Recent Question/Assignment

As per the attached. I have attached the question, an addendum as well as the study guide.
mmmmMLL424 – Assignment 1
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 Committee’s 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 AgriFuturesSelect@gmail.com
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 Vai’s 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-maker’s 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@f--support/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 nominee’s 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.
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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 don’t have the time or money to get lawyers? That’s 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 executive’s 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
• Bateman’s 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. It’s 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 procedural fairness.
Textbook Reading: Parts of Chapters 3, 11, 12 Sources and Materials: Chapter 12
1.0 Introduction to Grounds of Review
As has been emphasised before, judges can only review legal errors. Here we will discuss what kind of legal errors are reviewable under the different types of judicial review. [380 – 386 of Chapter 11]
2.0 Establishing an Obligation of Procedural Fairness – The Threshold Question
This is the first potential ground of review that is covered. The idea is that if a decision is not procedurally fair, then there is a legal error.
• ss 5(1)(a), 6(1)(a) AD(JR) Act 1977 (Cth)
[Chapter 12]
Unlike most other legal errors that is often sourced from a statutory provision, it is not often that you will find procedural fairness requirements written into a statute. How then do we know that there is an obligation to be procedurally fair? – After all, it cannot be a legal error for something to be procedurally unfair unless there is an obligation to be fair. The following establishes when there is an obligation to be procedurally fair.
2.1. There must be an immediate and direct interest
• Kioa v West (1985) 150 CLR 550
• Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 (the ‘Offshore Processing Case’)
2.1.2. Legitimate Expectations not relevant
• Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273
• Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502
2.1.3. Multi-stage Decision Making
• South Australia v O’Shea (1987) 163 CLR 378
2.2 Statute Does Not Exclude Procedural Fairness
• Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
• Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252
• S10/2011 v Minister for Immigration and Citizenship (2012) 86 ALJR 1019
2.1.5. The Principle of Legality [p65-7 of Chapter 3]
Once an obligation to provide procedural fairness is met (i.e. the threshold test) – the question is what constitutes procedural fairness? There are two rules that tell us the answer – the hearing rule and the bias rule.
3.0 The First Rule of Procedural Fairness: The Hearing Rule
The hearing (or lack of it) must not lead to practical injustice – Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502
3.1 Was Notice Provided?
• Eaton v Dental Board of Australia [2012] VSC 10
3.2. Was there Disclose of the Information the Decision-Maker Had?
• VEAL v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88
3.3. Was there an Opportunity to Respond?
• Minister for Immigration and Citizenship v Li (2013) 249 CLR 339
4.0 The Second Rule of Procedural Fairness: The Bias Rule
A decision maker cannot have been biased, or reasonably perceived to be biased, when making the decision.
4.1. Actual Bias
• Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507
4.2. Ostensible/Apprehended Bias
• Ebner v Official Trustee (2000) 205 CLR 337
• Isbester v Knox City Council (2015) 255 CLR 135
Do you know the following?
Basic Grasp
• If a law affects the direct rights and interests of a person, then there is an obligation to be procedurally fair.
• An action taken by the government is procedurally fair where it has met the hearing and bias rules. Average Grasp
• The to consider whether the hearing rule was breached, one needs to consider on the facts whether notice was given (or needed), whether information was disclosed (or needed to be disclosed) and whether a hearing was provided (or needed).
• Recognises the difference between actual bias – you can show what is in the mind of the decision maker – versus apprehended bias – a reasonable person would think the decision maker was biased.
• Understand that rules of procedural fairness can be excluded or modified by statute.
• Recognise that procedural fairness is different from procedural error, even if the distinction is not clear (this will be explained in Topic 4).
Great Grasp
• Understand that there are no universal standards of what counts as fair or biased in every case. It always depends on the facts.
• Knowing that fairness and bias is context specific; is able to manipulate the facts either way (depending what their client wants).
• Understands that procedural fairness is about whether the procedures are fair; procedural error is simply whether a statutory procedural requirement has been followed (regardless of its fairness). This will be explained in Topic 4.
• Understands the line of reasoning in Saeed and Miah about statutory exclusions of procedural fairness.
Common Mistakes
• Not establishing the threshold test before going on to the hearing or bias rule.
• Using legitimate expectations when this is no longer accepted under Australian law.
• Going for actual bias when there is no hope of establishing it (notice it is always easier to establish ostensible or apprehended bias).
• Just because the decision maker has made a decision against your client, does not make them biased. You need to show that in deciding against your client they have not looked at the law impartially. A decision who has in good faith assessed the law and decided against your client is not biased.
SELF-STUDY MCQs
Question 1 – John was not given a fair hearing regarding a decision to allow major construction in his city council area. Suppose that a court decides this construction does not affect John’s immediate rights and interests. Does it matter that there was no fair hearing?
YES/NO
Question 2 - John was given a legitimate expectation that he would have been heard. Is this enough to establish an obligation to be procedurally fair?
YES/NO
Question 3 – Which of the following is a necessary factor in deciding if the hearing rule has been breached?
(a) No notice was given.
(b) Relevant information was not disclosed.
(c) The claimant was not given a chance to respond. (d) None of the above.
Question 4 – Which of the following is easier to establish:
(a) Actual bias
(b) Apprehended/Ostensible bias
(c) Neither they are both equally easy or hard to establish.
Question 5 – Jack has rejected Ahmad’s license without giving Ahmad a chance to respond. Has Jack:
(a) Breached the hearing rule?
(b) Breached the bias rule?
(c) It is unclear
Qn 1- NO. If there is no immediate effect on rights and interests, then no obligation to provide procedural fairness arises; so the government is not obligated to give a fair hearing.
Qn 2- NO. Legitimate expectations are no longer a part of Australian administrative law.
Qn 3 – (d). While these are all important factors, there is no concrete formula for determining whether there has been a fair hearing. In some contexts, some of these factors may be determinative while in others they might not.
Qn 4 – (b).
Qn 5 – (c). Unless you know the statute and the facts, you can never establish whether a legal error (of any type) has clearly occurred.
TOPIC 4: GROUNDS OF REVIEW – ERROR IN DETERMINING SCOPE OF POWER
We continue with second group of grounds of review – where there the decision maker is mistaken about how far their power goes. Textbook reading: Chapter 13
Sources and Materials: Chapter 13
1.0 Improper Delegation
• ss 5(1)(c), 6(1)(c) AD(JR) Act 1977 (Cth)
When a statute says that person X has the power to do something, then X should be doing that thing. There are two exceptions to this: delegation and agency.
1.1 Delegation
Where a statute allows a person to delegate power to someone else.
1.2 Agency
Statute does not give power to delegate, but due to practical considerations can assume that other people are acting as agents of the person with the power.
• Carltona v Commissioner of Works [1943] 2 All ER 560
• OReilly v State Bank of Victoria (1983) 153 CLR 1
2.0 Procedural Error
• ss 5(1)(b), 6(1)(b) AD(JR) Act 1977 (Cth)
Where there are procedural (not substantive) requirements in a statute that are not complied with.
2.1. Is there a procedural requirement in the statute?
2.2. Has the decision maker failed to meet the procedural requirement?
• Tickner v Chapman (1995) 57 FCR 451
2.3. Does failure to meet requirements result in invalidity?
• Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
3.0 Error About Preconditions of Power
There is often some facts that must occur before a person can exercise their powers. These facts are divided into two groups – objective jurisdictional facts and subjective jurisdictional facts.
• ss 5(1)(c), 6(1)(c) AD(JR) Act 1977 (Cth)
3.1. Objective Jurisdictional Facts
• Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135
• Timbarra Protection Coalition Inc v Ross Mining (1999) 46 NSWLR 55
3.2. Subjective Opinions or beliefs (or Subjective jurisdictional facts)
• R v Connell; Ex Parte The Hetton Bellbird Collieries Ltd (1944) 69 CLR 407
• Liversidge v Anderson [1942] AC 206
• Plaintiff M70/2011 v Minister for Immigration and Citizenship (‘the
Malaysian Solution case’) (2011) 244 CLR 144
4.0 Misconceiving the Scope of the Power
• ss 5(1)(d), 5(1)(f), 6(1)(d), 6(1)(f) AD(JR) Act 1977 (Cth)
• New South Wales Registrar of Births, Deaths and Marriages v Norrie (2014) 250 CLR 490
Do you know the following?
Basic Grasp
• An improper delegation error occurs where a statute does not say power can be delegated and yet someone else exercised the power.
• A procedural error occurs where the statute lists out some procedural requirement, but it is not followed.
• Jurisdictional facts/ precondition facts – are those facts that when established give someone some power.
• Misconception of power is about whether the words in the statute delineating the power have been misinterpreted.
Average Grasp
• Even if a statute does not have a delegation provision, an argument for an agency relationship might still be possible.
• A procedural error still does not lead to invalidity unless parliament intended for it to.
• Jurisdictional facts can either be objective or subjective – the only way to know is to read the statute.
• Understand that even if a jurisdictional fact is subjective, the decision maker can still make an error if it is shown they misunderstood the type of mental state they need to form.
• Recognise that jurisdictional fact errors can also often be categorised as misconception of power errors.
Advanced Grasp
• Understand that in a delegation relationship, it is assumed that the delegate exercised the power. In an agency relationship, it is the principal who still exercised the power – but the agent did it on the principal’s behalf.
• Understands the connection between Project Blue Sky and Futuris (will be covered in Topic 7)
• Can explain the Malaysian solution case.
Common Mistakes
• Thinking that any error in a statute is a procedural error. You need to distinguish between a substantive error – about the powers of the decision maker – as opposed to procedures in how to exercise power. Example of procedural errors include a requirement to do something in writing or giving notice or about timing.
• Not applying the Project Blue Sky test when using procedural error. Even if a procedural error has been made, this will not invalidate a decision unless one can show that the parliament intended for the decision to be invalidated.
• Assuming that because a procedural requirement has been breached therefore parliament intended for it to be invalid. This is not correct (although somewhat counterintuitive). Remember the point of Project Blue Sky is that a specific procedural requirement can be breached, but the parliament might not have intended for it to lead to invalidity.
SELF-STUDY MCQ
Question 1. A statute states that the Minister can ‘delegate their powers to any person working within the Minister’s agency’. The Minister delegates the power to someone working outside the agency. Is this a legal delegation?
Yes – there is a delegation provision.
No- while there is a delegation provision, the Minister has not met its requirements.
Question 2. The statute says that ‘all notices must be provided in writing’ before making a decision. The notice is provided orally before a decision is reached. Does this breach in and of itself indicate parliament intended that the decision be invalidated? YES/ NO
Question 3. A statute states that ‘the Minister can issue the license only after three days has elapsed since the submission of the application’. Which is the jurisdictional fact and is it objective or subjective?
(a) Issuing the license; objective.
(b) An application has been submitted; subjective.
(c) Three days has elapsed since the application was submitted: objective.
(d) Three days has elapsed since the application was submitted:
subjective.
Question 4. A statute states that ‘Licenses can be denied if the Minister believes that it is appropriate to do so’. Which is the jurisdictional fact and is it objective or subjective?
(a) Licenses can be denied, objective.
(b) Approving of licenses; subjective.
(c) A belief is formed that it is appropriate to deny a license; subjective (d) A belief is formed that it is appropriate to approve a license, objective.
Question 5. A statute states that ‘Refugees are defined according to the Convention on Refugees’. What is the jurisdictional fact here?
(a) The clauses in the Convention on Refugees.
(b) That refugees are define according to the Convention on Refugees.
(c) There is no jurisdictional fact.
Answers:
Qn1 No.
Qn 2 No – see my comments in common mistakes.
Qn 3 (c) Qn 4 (c). It cannot be (a) as that is the power of the Minister. (b) and (d) don’t make sense as the Minister only has the power to deny a license; we do not know if they have the power to approve one.
Qn 5(c). Recall that a jurisdictional fact is defined as a precondition to power. The statutory provision in Qn 5 does not confer any powers, it is simply a definition section.
TOPIC 5: GROUNDS OF REVIEW – IMPROPER EXERCIES OF POWER
This is our last group of grounds of review, regarding where the decision maker does in fact have a certain power to do something but uses the power wrongly. If pursued under statutory judicial review, most of these are based on ss 5(1)(e) and 6(1)(e) of the AD(JR) Act 1977 (Cth). What is an improper exercise of power is then defined under ss 5(2) and 6(2) of the AD(JR) Act 1977 (Cth). The two grounds that are not found under 5(1)(e) and 6(1)(e) are the no evidence ground and the fraud ground.
Textbook Reading: Chapter 14.
Sources and Materials: Chapter 14
1.0 Relevant and Irrelevant Matters
• ss 5(2)(a)-(b) and 6(2)(a)-(b), AD(JR) Act 1977 (Cth).
1. 1.Failing to Consider Relevant Matters
• Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24
• Tickner v Chapman (1995) 57 FCR 451
1.2. Considering Irrelevant Matters
• Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1
2.0 Improper Purpose
• ss 5(2)(c), 6(2)(c), AD(JR) Act 1977 (Cth).
2.1. Ascertaining the statutory purpose
• R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170
• Shop Distributive and Allied Employees Association v Minister for Industrial Affairs (1995) 183 CLR 552 (the ‘SDA case’)
2.2. The Actual purpose of the decision maker
2.3. Where there are multiple purposes
• Schlieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719
• Samrein PL v Metropolitan Sewerage and Drainage Board (1982) 41 ALR 467
3.0 Fettering Discretion
3.1. Acting Under Dictation
• ss 5(2)(e), 6(2)(e), AD(JR) Act 1977 (Cth).
• Ridell v Secretary, Department of Social Security (1993) 42 FCR 443
• Smoker v Pharmacy Restructuring Authority (1995) 53 FCR 287
3.2. Inflexible Application of Policy
• ss 5(2)(f), 6(2)(f), AD(JR) Act 1977 (Cth).
• Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
• Rendell v Release on License Board (1987) 10 NSWLR 499
• Green v Daniels (1977) 13 ALR 1
4.0 No Evidence
• ss 5(1)(h), 6(1)(h), AD(JR) Act 1977 (Cth).
• Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
• Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212
5.0 Fraud
• ss 5(1)(g), 6(1)(g), AD(JR) Act 1977 (Cth).
• SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189
6.0 Bad Faith
• ss 5(2)(d), 6(2)(d) AD(JR) Act 1977 (Cth).
• SBBS v Minister for Immigration and Multicultural Indigenous Affairs (2002) 194 ALR 749
• NAKF v Minister for Immigration and Multicultural Affairs and Indigenous Affairs (2003) 130 FCR 210
7.0 Unreasonableness
ss 5(2)(g), 6(2)(g), AD(JR) Act 1977 (Cth).
• Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
• Minister for Immigration and Citizenship SZMDS (2010) 240 CLR 611
• Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618
8.0 Uncertainty
• ss 5(2)(h), 6(2)(h), AD(JR) Act 1977 (Cth).
• Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities (2013) 215 FCR 301
9.0 The Ground of Irrationality
Do you know the following?
There are too many individual grounds here for me to compile a layered list of learning objectives. If you are not sure what to focus on and prioritise in revision, please post a question on the discussion board.
Common Mistakes
• A relevant and irrelevant matter is stipulated by statute – it is something that a statute requires that you take into account (or stop you from taking into account). It is not based on what is logical to take into account.
• An improper purpose has to be based on the object of the statute – you cannot invent some moral or social purpose that has no connection to the statute.
• You cannot claim that someone acted in bad faith just because they decided against your client or they made a stupid mistake. Bad faith is where someone is really really acting in a malicious or dishonest way.
SELF-STUDY MCQs
Question 1. Ling has the power to decide whether Jimmy is going to get his hunting license. The statute states that ‘the decision maker can take into account the applicants hunting experience’. Ling denies Jimmy’s license but did not take into account his hunting experience. Did Ling ignore a relevant factor?
YES – The statute mentions hunting experience and Ling did not take it into account.
NO – A relevant factor is defined as something statutorily required to be taken into account.
Question 2. Mohammed is given a guidebook to help him decide matters. He follows the guidebook carefully without thinking about the facts. Which of the following is Mohammed potentially breaching:
(a) Acting Under Dictation
(b) Inflexible Application of Policy.
Question 3. Suppose a decision maker denies a migration visa on the basis that the applicant has a criminal history. Which of the following is enough to satisfy the no evidence requirements from s 5(3)(b):
(a) After seeking reasons for decision, it is clear that there is nothing that the decision maker considered which indicated the applicant had a criminal history.
(b) The only evidence the decision-maker considered was that a friend of the applicant mentioned “he’s a bad guy”.
(c) The applicant has applied for a police check in all the countries he’s lived in, and they all show that the applicant has no criminal history.
Question 4. Johnny declines to give Farah her hunting license, due to misreading her application as he was rushed for time – wanting to finish work and get to a Justin Bieber concert. Is this a case of bad faith?
YES – he was incompetent and therefore not doing his job in good faith. NO – while he was incompetent, this does not show any kind of dishonesty or
Maliciousness.
Question 5. The statute states that ‘The Minister can only give licenses to men who wear green shirts’. The Minister does not give a license to Tommy because he does not wear green shirts all the time - despite owning some green shirts. Which of the following is correct:
(a) The Minister has acted unreasonably because it is unreasonable to give licenses to those based on what clothing they wear.
(b) The Minister has acted unreasonably because ‘wear green shirts’ includes people who only wear green shirts occasionally.
(c) The Minister has not acted unreasonably because her interpretation is a plausible interpretation of the statute.
Answers.
Qn 1. No
Qn 2. (b). Mohd is not acting under dictation as no one has told him “you have to decide this way” or “you have to follow the guidelines exactly”.
Qn 3. (c). Recall that under 5(3)(b), it is not enough that there is no evidence that applicant has a criminal record. Instead the applicant has to prove that he has no criminal record, and he can do this by (c).
Qn 4.No.
Qn 5.(c). The answer is not (a) – which is an important point: what is reasonable is contextualised to the interpretation of the statute. If the statute itself is ridiculous, then of course the decision of the minister will be ridiculous. In fact, if the Minister in this case had decided to act in a common sense manner by giving people with no green shirts licenses, and instead looked at the experience and character of the applicant, the Minister would be acting unreasonably in the context of the statute. In this case the statute forces clothing to be a factor in granting licenses, so it is reasonable for a Minister to decide licenses based on clothing.
The answer is not (b); although the interpretation in (b) is a reasonable one, the actual interpretation of the Minister still is a fairly reasonable interpretation of the statute.
TOPIC 6: CONSEQUENCES OF UNLAWFUL ACTION
If the applicant can get to this point, s/he has already had standing and has established a ground of judicial review. We now consider what kind of remedies s/he can obtain.
Textbook Reading: Chapter 15 Sources and Materials : Chapter 15
1.0 Generally
• Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355
• Cavo Pty Ltd v Minister for Environment and Sustainable Development (2016) 313 FLR 241
2.0 Prerogative Remedies
2.1 Certiorari
• Craig v South Australia (1995) 184 CLR 163
• Wingfoot Australia partners Pty Ltd v Kocak (2013) 303 ALR 64
• Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
2.2.Prohibition
• Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
2.3.Mandamus
• R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170
• Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319 (the ‘Offshore Processing Case’)
3.0 Equitable Remedies
• Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135
3.1. Injunction
• Schlieske v Minister for Immigration and Ethnic Affairs (1988) 84 ALR 719
3.2. Declaration
• Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
4.0 Remedies Under Federal Statutory Judicial Review
• s 16 ADJR Act
5.0 Choosing Appropriate Remedies
• VEAL v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88
• Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
6.0 Discretion not to Grant Remedies
• R v Commonwealth Court of Conciliation and Arbitration; Ex Parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
Additional Reading
Lisa Burton, ‘Why These Three? The Significance of the Selection of Remedies in Section 75(v) of the Australian Constitution’ (2014) 42(2) Federal Law Review 253.
Do you know the following
Basic Information
• You know what certiorari, mandamus, prohibition, injunction and declaration are.
• You know s 16 of the ADJR Act.
Average Grasp
• You know that for s 16 there is no need to show there is a jurisdictional error.
• You know which grounds require jurisdictional error.
• You know that jurisdictional error is needed for getting certiorari where the error is not on the face of the record, and there is no need for jurisdictional error where it is on the face of the record.
Good Grasp
• Understand why one might want a declaration.
• Understand that there is a difference between s 75(iii) and 75(v)
• Understand that there is a difference between equitable and prerogative remedies.
TOPIC 6 – MCQs
Question 1
If you can show that there has been a jurisdictional error, which of the following remedies can you get (assuming the judge thinks it is appropriate):
Certiorari, mandamus, prohibition, injunction declaration
Question 2
Which of the following is FALSE?
(a) If you want to get rid of a decision you will need use certiorari to quash it.
(b) If you want to get an injunction to stop an action, the action must not yet have occurred.
(c) Declarations are statements of law and a removes the existing unlawful decision of the decision maker.
Question 3
The minister is about to exercise a discretionary power to remove your goods from Port Melbourne but hasn’t yet made a decision. Which of the following remedies should you seek?
(a) Certiorari
(b) Mandamus
(c) Prohibition or Injunction
Question 4
The Minister has made a decision to revoke your license. What remedy should you seek to ensure you keep your license.
(a) Declaration alone.
(b) Mandamus.
(c) Certiorari (and maybe prohibition).
Question 5
A statute enables a Minister to make recommendations about how certain businesses should function. These recommendations have not legal force – businesses subject to the recommendation do not need to follow them. Could a business seek certiorari of the recommendation (assuming that there is standing and some legal error)?
Answers:
1. All of them
2. C
3. C – you are trying to stop the Minister from removing your goods. As she has not done anything yet, there is nothing to quash (no certiorari). Also it is a discretionary power and so you cannot seek mandamus.
4. C. You might want to add things to certiorari like prohibition and even declaration, but a declaration alone will not get rid of the revocation. Also until you remove the certiorari it is unclear what you would be forcing the Minister to do using mandamus; and presumably after you quash the removal there would be no need for mandamus as you already have the license.
5. The answer is NO. Remember certiorari can only quash the legal effects of decisions. If the recommendations have no legal effect then you cannot seek certiorari.

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