Administrative Law Advice - Assignment Example

Administrative Law-legal Advice. (Author’s name) (Institutional Affiliation) Question 1. Jurisdiction of the Federal Court. Section 61 provides that where a person has engaged in conduct for the purposes of making a decision, to which the Act applies, an aggrieved person may approach and apply to the Court for a ruling on review. Section 82 provides that the Federal Court has the authority and jurisdiction to listen to and determine submissions made to it under this Act. In this regard, the Federal Court has jurisdiction. The interlocutory relief should Bluepeace seek under the AD (JR) Act? Section 163 confers the Federal Court with powers, to either order quashing or setting aside the decision. It may also order any of the parties to do or refrain from doing any act. In this regard, Bluepeace may seek interlocutory orders to quash the decision or set it aside. It may also seek an injunction to stop Ruritania from acting. Would Bluepeace have standing to obtain that relief? In Australia Conservation Foundation v. Commonwealth,4 the court held that ACF had no locus standi to sue. The courts however, take additional considerations in environmental issues. For instance, a group must demonstrate that it is representative of an important public concern and they have established interest in the area. Bluepeace is the peak interest group for marine protection in Australia and thus they meet the threshold. Among the other factors that courts take into consideration is the importance of the issue at stake.5 The issue is indeed important because damping of radioactive waste poses a risk to Australians. Question 2. Grounds of review that might form the basis of the application for final relief under the AD (JR) Act? What is the likelihood of the grounds being made out? The AD (JR) provides that a person who is not satisfied or is aggrieved by a verdict to which the Act applies may make an application to the Court for an order or review in respect of the decisions. The Act further lists a number of grounds that one may seek for a review or order.6 For instance, a person may seek on grounds that the breach of the rules of natural integrity and justice has arisen or is likely to arise in connection with the conduct. Also, that the making of the anticipated verdict would be an unacceptable exercise of the power bestowed by the ratification in pursuance of which the verdict is proposed to be made. Another ground is that there is no indication or other proof to justify the making of the proposed decision. In order to obtain a review of a decision a person must be able to demonstrate and show that he is aggrieved by the decisions and that the decisions is one which the Act applies.7 The grounds outlined by the legislation are limiting to Bluepeace and they might be difficult to make out. This is because; Bluepeace is not an aggrieved party rather an interest group for marine protection. The group is acting for the general public. Despite the situation, Bluepeace should support its case using common law which has evolved significantly because it incorporates other grounds for review. For example, the capacity of the interest group to mount a challenge that is effective and the constitution or objectives of the group8 are two common law grounds that Bluepeace satisfies. What specific orders should be sought under the AD (JR) Act? Prepare a draft of the orders in the form in which they might issue if granted by the Court. As already stated, Section 169 outlines the orders that Bluepeace might seek in Court. In my considered view, Bluepeace should seek the specific orders of prohibition or Certiorari. A certiorari order will set aside the decision by the minister to grant the permit. The Federal Court of Australia grants an order of Certiorari to set aside the grant of permit to Ruritania to damp radioactive waste on the grounds of safety to human health, safety and the marine environment. Would the Court be likely to grant relief? In my view the court would be likely to grant relief because Bluepeace has gathered evidence from the ground and they have consulted an oceanographer on the issue. The environmental risk posed to Australian is a cause for alarm. As the peak interest group for marine protection, their position is significant. It regularly makes submissions to inquiries concerning marine environment.10 Bluepeace has made past submissions to government in related areas thus, the court will grant relief based on this fact. PART B. Question 1. “Annezza Allworthy — File Note” Date: 1/09/2011. Client: Annezza Allworthy. From: Free Hills. File code: CC/2/2011. Type of File: Legal Advice. ‘The law permits the burring of bodies at sea. A sea dumping permit is required. The disposing of a body at sea is regulated by the Sea Damping Act. The Department of Sustainability, Environment, Water, Pollution and Communities administers the Act. An application on a prescribed form must be lodged to Environment Australia for a fee of $1000’. Are there any ethical issues raised by the request by Annezza for legal assistance? In my considered view, there are ethical issues raised because Annezza first attempted to bride a public official so that her application may be dealt with favourably. The Australian Criminal Code Act of 1995 under Division 141 prohibits the bribery of Commonwealth public or state officials. The provision prohibits the benefit on an official with the intention to influence their exercise of state duties as a Commonwealth state officer. If Annezza attempts with your assistance to use non-legal avenues of redress at this stage, what is the likely outcome? The likely outcome is that, I will approach an officer at the Department who can authorize a permit, probably bribe the officer to hasten the process and acquired a permit to dump the body at sea. Annezza will have to incur costs to bribe the officer as well as make payments to me as her lawyer for the trouble and risk to my career. Question 2. Would the grievance fall within the jurisdiction or mandate of the Ombudsman? The jurisdiction of an Ombudsman in Australia is spelt out in Section 5.11 The Act provides that an Ombudsman shall investigate an action that relates to a matter of administration by a Department or by a prescribed officer or authority and in relation or respect of which a grievance has been made. The complaint would fall with the jurisdiction because it relates to a Department (Pearce 2000). Would the Ombudsman be likely to investigate fully the complaint? In my considered view, an Ombudsman might not be able to investigate fully because he or she is required by law to first inform the Department of the investigations.12 Assuming the Ombudsman would fully investigate Annezza’s complaint, what would be the likely outcome of the investigation? The investigations by an Ombudsman will reveal that indeed an application was made to the Department for a permit to bury at sea. The law does allow for a body to be buried at sea subject to the grant of a permit. The permit is generally granted to persons who have demonstrated a connection to the sea such as fishermen. The investigations will also reveal that $2000 was sent by Annezza to the Head of Department alongside a note. Assume the Ombudsman would make recommendations in Annezza’s favour. Draft two recommendations. The Ombudsman's role is to scrutinize the internal investigations and ensure that they are conducted accurately. Following the investigations and deliberations the Ombudsman recommends, that the permit to bury John Brown’s body at Sea be granted in agreement with the law. It is recommended that $1000 be returned to Annezza because the required amount for a permit is $1000 and not $2000. Question 3. If Annezza makes an application to the Administrative Appeals Tribunal, what decision would she be seeking to have reviewed? Would the Tribunal have jurisdiction to conduct a review on the merits? An application by Annezza to the Administrative Tribunal would be for an order of Mandamus which would compel the Department to grant her the permit to bury her late husband. Under Section 2413, the Tribunal lacks jurisdiction to review on merit because it relates to the grant of a permit. The jurisdiction of the Tribunal is ousted in matters relating to permits. Assume the Tribunal does have jurisdiction, and that the matter is not settled but proceeds to a final determination by the Tribunal. What final decisions will the Tribunal likely to make? The Tribunal as an independent body will conduct reviews on merits on administrative decisions made by officials and authorities. In this case, the Tribunal will make a declaration of the rights of Annezza in respect to the permit. This is because as stated, permits are usually granted to persons who were connected with the Sea such as fishermen. Following the declaration of rights, the Tribunal will issue a mandatory order against the Department to grant Annezza the permit. Assume Annezza is successful in whole or in part before the Tribunal. Draft the formal decision of the Tribunal. The Administrative Appeals Tribunal grants an order of Mandamus against the Department. The order compels the Department to grant the Annezza’s application for a burial permit at Sea. PART C. Question1. Does it matter that the declaration is not on the Register? Indeed it does matter that the declaration is not on the Register. The Register is a repository of Legislative Instruments of the Commonwealth, explanatory statements and ministerial declarations. They are all published in the Register which is the most authoritative resource of information for certified official documents such as legislation, statements and declarations. Publication ensures that the information is accessible to the public. Question 2. If the company makes a request in writing to the Minister for the reasons for the Minister’s satisfaction that gold tailings are material that is capable of causing serious harm to the marine environment, is the company entitled to be given the reasons? Section 41(3),14provide that prior making regulations that prescribe material for the purposes of paragraph (b) in Section 4(1) as seriously harmful material, the Minister must first be satisfied that the materials are indeed capable of causing grave and serious harm or damage to the marine or aquatic environment. A minister is required by law to publish decisions made in the Gazette notice. In the official notice the Minister is expected to state his reason for the decision. The minister is supposed to be satisfied that gold tailings are capable of causing serious harm. The means of arriving at the decision are supposed to be outlined as well as the investigative report that was carried out. The company is thus entitled to be given information for the Minister’s decision. What legal mechanism is potentially available? Section 24(1)15 the company may make an application to the Tribunal on Administrative Appeals to assess and review the decision of the Minister. The Tribunal will issue a declaration of rights the company has to be educated of the raison d'être for the decision. Draft request for information in a way which meets the company’s objectives. Strike-it-Rich Pty Ltd humbly requests the Administrative Appeals Tribunal to declare the right to information from the Minister concerned regarding the decision declaring gold tailings capable of causing harm. Would the government be able to refuse the request? Upon what bases might it be able to refuse? The government may or may not accept to comply with orders made regarding the request for information. The Administrative Appeals Tribunal however has jurisdiction to review decision of Ministers and its decisions are binding. The base that the government might be able to refuse the request is for matters concerning national security. PART D. Question 1. What ground or grounds may be raised to challenge the decision? What likelihood is there that the ground or grounds may be proved? Seashore Developments Ltd may apply for review of conduct on several grounds. The company may state that the revocation breached a rule of natural justice which requires both parties to be heard. In this case prior to revocation, the company should have been given a chance to make its case. Another ground would be that the procedures required by law to be observed in respect of the revocation were not observed. That the making of the decision would be an unacceptable exercise of the power granted (Head 2008). Also that fraud has taken place in the course of the decision. The grounds might be proved by indicating that the Delegate who revoked the permit is a major shareholder in a marina which had initially lobbied against the grant of the permit. Question 2. Would the Tribunal have jurisdiction to review the decision? The Tribunal lacks jurisdiction by virtue of Section 24(1)16 as relates to the grant of a permit under Section 19(7)17 and Section 34(2)18 as well. The limitation in Section 19 ousts the Courts jurisdiction. Will the Tribunal be likely to determine the merits? In my considered view, the Tribunal is likely to determine the merits of the application. This is attributable to the fact that the Appeals Tribunal has the full capacity and authority of a Court of Law. Assume the Tribunal will determine the merits. What inquiries, made on behalf of Seashore Developments, which may lead to new evidence being placed before the Tribunal, are desirable? An inquiry into the revocation of the permit without any warming to the company might lead to new evidence. The fact that there was a conflicting interest from the delegate who revoked had major shareholding in a marina that had lobbied against grant of the permit. The final decision the Tribunal is likely to make. The Tribunal is expected to make a decision that is based on the facts, details and evidence from both sides. On the grounds stated, the Tribunal is likely to order Certiorari to quash the revocation of the permit. In my view, the Tribunal should conclusively evaluate the report on the sample of sediments. The Tribunal will also need extra information regarding the Delegate’s shareholding in the marina and whether it influenced his decision to revoke the permit. References. Books. Head, M. (2008). Administrative Law: Context and Critique. (2nd Ed.) Annandale, NSW: Federation Press. Pearce, D. (2000). Ombudsman in Australia. In: Gregory R. & Giddings P. (Ed.) Righting Wrongs: The Ombudsman in Six Continents. Amsterdam: IOS Press. Journal. Fisher & Kirk. (1997). Still Standing: An Argument for Open Standing in Australia and England. The Australian Law Journal 71, 370-380. Cases. Australia Conservation Foundation v. Commonwealth (1980) 146 CLR 493. Australian Institute of Marine and Power (1986) 13 FCR. National Trust of Australia (Vic) [1976] VR 592. North Coast Environment Council (1994) 55 FCR 492. Legislation. Administrative Decisions (Judicial Review) Act of 1977 (Cth). Criminal Code Act of 1995. Environment Protection (Sea Dumping) Act of 1981. Ombudsman Act of 1976. Read More