Administration Law in Australia - Assignment Example

Name: University: Course: Tutor: Date: Administration Law Q1.) Winnie and Sally have been involved in discussions of sally wanting to build two clinics in South Canderra in 2010. Administration law in Australia is highly regarded by the extreme powers that the Australian government administrative agencies possess1 and their sole responsibility2. The case of Winnie is a best example of the definition of the Australian law. The appropriate advice which I will give Winnie is to file an urgent application which will review the decision of the head of department Sally that would be held at the Administrative Appeals Tribunal. When making the application Winnie should specify the urgency of the matter and need for there to be an immediate stop on any action of Sally on constructions of the two clinics. The legal backing of the urgent application for review which relates to decisions made by sally will be supported by Administration Appeals Tribunal At 1975 section 253. This section authorizes the tribunal to make decisions which conferred upon offices as provided by the law. The status quo will remain as specified by Section 41 of the Administrative Appeals tribunal Act 1975 for it will prevent the action or implementation being planned by Sally. Sally’s actions are administratively actionable and the misdeeds must be restricted without any further delay. Although Sally action is backed by the law which is based in Health Act of 1958 section 16 that directs the ministry of health to be able to delegate to its officers to establish clinics for women in regions with immigrants women in place. However, the place which Sally is setting up the clinics does not have supportive research that signify the place has immigrant women who would prompt it be illegible to be built a clinic there. Administrative Decisions (Judicial Review) Act of 1977 Section 13 provides the provision that the reasons must be given on request for someone who has the right to apply for judicial review like what Winnie requires to do in this case. Using this act she should provide the reason on request to the person who has the right to apply for judicial review of the decision made by federal court or federal magistrate’s court4. Sally also denied Winnie the right of government information which is free and is mandatory that government official issue out the information to public whenever in query over matters that have to be addressed that concern the well being of the public in this case being the medical welfare of the public although migrants they are recognized in the system of administrative law. Sally broke the law that Australia government loosely follow of Westminster system, which advocates for the democracy in responsibility and accountability in all government dealings. Winnie should go to the office of Ombudsman and file for the above claims under the Kerr report in the Australian government, a tribunal that would review the administration decision from one sally can be reviewed and if they find the merit of sally conduct to be not worthwhile revoke the tender and channel it in the right direction, Winnie’s grievances against sally should be, before the tribunal; Abuse of office Violation of freedom of information act 1982 Violation of simple ultra Vires Procedural unfairness The Kerr report that recommends establishment of tribunals that look at the claims of abuse of office in administration matters, decisions on the merit, procedural and codification of reforms systems of reviewing judicial (judicial review act 1977), (administrative appeal tribunal act 1975), (Ombudsman act 1976), and (freedom of information act 1982). Under the umbrella of this acts Winnie would get the best reasonable and legal action of stopping Sally and help lot of other immigrants in getting the proper medicinal attention that are required5. Also Winnie can challenge the administration action perpetuated by sally in the administrative decisions (judicial review act 1977) in the common law system which is performed by the ordinary courts of the land. The AAT or Administrative Appeal Tribunal act 1975 its most significant role is reviewing merits and holds the right to ascertain reasons behind decisions. Under this tribunal Winnie and the rest would be heard and her case against Sally would be assessed and reviewed and according to the nature of sally’s arrogance she would be awarded the reallocation of the clinics from south to north. Misconduct and abuse of office charges which are very relevant6 and essential to this case can also be implemented so as to change the face of the administration under which Sally umbrellas with malice and selflessness without consideration of other humans, although immigrants Winnie is entitled to right to access medical attention. Q2.) Both Ann and Badi are being convicted after they were found breaking the by law which prohibits display of certain types of materials within university premises. According to Section 12 subsection 2 of the bylaw of the University it prohibits display of certain types of materials within the university premises which Ann and Badi has defied. Although both Ann and Badi had good in faith mutual support and motive of improving the students condition and burden at the university from the federal government’s cut of budgetary support to the universities. I would say was ill advised because she knew the protocol that one had to fore go so as to attain the merit that she wanted aired out and straightened, though am only considering the legal method which would have been thwarted by the chancellor and the board on recommendation, she would had first tried it this way then if the participants of the board don’t give heed take the matters on her own hand and advocate for the e-mailing of boycotting action from all adherence of the faculty7. According to Section 51 of the Australian Constitution it mandates its parliament which is empowered to enact statutes of order, peace and good governance and are the only organ which is mandated the powers to create new offences or crime8s. Although the university council has the rights to constitute their laws they are confined within their mandate even formulation of the fines or any dispensary actions which should be done. The university council restrictions of displaying certain materials in the campus violate freedom of expression/speech and it is contrary to what the Australian High Court declared in 1992 which emphasized on the right to freedom of expression9. Badi on the other hand did a rational thing by abetting Ann in e-mailing and breaking the faculty two offences; section 12 clauses 2 of sending or displaying material within the faculty that may bring unrest and without the orientation from the faculty heads and section 3 that defines a student or any other person ordained to pursue learning in the faculty. Badi being an ex-student I not recognized as a student at the faculty so his interference of the matter greatly adds weight to the legal persecution that the police hold against them both. That being the negative side of things there is the real good in all of this, knowing well or Ann’s intentions can be justified by the aftermath that could have resulted because she did not act on merit that could bring damages to the faculty, and on the clause of act that the faculty principles are based, touch an element of section 4 of the act which clearly indicates the object of the faculty (university). And the essence that objects aim is to uphold the right of the faculty to pursue the quest for and the freedom to disseminate knowledge. According to my own revelation or according to my own gospel, the faculty main aim is bettering the education of the principals with common interest to getting education and knowledge and guiding the well condition of the learning sphere of the students. When federal laws stripped the allocation of funds that supported student in the matters concerning tutorial fees, the heads of the university should have been the first to react so as to show care for the welfare of the student, Ann statement worried the vice-chancellor because of the weight and truth that it had, the learned fellow knew that the repercussion were going to turn ugly and threatening for the boycott also showed lack of good leadership among the university in the Australia, lack of unity and welfare of the student attached to this faculties and lack of leadership competence among the vice-chancellors in the system that can stand to the government and demand explanation from AAT and the judicial reviews about the wellness of the administration report or the act imposed and has effect and causes unrest among the student in the faculties. Ann leadership traits are best example of a go-getter and this although might have cause damages and riots among many university should be a best example to the chancellors of university all over the world to act upon matters that affect the smooth learning of the faculties, if its were their salary been cut or reduction of allowances the student would have chipped in the campaign but why not hear and advocate to what also is good for the student. I plainly support Ann decision and Badi’s effort in creating awareness that would result to benefitting the student welfare. I would advice both to appeal their case with the AAT tribunal and let them hear their grievances out, also call for intervention of procedural fairness (natural laws) so that the judiciary may see the weight the student have to bear in the implementation of this act. Q3.) Job and Bob had a verbal agreement that John will build a small shed for Bob and Bob was supposed to bring materials to facilitate the work. This act allows the court to direct payment of damages of worth not exceeding $10,000 to the plaintiff in a civil law suit. The act defines the damages to be paid for, as provisions and not order of specific performance of the provision10. Because of Bob acquisition to my own knowledge was not equitable before the law, so I would advice Bob to challenge the ruling of the court on grounds that the bureaucratic decision of the court was bias because the section 16 of small claim act clearly states that, damages worth compensation be defined as damages and not order of specific performance. This clearly show obstruction of justice by the administration of judiciary either knowingly or arrogantly and in most cases if favor was advocated for and incase of bribery or corruption. The bases of the ruling are not clear in terms of the law, which is supposed to uphold just remedies for the affiliated parties. First I would advocate for Bob to appeal with AAT and refer the matter with Ombudsman for further investigation if there was any corrupt involvement in obstruction of justice and to the judicial remedies under the umbrella and subject to the judicial review act 1977. I would also advocate that Bob appeal be based on the legal matters of verbal contract which has no much basis in a court of law because there is no physical evidence, further more the promise they had both agreed on had a basic time limit as to when John would finish the chore. The time factor is a real advantage also in our case against John whom in the meeting of mind never set the time limit to which he would void the agreement and so that Bob would be held violating of a contract. The Ultra vires in the case leaves a lot of question marks as to why John was awarded the damages on what basis did the judiciary use to award the damages. Bob can be excuse in this case first by mistakes in the contract as mutual or common mistakes if the court saw these as a contract, the contract was incomplete and lacked time limit, on my defense first I would advocate that Bob denies that he refused to provide for the material and say the he had no financial support for the project, which again is excusable by the law on matters of the contract. The court ruling however in the light of the matter and how the case was presented show clear abuse of power, the court ruled against its fundamental clauses that are stated on the clause of small claim acts section 16. This twisting of the arm of law is very dangerous and should the appeal court award the remedial victory to Bob then the judge who handled the first case should be thoroughly scrutinized that he/she may uphold law without favor. I would advice Bob to sue the judiciary system for improper conduct and malicious ruling against the clause of the law which is supposed to act as a guideline to the court. Procedural fairness was here rated zero and I would advocate we appeal on grounds11 of this lines against John and the law system that wrongfully awarded the plaintiff enrichment damages which should be termed as fraud in the eyes of the law under rightful compensation of damages in a verbal contract which was not complete12. The court which emphasizes its flexibility character (chameleon like character as one Justice Brennan referred it) in it rule is here not seen, but maliciously exercises the opposite, forgetting that it’s Bob right for a fair hearing and verdict, and therefore denied Bob justice. Q4.) Administrative Decisions (Judicial Review) Act 1977 is by its nature a remedial legislation. On the first case between sally and Winnie we saw that the abuse of power in administration of government is very eminent despite all the tribunal being put up to combat the vice of power abuse and office abuse among members that hold high offices in the ranks of government administrations. Those who perpetuates that vice lock information material and making decision based on their own liking not considering the aggrieved or those that need the attention of the resources been shared out. Racism is seen in the official government administrator Sally when she confronts Winnie and scolds her saying that she has no obligation telling or giving her information concerning13 the administration to an immigrant. The government and the judicial review should allocate more resources to tribunal like the AAT and Ombudsman and fund others non governmental organizations so as to look at the well being and the smooth running of government project so that they not be marred with racism and selfness in decision making that affect the lives of the people that the government supposed to protect. Sally should be charged with section 75 of the constitution of Australia. In the case of Ann and her friend Badi the university and the laws that govern the faculty should adhere to the right of information among the student in that perimeter. The judicial remedy I would advocate for in this case is that procedural fairness was not sought before apprehending Ann and Badi, although Ann had been summoned and refused to go hear the vice-chancellor out but the same remedial stance he took would still had taken effect in the case of Ann complying with the elders calling. The police apprehended Ann and Badi without even investigating the matter and giving them a reason of doubt in their case, the vice-chancellor rational decision making without first consulting the student on how they felt against the effect that the federal government had brought to the students burdening them with financial difficulties. The university had done nothing and was still using by laws which are dated way back and they crash with the modern clauses and bill enacted by the laws of the state of Australia. The faculty by laws advocates for no freedom of information14 among students and any grievances are taken to the vice-chancellor and thwarted there and no remedies are offered on behalf of the students. Although Ann and Badi took matters at their own hands because the system of the faculty had failed them and education which is considered the key to life would have been elusive to many who cannot afford to meet tutorial fees, because of the federal government budgetary support cut for the university. The faculty system failed the student where they needed it most support for the welfare of the learning and affordability of tutorial fee15, the federal government decision to cut support for the university should also be brought to the courts of appeal and that decision be investigated by Ombudsman and the AAT hear out the aggrieved students pleas. The case that really twisted the arm of the law is the one between Bob and John, with John wrongly enriching himself with damages allocated and compensated wrongfully in the court of the law. The justice that advocated for the case and gave out ruling against Bob, showed lack of expertise in the field that he/she is properly educated and ordained to perform without malice or favor and abuse of power giving out compensation against what the law act of small claim clause states that “damages of provision16 are to be paid but orders of specifics of provision are not awarded compensation”, and the justice knowingly gave out compensation to the plaintiff with consent of the above. The latter also under sued with malicious damages and ruling under clause 75 of Australia by laws and John for improper enrichment and fraud of the contracts. References 1.) Books and Articles Allars M, 1909, ‘Introduction to Australian Administrative Law, Sydney, Butterworths, Douglas, R & Katzen, H, 1999, ‘Administrative Law’, Sydney, Butterworths Dyer, B & Aronson, M, 2004, ‘Judicial Review of Administrative Action, Sydney, LBC Information Services Finn P, 1995, ‘Essays on Law & Government’, Sydney, LBC Information Services Fleming D & Tomasic R, 1990, Australian Administrative Law, Sydney, Law Book Company Ltd Jennings, I, 1967, ‘The Law and the Constitution’, London, University of London Press Robson, A, 1951, ‘Justice and administrative law: a study of the British constitution’, London, Stevens & Sons Ltd Roger, D, 2006, ‘Administrative Law’, Sydney, The Federation Press Wettenhall, R & Halligan J, 1992, ‘Hawke '5 Third Government: Australian Commonwealth Administration. Halsbury’s Laws of Australia, Vol 1(2), Sydney, Butterworths 2.) Cases Administrative Decisions (Judicial Review) Act 1977 (Cth) Carlill v. Carbolic Smoke Ball Co. [1893] Q.B. 256 (C.A.). Diamond Fruit Growers, Inc. v. Krack Corp., 794 F.2d 1440 (9th Cir. 1986). Empro Manufacturing Co., Inc. v. Ball-Co Manufacturing, Inc., 870 F.2d 423 (7th Cir. 1989). Fischer v. Union Trust Co., 138 Mich. 612, 101 N.W. 852 (Mich. 1904). Hamer v. Sidway, 124 N.Y. 538, 27 N.E. 256 (N.Y. 1891). 2.) Others Administrative Tribunals Act 1975. Common Wealth Consolidated Acts. Accessed December 20, 2009. Available at: < http://www.austlii.edu.au/au/legis/cth/consol_act/aata1975323/> Australian Freedom of Speech Laws. [internet] Accessed December 20, 2009. Available at: http://www.hrcr.org/safrica/expression/freedom_speech.html. Section 51. Legislative Powers of the Parliament. Accessed December 20, 2009. Available at: http://australianpolitics.com/articles/constitution/chapter-1-part-5-powers-of-the-parliament. Read More