despite these differences I heavily recommend using this Study Guide as a supplement to Dr Roos classes. [Also, we team write the assessments so do not worry about slight differences].
In addition, this document contains many self-study questions that will provide immediate feedback on your knowledge of the unit.
References
All page and chapter numbers refer to the prescribed texts, Judith Bannister, Anna Olijnyk and Stephen McDonald, Government Accountability Australian Administrative Law (Cambridge, 2nd ed, 2018) (Textbook) and Judith Bannister and Anna Olijnyk, Government Accountability
Sources and Materials (Cambridge, 2018) (Sources & Materials)
All references in [
] brackets refer to the textbook.
TOPICS
In a nutshell, Administrative Law is the branch of law that regulates the executive government of Australia and keeps them accountable. Think about this way, if you get into a beef with a government department what can you legally do? What about people who dont have the time or money to get lawyers? Thats what this whole unit is about.
The course is split into two large categories. Topics 2 7 cover when and how we can ask a court to review a decision of the executive (what is called judicial review). Topics 8 and
9 cover how we can keep the executives decisions accountable, without only relying on the courts.
Topic 1: Introduction to Administrative Law
Accountability Through Courts Judicial Review
Topic 2: Sources and Eligibility of Judicial Review
Topic 3: Grounds of Review Introduction and Procedural Fairness
Topic 4: Grounds of Review Errors in Determining the Scope of the Power
Topic 5: Grounds of Review Improper Exercise of Power
Topic 6: Consequences of Unlawful Action
Topic 7: Jurisdictional Error and Exclusion Clauses
Accountability Through Other Means Merits Review, Information Disclosure and Ombudsman
Topic 8: Merits Review and Administrative Tribunals
Topic 9: Ombudsmen and Information Disclosure
TOPIC 1: INTRODUCTION TO ADMINISTRATIVE LAW
In this topic we introduce the idea of administrative law and some of the underlying values behind it.
Textbook Reading: Chapter 1 and parts of Chapter 2.
Sources and Materials Reading: Chapter 1 and pp22-31 of Chapter 2
1.0 What is Administrative Law? [pp2 -9 of Ch 1]
We will discuss the need to make sure we keep the executive government accountable and that they comply with law.
2.0 Who is the Executive? [pp32 53, of Ch 2]
We said we need to keep the executive accountable, but who is the executive? This is not as simple as it first seems. For example, what about outsourcing of government functions?
R v Panel on Takeovers and Mergers; Ex Parte Datafin Plc [1987] 1 QB 815
NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277
Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42
3.0 Accountability as the Underlying Rationale [pp9-19 of Ch 1]
What are the goals and motivations for having a system of administrative law?
3.1 Democracy
3.2 Rule of law
3. 3.Separation of powers
3.4 Individual rights
4.0 Modern Reform [pp20-21 of Ch 1]
The most important is to remember the Kerr Reforms primarily the introduction of the AD(JR) Act, merits review tribunals, the ombudsman and freedom of information legislation.
Do you know the following?
Basic Information
Which branch of government administrative law focuses on the executive.
The executive is not just the PM and cabinet, but all government agencies.
The Kerr Reforms
Average Grasp
Why things like outsourcing and privatisation are borderline cases for who falls under the executive.
What Datafin says.
What AWB v Neat says.
Understands the basic underlying value of administrative law relating to accountability and the rule of law.
Good/Advanced Grasp
Can explain why AWB v Neat seems antithetical to Datafin.
Can explain the M68/2015 decision.
Can explain how the underlying rationales of administrative law might conflict (e.g. democracy and individual rights).
TOPIC 1 SELF STUDY MCQ
Question 1
Administrative law is the law that regulates:
a. The judiciary
b. The parliament
c. The executive
Question 2
Which of the following would NOT be a member of the executive branch of government:
a. A judge on the High Court
b. A tax assessment officer
c. A Minister.
Question 3
The only way to keep the government accountable is through the court system.
TRUE/FALSE
Question 4
In Plaintiff M68 the High Court decided that the Nauru detention of refugees does not count as an action of the Commonwealth.
TRUE/FALSE
Question 5
Which of the following is not a child of the Kerr Reforms?
a. The judicial review system.
b. The Ombudsman
c. Merits Review tribunals.
Answers: Qn 1(c); Qn 2(a); Qn 3-FALSE (topics 7 and 8 investigates non-judicial ways to keep the government accountable); Qn 4 TRUE; Qn 5(a) (there were always non-statutory ways of seeking judicial review before the Kerr reforms, this will become clearer in Topic 2)
TOPIC 2: SOURCES AND ELIGIBILITY FOR JUDICIAL REVIEW
There are judicial mechanisms of keeping the executive accountable (i.e. judicial review) and non-judicial methods. Topics 2 7 will cover judicial review whereas topic 8 and 9 will cover non-judicial mechanisms for keeping the executive accountable.
This topic will introduce the idea of judicial review and will explain who can get judicial review.
Textbook Reading: Parts of Chapters 7, 9, 10, 11 Sources and Materials: pp 216-242 of Chapter 9; pp262- 274 of Chapter 10, pp 300 -306 of Chapter 11
1.0 Introduction to Judicial Review
The general principle of judicial review is that judges can review errors of law that decision maker has made and not errors of fact. However, as we shall see later on in the course, there are counterexamples to this.
1.1. Judicial Review v Merits Review v Appeals [284 287 Chapter 9], [pp222225, Ch7]
1.2. Factual versus Legal Errors [376 380 Chapter 11]
Collector of Customs v Pollozanic Enterprises Pty Ltd (1993) 43 FCR 280
2.0 Sources of Judicial Review (Some lawyers call this topic Jurisdiction)
In Australia, there are three different sources for the right to ask for judicial review: from common law, from the constitution and from statute. Distinguishing these sources are very important as the rules around judicial review are different depending which source of judicial review is used.
[pp288 -315 of Chapter 9]
2.1 Common law judicial review
2.2. Constitutional judicial review
2.2.1. At the High Court: Section 75(v) and 75(iii)
Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319
(the Offshore Processing Case)
2.2.2. At Federal Courts (that are not the High Court)
s 39B of the Judiciary Act 1903 (Cth)
2.3. Statutory judicial review
Three types of actions to which the ADJR applies: (1) Decisions, (2) Conduct for the purpose of making a decision and (3) Failure to make a decision.
ss 3, 5, 6, 7 and Schedule 1 of the AD(JR) Act 1977 (Cth)
2.3.1 What is a decision and decisions to which the Act applies?
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321*
Roche Products Pty Ltd v National Drugs and Poisons Schedule Committee (2007) 163 FCR 451 Griffith University v Tang (2005) 221 CLR 99
2.3.4 What is conduct?
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321*
Miller v Goldfields Land and Sea Council Aboriginal Corporation (2014) 219 FCR 152
2.3.3 What is a failure to decide?
3.0. Standing
Not everyone can ask for judicial review. The question of standing, is who has the right to ask for it.
[339- 357 Chapter 10]
3.1 The Attorney General
Re McBain; ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372
3.2. Special Interest Test
Australian Conservation Foundation v Commonwealth (1980) 146 CLR
493
3.3. Persons Aggrieved Test
ss 3(4), 5, 6 and 7 ADJR Act
3.4. Indirect Interests
Onus v Alcoa of Australia Ltd (1981) 149 CLR 27
Ogle v Strickland (1987) 13 FCR 306
Batemans Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247
Argos Pty Ltd v Corbell (2014) 254 CLR 394
3.5. Public Interest Groups
North Coast Environmental Council v Minister for Resources (1994) 127 ALR 617
Right to Life Assoc (NSW) v Sec, Commonwealth Department of Human Services and Health (1995) 128 ALR 258
3.6. Interveners and Amicus Curiae
4.0. Justiciability
[331-339 Chapter 10]
Not every matter is appropriate for a judge to review (even if might be possible legal errors). A matter is appropriate for judicial review if it is justiciable, and non-justiciable otherwise.
4. 1.The Traditional Approach
4.1.1. Source of the Power
R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170
4.1.2. Status of the Decision Maker
R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170
4.2 The Modern Approach: Subject Matter
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
Aye v Minister for Immigration and Citizenship (2010) 187
FCR 449
Do you know the following?
Basic Information
Judicial review is carried out by courts, merits review by tribunals (at fed level) The difference between the source of judicial review, standing, and justiciability.
In judicial review you can either bring a claim of judicial review under the common law/ constitution or pursuant to statute.
The AD(JR) Act is the federal statute that allows you to bring judicial review claims against the Commonwealth (assessed for the assignment)
Not everyone can get standing, only people with some special interest or who is aggrieved.
Not every matter is justiciable, those that are too politically complex will be left to the executive. Average Grasp
Constitutional judicial review can be brought under s 75(v) and s 75(iii)
AD(JR) Act judicial review requires that a claimant meet the basic jurisdictional threshold there is a decision (or potential decision) that can be made pursuant to a federal statute, which is of administrative character, and which is not excluded by Schedule 1.
Understands the difference between bringing a claim under ss 5, 6 and 7 of the AD(JR) Act
Understands Griffith v Tang about a decision having to explicitly be referencing a statute, for it to be pursuant to statute.
The AD(JR) Act uses the person aggrieved test for standing. People who are mere busybodies or have mere intellectual concern do not have standing.
Understands that for standing, some cases will be indirect or be public interest groups and more complicated application will be required to bring those under the relevant standing test.
Can explain the Peko-Wallsend test of justiciability not something too politically complex.
Good/Advanced Grasp
Understands the difference between s 75(v) and 75(iii)
Can explain the Bond case.
Understands the difference between the traditional and modern approaches to justiciability.
Common mistakes for Topic 2
Students confuse the issue of jurisdiction under the ADJR Act for justiciability. Jurisdiction under the ADJR Act is whether there is a decision (or future decision or failure to meet a decision) under some federal statute. Justiciability is about whether the matter is too polycentric for a court to get involved.
Students confuse ss 5 and 6 of the ADJR Act. For almost any case once a decision has been made you only use s 5. Its only when a decision is still pending that you use s 6.
Students often use the special interest test when making an ADJR Act application. While the content of the special interest and person aggrieved test is basically the same; stick to the term person aggrieved for ADJR Act pleadings.
TOPIC 2 MCQ Self-Study Questions.
Question 1- Judicial review involves the review of:
(a) Errors of Law
(b) Errors of Fact
(c) Neither (a) nor (b)
Question 2 When bringing a judicial review claim under constitutional law, one needs to use:
(a) The ADJR Act
(b) Section 71 of the Constitution
(c) Sections 75(iii) or 75(v) of the Constitution.
Question 3 If a matter is non-justiciable that means:
(a) The matter does not meet the requirements of the ADJR Act
(b) The matter was decided by the Prime Minister or cabinet ministers.
(c) The matter is too polycentric or political and thus not appropriate for judicial supervision.
Question 4 The test for standing in the ADJR Act is the special interest test.
TRUE/FALSE
Question 5 Any person has standing to bring an administrative law claim because statutes apply to everyone.
TRUE/FALSE
Question 6 Typically s 6 of the ADJR Act is used when:
(a) A decision has not been made yet, but steps have been taken leading up to a potential decision.
(b) A decision has already been made.
(c) There was a refusal to make a decision.
Answers
Qn1(a).
Qn2(c).
Qn3(c) The answer (a) is not right, that is a matter of jurisdiction not justiciability. The answer (b) is the traditional approach where one looked at who exercises the power, which is no longer applicable.
Qn4 FALSE.
Qn 5 FALSE while this is an argument some use for the notion of open standing, this is not accepted in Australia Qn6(a).
TOPIC 3: GROUNDS OF REVIEW INTRO & PROCEDURAL FAIRNESS
We have covered who has standing to get judicial review. Topics 3 5 are about what happens after you get standing. On what grounds can you ask a judge to review an administrative decision? Remember you have to identify legal errors in order for there to be a ground of review.
In topic 3 we introduce the notion of grounds of review and cover the grounds of review having to do with proced