The facts of this case relate to powers of an administrative body to make certain decisions. In answering questions one and two, I’ll consider the circumstances when judicial review is available to a party and any limitations as well as merits of judicial review to a person in such circumstances.
Is judicial review available to Gemma? What are the limitations of judicial review in the circumstances of this case?
Judicial review is where a court of law reviews an action or decision of an administrative body where such action or decision is unreasonable or illegal. Judicial review arises from a jurisdictional error by a public body. In the case of Kirk v Industrial Court (NSW) it was stated that judicial review is available to a party both at the Commonwealth and the state levels of Government. In the case of Minister for Immigration and Citizenship v SZRKT, it was held that jurisdictional error is a ground for judicial review. Other that a jurisdictional error, other factors or reasons for review of the decision of an administrative body is unfairness and unreasonableness on the part of the decision making body as was stated in the case of CQG15 v Minister for Immigration and Border Protection.
A review under section 44 of Administrative Appeals Tribunal Act 1975 (Cth) can be based on a point of law only except in circumstances where the finding of the tribunal has been vitiated or affected by an error on the applicable law. The party applying for judicial review has to prove that the action by the administrative body was unreasonable and did not respect the principle of proportionality in arriving at the decision complained about.
Judicial review however has limitations. The court is limited to determining whether there was illegality and cannot exceed this limitation to consider other parameters. The power of judicial review cannot be administered unless the administrative body has acted unlawfully or their action is unconstitutional. The power or right of judicial review is only supervisory. Judicial review has also been said not to consider factors which are considered as not justiciable and judicial review does not recommend to administrators on the best practices in carrying out their administrative roles and arriving at decisions.
Gemma’s stipend under the PhD Scholarship offered in accordance with the Bright Stars Commonwealth PhD Scholarship Fund Act 2018 (Cth) was stopped by the Commonwealth Department of Education and Training (DET) for the reason that her Honours dissertation was plagiarised as shown by a high Turnitin similarity score. Though plagiarism was a ground for disqualification and ineligibility, the Commonwealth Department of Education in taking the decision should have considered the reasonableness, proportionality and consequences of their action. Where a decision is unfair, judicial review is available as was held in CQG15 v Minister for Immigration and Border Protection.
Conclusion
In Conclusion therefore, judicial review is available to Gemma for the reason that the decision reached by DET is unfair, unreasonable and not proportional.
When is a review by the Administrative Appeals Tribunal available? What are the advantages and disadvantages of a merits review?
Administrative Appeals Tribunal role is to conduct reviews on decisions that affect corporations as well as members of the public. It is a body that is independent and provides individuals with review of administrative decisions that have been made by the Government of Australia as well as certain non state actors. The Administrative Appeals Tribunal is charged with conducting independent merits review of actions and decisions by administrative bodies made under any of the Commonwealth legislations. The decisions reviewed by the tribunal include those made by ministers, government departments, agencies, decisions of state, territorial governments and other non state actors including nongovernmental organizations.
The jurisdiction of the AAT are contained and provided for under the Administrative Appeals Tribunal Act and the Migration Act 1958 at parts 5 and 7 of the Act. The right to review is only available if an act of parliament or legislation or a regulation states that such decision can be subject to review by the AAT. Review does not begin with AAT but should first be subjected to an internal review first before the same can be reviewed by AAT. In most cases, a notice of the decision by the public body would state whether the said decision is subject to review by AAT.
A merits review however has merits and demerits. The advantage associated with a merits review is that it is cheaper as compared to litigation. It is also an informal process that is easily accessible by aggrieved parties. The procedures ensure that the decision given in the circumstances is fast as well as said to be specialized.
However, there are disadvantages of a merits review. There is no legal experience and expertise in the AAT, there is no guarantee of impartiality as most members of the tribunal are likely to be bias and a merits review has been said to lack and violates the principles of rule of law and separation of powers.
The decision to stop the stipend has been taken by Department of Education and Training (DET) which is a state agency. Though the notice did not state whether the decision can be subjected to a merits review, Gemme has a right to apply to the Department of Education and Training (DET) first and if still aggrieved, apply for a merits review to the AAT.
Conclusion
A merits review is available in this case as discussed above.
Whether the Commonwealth Department of Health has power to impound Bentley Continental Supersports car as part of the proceeds of fraud?
Recovery of assets acquired as a result of criminal acts such as fraud is provided under The Queensland Criminal Proceeds Confiscation Act 2002. There should be a special forfeiture order that is obtained in a court of law against a person who has committed and is convicted of a confiscation offence. The Director of Public Prosecutions obtains an order from the court that authorizes the police to seize any property or asset that the Administrative body believes to have been acquired as a result of a criminal offence including fraud.
There is a scheme that is applicable in tracing restraining as well as confiscating the proceeds of any crime against the commonwealth law. Other bodies engaged in the act of preventing fraud include Australian Federal Police, Australian Financial Security Authority and the Department of the Attorney General.
When Jordan, riding his $580,000 Bentley Continental Supersports car, visited the Department’s Brisbane office to follow up further payments, he was advised by the Department’s Legal Officer that his fraud had been uncovered and that he was impounding his Bentley Continental Supersports car as part of the proceeds of a crime and that he could no longer drive it out of the Department’s parking space. The Legal Officer acted and exercised powers that he did not posses in the circumstances (ultra vires) by claiming to be exercising non-statutory executive powers which were not available to him in the circumstances. Jordan therefore has a right to apply for a review to the AAT because the decision taken by the Health Department is unreasonable and outside their jurisdiction and power (ultra vires). There is a jurisdictional error which is a ground for judicial review.
Conclusion
In conclusion therefore the department of has no power to detain, impound or confiscate Jordan’s Bentley Continental Supersports. The department has no legal authority or that of its officers to impound the car in the circumstances and should therefore release the car to Jordan. If they cannot release the car, Jordan has a right to apply for a merits review to the AAT.
Douglas R, Head M. Douglas and Jones’s Administrative law (Oxford University Press, 2014)
Barnett H. Constitutional & administrative law (Routledge; 2011)
Hawke N. Introduction to administrative law (Routledge-Cavendish; 2013)
Head M. Administrative law: Context and critique (Edward Elgar Publishing 2017)
Legislations
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958
Case Law
Kirk v Industrial Court (NSW) 92010) HCA 1; 239 CLR 531
CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146
Minister for Immigration and Citizenship v SZRKT [2013] FCA 317
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