The Policy Decision of the Torres Strait Islander Commission - Assignment Example

 Admin Law – Part 2 The policy decision of the Torres Strait Islander Commission in this case was that 80 percent of its land acquisition fund would be set aside for the purpose of purchases of land that was in the Northern Territory. (a) The reason for the ASTIC decision may not be recorded on file and when there is a lack of evidence, it may be difficult to establish that a legal error has occurred1. Therefore unreasonableness must be assessed by examining whether the decision is untenable in some other legal context. If the decision of the Commission is to be deemed reasonable, then it should be difficult to challenge on grounds of unlawfulness, but in this case it is not difficult to identify the legal error the administrator has committed. The decision of the ASTIC sets aside a very large share of funds for purchases of land in only one particular territory or jurisdiction to the detriment of other States suggests unequal or inconsistent treatment, which is not in accordance with Government policy that calls for equitable distribution across all jurisdictions. Therefore, unreasonableness in this case would be definable since it could be deemed as such by a Court2 –it could fit the Wednesday test of behavior so unreasonable that no reasonable decision maker would have done so according to the law of the Commonwealth which seeks relative equity among jurisdictions.3 Unless decision makers can provide good reasons for differential treatment, for different groups, policy decisions could be invalidated due to unreasonableness4. Therefore, the argument that the Commission’s decision was reasonable may not be sustained, since the differential treatment to different groups automatically renders it unreasonable. (b) If the ATSIC had gone ahead with its plans and distributed the aggregate funds to achieve equity, the behavior could still be deemed unreasonable and flawed on account of the fact that it did not take into account Government policy, which is to limit the degree to which alienated crown land can be converted to inalienable title. The manner of distribution of funds would be a flawed expression of Government policy, despite an equitable outcome. Moreover, a disproportionality between the existence of powers and the improper administrative exercise of those powers could result, which could make the decision subject to judicial review because it is equivalent to unreasonableness.4a In the case of Prasad, disproportionality was inferred between the costs of taking an action and the costs of failing to do so. Both the administrative bodies ATSIC and ILC would have been guilty of improper administrative exercise of their powers, through the disproportionality created by their failure to take the action mandated by their powers and the costs of taking arbitrary action on their own, unauthorized by Government. On this basis therefore, for the two organizations to arrive at a private arrangement of their own would a violation of the decision making powers attributed to these organizations and could be subject to review. (c ) Government policy is important for a body like the ASTIC, especially where the issue of reasonableness of policy decisions is at issue, since this body would come under the purview of a federal claim, despite being an independent body. In the case of New South wales5 a federal claim was deemed to be a valid one if it was not colorable, trivial, insubstantial or unarguable. This case firmly established the fact that a failure to take account of Government policy would render a policy decision flawed. Therefore a policy decision that creates differential treatment to different groups or allows greater favors to one group would be deemed to violate established Government policy and could be deemed unreasonable and subject to review. Q2: page 198: (a) The joint statement threw into confusion the question of legitimate expectation created undertakings functioning under a ratified international treaty. Legitimate expectation creates a substantive interest which mandates that a Government body act in a procedurally fair manner6. General statutory principles of law should be interpreted in accord with Australia’s international treaty obligations to the greatest extent possible7. However, the effect of the joint statement that reverses the decision in the Teoh case appears to suggest that the Government was reacting to the possibility of the Teoh case allowing rights and obligations to individuals as a consequence of ratification. The actual result of the Teoh case however, only dealt with legitimate expectations that could be created and the need to ensure that Government bodies cat in a procedurally fair manner. (b) Deane J, in the case of Minister for Immigration and Ethnic Affairs v Pochi has suggested that decisions based on a lack of probative evidence could amount to procedural unfairness8. Therefore, the existence of a legitimate expectation through ratification will impute such a duty to ensure procedural fairness on the executive body. However, in the Teoh case, the Government, in justifying its decision to reverse the Teoh case has pointed to the administrative difficulties in implementing a decision that imposes a duty of inquiry upon a decision maker, through the finding of a legitimate expectation in the Teoh case. Therefore, from a political perspective, there is an implication that ratification of international treaties cannot necessarily create rights and obligations which can be availed of by citizens. The High Court had held in this case that there was a legitimate expectation that had arisen in this case as a result of which procedural fairness of the decision could be questioned. However, from a judicial perspective, it may be noted that the decision does not specifically state that a legal right or obligation arises on the part of the decision making authority, what arises upon the finding of a legitimate expectation is the opportunity to put forward a case9. Therefore the authority is expected to ensure procedural fairness and that adequate opportunity is provided to the plaintiff/appellant to state their case, concomitant individual rights that spring from Australian citizenship, not the act of ratification.10 (c) The Lam case involved similar circumstances as the Teoh case, however in this instance the best interests of the children had also been taken into account by the Government department, hence no procedural unfairness existed. Subsequent to the Lam case it was therefore established that even if a legitimate expectation was created, the question was whether the applicant had relied to his detriment on such expectation and if he had not, then a legitimate expectation is not a mandatory condition requiring procedural fairness by the Government authority. This has therefore, cleared the grounds on the administrative limitations in implementing procedural matters in accordance with the existence of legitimate expectations created from ratification of international treaties in Australia. Read More