Administrative Law, Judicial Review - Report Example

Administrative Law - Judicial Review [Name] [Professor Name] [Course] [Date] Administrative Law: Problem Solving The power of the court to review administrative action is a vital aspect in the rule of law. It involves the means by which an independent judiciary is summoned upon to establish whether an executive government arm has acted within its jurisdiction to exercise executive powers as dictated by the law1. Overall, the Minister of Industrial Development, who also served as the government representative, stood to have his decision withheld or upheld on account by a judicial review – as challenged by The Co-op. In addition, his decision to have the paper pulp mill plant built on the Collie River in Bucolic Valley in south-west WA stood to be prohibited. Judicial Review In all, judicial review proceedings serve to establish whether an administrative tribunal has acted in accordance with the law. If a Minister is determined as having acted in excess of its mandate, then his decision may be invalidated and termed as inappropriate exercise of power. Nonetheless, the fundamental assumption of judicial review is that in spite of the law that a power had been conferred on the administrative unit, as long as it complies with the jurisdictional limitations as specified by the law, it will be held as free to exercise power as it thinks it fit2. The decision is echoed in the statement that judicial review is concerned with the restrictions of legitimacy and not with the decision’s merits. It is also concerned with the legitimacy of the decision actions, which is the primary province of the courts. In addition, the doctrine of the separation of powers is protected within the federal Constitution. In the case scenario of the Bucolic Organic Farming Cooperative’s (the Co-op’s) the decision to challenge the minister’s action, the principle rules that The Industrial Development (Fast-tracking of Proposals) Act 2010 (WA) must in itself have some limits. This means that the Minister’s decisions which were based on “the Act” stand to be reviewed, even if they met the criteria as the Act stipulated. However, the judicial review cannot avert the improper decision that the Minister may have made concerning the establishment of the paper pulp mill. On the contrary, since it doesn’t serve to prevent wrong decisions, it only prevents them from being made unjustifiably despite of the fact that the judge who reviews the decision action has arrived at a conclusion that is unique from that of the administrative unit (or the Minister). Further, the decision can only be impeded if there is proof that that some illegality existed in the process by which the decision was made thus calling for identification of the grounds of review. Judicial review proceedings have often been carried out in an adversary form, often between the government officer who played a role in upholding the decision and the party that suffered grievances resulting from the administrative decision. Concerning the statutory power with regard to the Bucolic Organic Farming Cooperative’s (the Co-op’s) the decision to challenge the Minster minister’s decision, the right respondent would be defined by statute. Indeed, the minster stood to be challenged. This forms the basis of the argument that the trial is not a way of appeal and the grounds of review rely on the need for the Minister to comply with the limitations of the judicial review. Grounds of Review Generally, the grounds of judicial review call for separate consideration. Before examining them within the context of The Co-op and the Minister’s case, it is important to first review the “errors in the fact” regarding the jurisdiction of the latter3. a) Errors Even as errors exist, the court cannot correct the steps of the decision-maker. They are still regarded as errors within the decision-maker’s jurisdiction, which the Minister is responsible for improper decisions with regard to establishing the paper pulp mill. Classically, these factual issues are issues that are entrenched on the merits of a decision and not its legality. However, judicial jurisdictional facts are treated differently4. Additionally, whether the Minister has a jurisdiction or not is a question of law and thus still open to judicial review. With regard to the term jurisdictional fact which can be defined as the satisfaction that activates the decision-maker’s power to exercise discretion, it can be argued that the case of The Co-op and the Minister’s case falls within this criterion as the former was in a position to cite some errors, such as lack of clear judgment from the Minister’s decision given that Co-op AEIR was likely to emit some effluent from the pulp mill that would pollute the Collie River and the possibility of the toxic airborne by-products of the pulping process contaminating the agricultural land in Bucolic valley. This would make it impracticable to continue certified organic farming in the Valley. In all, since a jurisdictional fact entails the truth that must exist impartially to activate a decision, a court that expects to carry out a judicial review may have to look into the evidence that never existed before the initial decision-maker when making a decision on the jurisdictional fact that exists5. Improper purposes The law requires that administrative units or departments must make their decisions in good faith as well as for the right reasons. Thus the decision-maker must be cautious not to abuse power. In other words, the decision must be reasonable and should be in good faith. For example, in the case Thompson v Randwick Municipal Council (1950) 81 CLR 87 that involved a challenging the council’s decision to over land matter – to improve and beautify the area by building new infrastructures6. However, the council acquired more land than primarily intended. After challenging the decision action, the court held that the Council abused its powers and that it had acted in bad faith. The case of the Minister’s decision calls certain improprieties to attention. It can be argued that the decision was not in good faith. For instance, since the proposed mill site lies within the Minister’s own electorate, it is possible that there must have been bias in his decision, as the decision to have the mill established was to his political leverage since she held her seat by a small margin. The timing was also questionable as WA State election were 6 months away. To further justify this, the Minister had recently commissioned polling of his electorate that indicated her constituents’ main concern was the need to construct a sustainable economy in the south west to job opportunities. The main rationale behind establishing the paper pulp mill is that it would offer more employment opportunities. These several factors called to question the integrity of the Minister. Besides, although some legal scholars have suggested that it may be difficult to prove bad faith than to demonstrate that the decision action was intended for unreasonable purposes, a commonly quoted definition to this effect is lack of a genuine attempt or honesty in carrying out the task and includes making a personal attack on the integrity of the decision-maker. Relevant and irrelevant consideration In this regard, the decision-maker is termed as having regarded or disregarded relevant procedure or criteria while coming up with the decision. In the case of the Minister’s decision, two issues do arise. The first involves establishing whether the criteria or considerations is proper and the second entails their characterization to whether they are relevant or irrelevant. On the issue of characterization, a consideration is viewed as relevant if the stature that confers the decision-maker certain powers demands that the matter be taken into consideration7. It is however irrelevant when there is a prohibition that impedes it from being taken into account. Indeed, the statute by the Ministry was not specific on how the power should be exercised. This left the prohibited considerations to be picked up from the purpose of the legal provision. It can hence be expressly stated that the statute failed to take into account relevant and irrelevant considerations calling for its review. The concept of unreasonableness In the context of the judicial review, the term unreasonable is applicable when certain legislation is valid on account of the administrative arm followed the basic statutory opinion8. In the case Foley v Padley9, the High Court had to consider whether a bylaw was valid under the Rundle Street Mall Act 1975 (SA) that forbade distribution of anything inside the Mall unless permission was sought from the Council. The court considered the likelihood that the by-law could be invalid as the council had failed to establish the necessary statutory opinion. For instance, it was viewed that the distribution of commodities had the potential to affect enjoying using the Mall. In the same manner, the Ministry’s subordinate legislation can be termed as unreasonable. This is because Ministry may not have formed a necessary opinion10. Besides, The Co-op had proof that the paper mill would affect the place’s environment. This is evident when The Co-op presented an alternative environmental impact report (AEIR) to the Board, which “argued contra to the environmental impact report submitted by Pulp in support of its mill proposal, that the mill will had a substantive negative impact on the Bucolic Valley environment.” In conclusion, even as the grounds of judicial review hold, the reasons for change are basically speculative. Protection of legitimacy is the most significant principle that underlies judicial review of administrative decisions and actions. In any case, an individual who seek judicial review of the decision or action by an administrative unit must be able to persuade the court that grounds for judicial review exist if the legality of the decisions have to be challenged. The administrative law has come to identify a number of categories of administrative legality such as the validity of administrative actions, which has set suitable grounds for review11. Overall, the Bucolic Organic Farming Cooperative had enough grounds of review to successfully be made out in relation to the Minister’s decision. Endnotes Administrative Review Council, Judicial Review in Australia Consultation Paper (April 2011) Alexander Reilly, Finding an Indigenous Perspective in Administrative Law (n.d) http://www.ler.edu.au/pdf/vol19_fullpapers/ler_vol19_paper12.pdf Basten, Justice John. Administrative Law – A Perspective from the Bench. Paper delivered at the NSW Young Lawyers Continuing Legal Education Seminar 26 March 2008 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Foley v Padley (1984) 154 CLR 349 Preston, Brian. Judicial review of illegality and irrationality of administrative decisions in Australia. Paper presented to The Joint Seminar on Legality of Administrative Behaviours and Types of Adjudication 11-13 April 2006 Nguyen Van Quang, Grounds For Judicial Review Of Administrative Action: An Analysis Of Vietnamese Administrative Law. (Jan 2010) Cale Discussion Paper No. 3 Mark Aronson, Dyer Bruce and Groves Matthew, Judicial Review of Administrative Action (Lawbook Co., Pyrmont, N.S.W., 3rd ed, 2004), pp. 292-293. McClellan, Justice Peter. Australian Administrative Law, Paper presented to the TO THE International Symposium Hangzhou, People’s Republic of China, 31 October To 4 November 2006 Murray Gleeson, Outcome, Process and The Rule Of Law. Paper Presented At Administrative Appeals Tribunal 30th Anniversary at Canberra 2 August 2006 Rossana Panetta, “Wednesbury Unreasonableness: Judicial or Merits Review?” (2002) 9 Australian Journal of Administrative Law 191 at 191. Read More