Administrative Law Assignment Sample Online

Assessment Task

Administrative Law Spring 2017 Research Assignment

Marks, learning outcomes and assessment criteria

This assessment is worth 30% of the final mark in this unit. The learning outcomes and assessment criteria are contained in the unit Learning Guide, pp 3-7.

Due Date: Thursday 28 September 6pm

Submission and penalties

Assignments must be lodged via Plagiarism, and via hard copy at class or via the School of Law assignment box for Michael Head. Late assessments will be penalised by 10% per day (i.e., 3 marks per day).

Word Limit

The assignment is to be 3,000 words (plus or minus 300 words), including footnotes.

Form of assignment

The assignment is to be written as a submission to your law firm, setting out both (1) the relevant and strongest grounds of review and (2) the most advisable avenues of review available. There must be correct and full citations to the relevant legislation and case law, as per the Australian Guide to Legal Citation.

Part 1: Non-judicial review

This part requires advice on the availability of, and best options for, informal review, internal review, FOI, Ombudsman and tribunal review of the administrative decision.

1. You must outline the merits issues and legal issues that you consider relevant. Such issues must be supported by references in the footnotes to the relevant legislation, guidelines and cases.
2. Reference must be made to the legislative sections covering the procedures and application fees for these actions, and what procedures your client should expect at each step, and how long the review process could take.

Part 2: Judicial Review

This part requires advice on the possibility of challenging, via judicial review, the decision made by the original decision maker or relevant tribunal.

1. You must advise whether your client has standing, and which courts have jurisdiction.
2. You must outline the grounds that may be open to challenge the administrative decision, indicating which you think are the strongest grounds.
3. No reference is needed to the remedies that are available, but the likely time and fees of any action must be indicated.

Remember: non-judicial review is also based on the relevant legislation and cases. Any legal argument already made in Part 1 should not be repeated, but instead referred back to.

Fact Scenario

Your client, Jasmine is a WSU student who opposes the plans of the federal government to increase student fees and impose further financial cuts on universities. She applied in writing within the required time period under the Freedom of Information Act 1982 (Cth) (FOI Act) for access to (a) the federal Education Minister’s diary in a ‘weekly format’ for the three months leading up to the 9 May 2017 budget and (b) any background or briefing documents referred to in the diary relating to the preparation of the budget. In a written notice, within the time specified by the Act, the Minister’s office refused access to the material, stating as its reasons:

• The diary was exempt from disclosure because its entire contents, including references to meetings with department officials and other cabinet ministers, were private, not intended for public release and did not pertain to government affairs.
• Even if parts of the diary were covered by the Act, it would take an estimated 600 hours to determine which parts of the diary were not exempt, and this would unreasonably interfere with the work of the Minister and unreasonably divert the resources of his Chief of Staff, who was the only person in the Minister’s office delegated to respond to FOI requests.
• Even if parts of the diary were covered by the Act, both the diary and any background or briefing documents referred to in the diary are exempt from disclosure as deliberative processes documents.

The notice offered Jasmine a two-day consultation period in which to consult with the Chief of Staff about possibly revising her request, provided that she come to Canberra for the consultation because the issues were too confidential to discuss on the phone or on-line. Jasmine replied in writing, rejecting the consultation offer as inadequate, financially prohibitive and insulting, and stating that she did not wish to review her request because she was determined to expose the government’s political agenda to slash education funding. After receiving Jasmine’s response, the Minister told parliament that she had no intention of giving Jasmine access to any documents because Jasmine was a ‘radical activist’ and a ‘socialist’ whose motives were to cause public confusion, embarrass the government and incite a rebellion among students. Jasmine now wants to challenge the decision by the Minister’s office to refuse her FOI requests. This assignment requires research to find the relevant legislation, guidelines and cases. In your submission, you must examine, apply or distinguish all applicable cases, including (but not limited to) the following decisions: Dreyfus and Attorney-General (Commonwealth of Australia) (Freedom of Information) [2015] AATA 995 The Australian and Prime Minister of Australia [2016] AlCmr 84 Paul Farrell and Prime Minister of Australia (Freedom of Information) [2017] AlCmr 44

Assessment Solution

Administrative Law: Non-Judicial and Judicial Review It is unfortunate that our client, Jasmine who is a WSU student was denied one of her fundamental rights as provided for by the Australian laws relating to rights of expression and access to public information. The brief of the matter is that she was opposed to the federal government’s plans of increasing student fees and imposing further financial cuts on universities. In protest and in exercising of her basic rights, she applied in writing within the required period under the Freedom of Information Act 1982 (Cth) (FOI Act) to access the Minister’s diary, as well as to obtain any background or briefing documents in the diary relating to the budget preparation. However, under what we consider as violation of the Australian Constitution and enacted laws, the Minister’s office refused her to access the material, citing flimsy and unfounded reasons. This submission seeks to challenge the decision by the Education Minister’s office to refuse Jasmine her Freedom of Information Act (FOI) requests. It is premised on the belief that all Australian students and citizens have uninhibited right to access information, especially touching on public policy issues such as student fees and financial cuts on universities. This submission will be in two parts. The first part will be Non-Judicial Review best options for the Ombudsman review regarding the administrative decision. The second part will be Judicial Review where the possibility of challenging the decision on the basis of the advice of Ombudsman. Non-Judicial Review Among the non-judicial review options available, a review of this matter by the Ombudsman is the most ideal in this case. As such, the Commonwealth Ombudsman in Australia will be approached. The Ombudsman is mandated with the responsibility of investigating complaints regarding decisions and actions of Australian Government agencies and departments, oversee complain investigations of the federal police, and the services delivered by private contractors to the government.[1] In this particular case, the Ombudsman has the role of investigating complaints relating to delays in FOIC processing, and those concerning FOI charges. Of most relevant interest in this case the Ombudsman’s role in investigating complaints concerning delays in processing FOI, as well as complaints on FOI charges. It also investigates systemic issues and has the mandate and discretion on whether or not an investigation should be conducted on any particular complaint.[2] The choice of the Ombudsman on Jasmine’s matter is informed by the fact that it is an impartial and autonomous entity that can investigate this issue considering that it falls under its roles. It has a mandate to investigate government actions, such as the plans to impose further financial cuts on universities and to increase student fees. The Ombudsman Act 1976 (Cth) that established the office of the Ombudsman gives powers to this office to investigate on its “own motion” and/or having received a complaint such as the one by Jasmine.[3] The matter presented by Jasmine has a stronger and broader scope as it also covered by the Public Interest Disclosure Act of 2013 (Cth) under which a whistleblower protection scheme is established. Jasmine’s intention to access the federal Education Minister’s diary for three months in the run up to the 9 May 2017 budget, as well as other briefing or background documents referred in the diary is under Public Interest Disclosure Act which is within the Ombudsman’s mandate. Ombudsman, under this Act can facilitate provision of resources, guidance, and information to disclosers and agencies.[4] Upon giving certain reasons, the Ombudsman may require that the Minister’s diary be accessed. The most fundamental law that this submission seek to obtain advice on from the Ombudsman is in relation to the Freedom of Information Act 1982 (Cth). The office processes requests on freedom of information according to the provisions of this Act, and in respect to the privacy and confidentiality provisions. In particular, it is expected that the Ombudsman will ask the Minister’s Officer, as provided for by FOI, to release documents upon request unless such a request is conditionally or absolutely exempt. Australian federal agencies and government ministries are required to disclose general information regarding their operations in public statements and reports.[5] Being a public document, the Education minister is required to release the budget to Jasmine. FOI provisions require that the minister must release these documents as hard copies. However, there is a possibility that the Ombudsman may give the minister’s office a leeway as provided for by the law where the documents may be released with redactions. FOI law accords Jasmine certain rights of access to documents in possession of the government’s agency. The agency (in this case the Education Minister’s office) is required to publish the requested information regarding their powers affecting the public, and their decision-making documents such as those informing increase in student fees and cuts in funding the universities.[6] Also, the agency is required to offer access to documents that it is possessing unless the document requested are within an exception specified in the law. Jasmine made effective use of her rights to access information by being able to identify the location of the particular information that she was seeking; she was particular that the plans to increase student fees and cut funding to universities were in federal Education Minister’s diary for the three months leading to the 9 May 2017, and also in the briefing documents relating to that budget’s preparation. The possibility of Ombudsman to give this matter a positive review is augmented by Jasmine’s ability to effectively use her freedom of information rights. Specifically, she followed the right procedure in applying for access to the information. As specified under the FOI Act, such an application should be done in writing, which Jasmine did.[7] Also, it requires that it should be done within a specified period and should be delivered to the agency at a given address, a procedure that Jasmine followed. It is expected that the Ombudsman will give a favorable review on Jasmine’s matter because the Minister’s office decision to refuse her access to the requested materials do not have strong legal backing. Part IV of the FOI Act makes provision for two different forms of exemptions to access to public document.[8] The first exemption is in respect to the ‘exempt documents’ that do not require the public interest test. This provision states that if a document meets one of the following criteria, then the minister is not required to provide access: cabinet documents; documents affecting international relations and national security; documents that are subject to the privilege of the legal professional; documents of the Parliamentary Budget Office; and documents that contain material that were obtained in confidence. The second type of exemption is on ‘conditionally exempt documents’ which relates to one of the following: professional or business affairs; Australia’s economy; deliberative process; personal privacy; research undertaken by particular agencies; Commonwealth State relations; and certain agency operations.[9] Considering the circumstances and the intention of Jasmine in requesting access to Education Minister’s diary, it is certain that the aforementioned exemptions do not apply to a request at all. As a matter of fact, Jasmine’s request to access minister’s diary, especially in respect to the budget and its impact on funding of universities and student fees, promotes public interest. Therefore, it is expected that the Ombudsman office will find out that there are more factors favoring access to the documents. Some of these factors include those contained in the Section A 11B of FOI Act: access to the documents by Jasmine will promote the objectives of the FOI Act; it will promote effective public expenditure oversight; and it inform debate on a public importance matter, particularly on the country’s education system.[10] In addition, seeking the Ombudsman review will help to address the issue raised by the Minister’s office that “Jasmine was a ‘radical activist’ and a ‘socialist’ whose motives were to cause public confusion, embarrass the government and incite a rebellion among students.” This assertion forms no basis to deny her access to the requested documents. In fact, Section A 11B of FOI Act further states that such factors as those mentioned by the minister should not be taken into account when considering exemptions to access to information. These factors include disclosures that could result in unnecessary debate or confusion, and/or the disclosures that may be embarrassing to the Australian Government or lead to a loss of confidence in the government.[11] The FOI Act 1982 stipulates the procedures for application regarding access to information such as that requested by Jasmine.[12] Based on the fees and charges, Jasmine is not expected to be charged any fees for requesting access or applying for internal review. However, in the search and retrievable stage, the charges are $15 per hour, while the decision-making time stage the first five hours is free but each subsequent hour is $20.

Part 2: Judicial Review

On the basis of the positive non-judicial review of the Ombudsman regarding Jasmine’s matter, there is a huge possibility of challenging the decision made by the original decision maker (the Education Minister’s office). It is evident from the non-judicial review that according to Freedom of Information Act 1982, the minister did not have any formidable legal basis to refuse Jasmine access to the material that she was requesting, that is, the federal Education Minister’s diary in a ‘weekly format’ for three months leading up to the 9 May budget and briefing documents referred to in the diary relating to the budget preparation.[13] Also, Jasmine’s request is backed by the Public Interest Disclosure Act which seeks to facilitate provision of resources, guidance, and information to disclosers and agencies. As aptly stated in the FOI Act, Australian federal agencies and government ministries are required to disclose general information regarding their operations in public statements and reports.[14] Therefore, being a public document, the Education minister is required to release it to Jasmine. FOI provisions require that the minister must release these documents as hard copies.[15] Jasmine has a strong standing in challenging the minister’s decision and action considering that she had followed all the laid down procedure in requesting the materials. In particular, she requested in writing within the specified time under the FOI Act. More importantly, the minister’s actions to refuse Jasmine access to the requested material was not within the exemptions clauses as contained in Part IV of the FOI Act making provision for two different forms of exemptions to access to public document. Jasmine’s request to access minister’s diary, especially in respect to the budget and its impact on funding of universities and student fees, promotes public interest, and therefore, strengthens her standing in challenging the minister’s decision to refuse her access to the material.[16] The motivation to challenge the decision by the minister is also founded on the understanding that the minister’s arguments to support his decision on Jasmine’s request to access the materials are feeble. The minister had told Parliament that she did not have the intention of providing Jasmine access to any documents because she believed that Jasmine as a ‘socialist’ and a ‘radical activist’ whose motives were to cause public confusion, as well as embarrass the government and incite a rebellion among students. According to Section A 11b of FOI Act such factors as those mentioned by the minister should not be taken into account when considering exemptions to access to information. These factors include disclosures that could result in unnecessary debate or confusion, and/or the disclosures that may be embarrassing to the Australian Government or lead to a loss of confidence in the government.[17] The minister cannot merely deny access to public information in the pretext that such an undertaking will take more than 600 hours to determine what parts are exempted before granted the prayers. The court in Dreyfus and Attorney-General {(Commonwealth of Australia)(Freedom of Information)}(2015)  had rejected such a contention.  The basis for the judicial review of this matter is founded in the Australian constitution that makes a provision for judicial review’s ‘entrenched minimum provision.’ Section 39B1 of the Judiciary Act 1903 holds that the jurisdiction for judicial review on matters relating to the administrative law is the High Court of Australia and also the Federal Court of Australia.[18] Therefore, challenging the decision of Jasmine’s case, via judicial review, will first be done at the high court and then an appeal can be launched at the federal court, if need be. It should be noted that the judicial review of matters such as this one is protected by the legality principle. As it was argued in the case of Magrath v Goldsborough Mort & Co Ltd (1932), during the interpretation of a statute, courts have to make a presumption that the enactment of certain legislations were not intended to limit access to courts, unless such an intention was made clear and in an unambiguous manner.[19] It thus follows that Jasmine’s matter will be challenged in the high court since there is no law that makes a restriction against it. The ground for challenging an administrative decision such as that made by the minister’s office denying Jasmine access to materials she had requested were developed at common law and later codified in the Administrative Decisions Act of 1977.[20] The types of error which could emanate from judicial review are categorized in the following categories: improper purpose, error of law, depending on irrelevant considerations, and breaching the natural justice’s bias or hearing rules.[21] The office of the Ombudsman has the powers of investigating action that relates to administration actions and decisions such as that by the minister’s office towards Jasmine. In this case, the Ombudsman will investigate the complaints from Jasmine informally and privately. Also, the Ombudsman may formally require attendance and witness’ examination, as well as require that certain documents should be produced. It is at this point that it is almost certain that the Ombudsman will take a position that the decision by the minister’s office to refuse Jasmine access to requested materials was wrong. As it was noted in the case of Public Service Board v Osmond (1986), giving reasons for judicial review is important as it enables the parties in understanding the foundation of the decision, as well as to enable them to exercise their right of appeal.[22] The practice of providing grounds in the judicial review is crucial in improving the quality of fundamental decision-making. Secondly, giving grounds in the judicial review is part of the requirement of the general due process. Thirdly, the grounds provided in judicial review helps the applicants in their considerations regarding whether they can exercise their rights of appeal or review. Besides, it is necessary to give grounds in the judicial review in order to help courts and tribunals in offering judicial review and merits. More critically, grounds help in promoting public confidence in the administrative process by thorough disclosure of the reasoning process of the judges and other decision-makers to the public.[23] There are sufficient grounds to challenge the administrative action of the minister’s office. The strongest grounds relate to the FOI Act of 1982. Before the operationalization of this act, information access from the government agencies was generally a matter of discretion. It was a norm for people to be refused access in many government agencies.[24] However, this situation changed with the enactment of the FOI Act 1982 that allows citizens to access government information, unless such access is denied under certain exemption clauses.[25] The Act requires that government bodies should make public information about their powers and operations that affect the public members. Also, they are required to make public manuals, as well as other documents used in making public policies, recommendations, and decisions affecting the public. In this case, it is clear that the matter that Jasmine was pursuing about funding cuts to the universities and about increase in student fees was of significant public interest and she should therefore be allowed to access the relevant documents. The second strong ground that is open in challenging the administrative decision of the minister is in respect to the objectives of FOI. The primary objective is the need to expand citizens’ rights to access government materials and information that has direct and indirect impact on their lives.[26] In the cases of  Searle Australia v Public Interest Advocacy Centre (1992) and Arnold v Queensland (1987), it was made clear that FOI expands citizen’s rights to access government documents and information by: creating a general access right to agency-held documents; offering them ability of amending or annotating personal records relating to that specific person; and imposition of a duty on government agencies to make available or publish relevant information about their decisions and operations.[27] The third compelling ground for challenging the minister’s administrative decision is covered under the FOI’s Miscellaneous Provisions indicating the bodies that are covered by the act. These provisions consider such bodies as having certain major elements. The first major element is that such a body is established for a public purpose. Education Ministry is such a body. The second element is that such a body may be established by a government or minister controlled body. The third element is that if a person (in this case the minister or her chief of staff) perform duties or hold an office formed by an enactment. The other element is that such a person should be performing or holding the duties of a ministerial appointment declared through the regulations to be a prescribed body.[28] Conclusion On the basis of both the non-judicial review and the judicial reviews regarding the fact scenario, it is evident that the administrative decision of the Minister’s office to refuse Jasmine material was unconstitutional and non-procedural. As noted, the merit and legal issues that are relevant to this matter revolve around the Freedom of Information Act 1982. Based on the legal facts as captured in the related legislations and constitutional provisions, it is clear that Jasmine (our client) has a strong standing of challenging the administrative decision of the minister. Her standing is further augmented by the fact that the matters she is pursuing regarding increase in students’ fees and cuts of universities’ funding promote public interests since it affects a significant proportion of the Australian population. Besides, there are strong grounds for challenging the administrative decision, key among them being to fulfill the FOI Act’s objectives of expanding and upholding rights of citizens to access government information. It is important for the client to note that the judicial review will take duration of between 3 and 6 months at an estimated fee of $1,000.

Bibliography

Bannister, J. (2105). Accountability or participation? Disentangling the rationales for FOI access to deliberative material. International Journal of Open Government, 327-344 Cane, P., & Cane, P. (2011). Administrative law. Oxford: Oxford University Press. Chatterjee, S. (2013). Freedom of Information. Australian Medical Student Journal 24 Commonwealth Ombudsman. (2017). What We Do. Retrieved from http://www.ombudsman.gov.au/about/what-we-do Enright, C. (2001). Federal administrative law. Annandale, N.S.W: Federation Press. Groves, M. (2014). Modern administrative law in Australia: Concepts and context. Cambridge: Cambridge Univ. Press. Jones, C. H., & Macdonald, J. (2003). The law of freedom of information. Oxford: Oxford University Press. Michael, B. (1999). France and the Dreyfus Affair: A Documentary History. Bedford/St. Martin's. Paterson, M. (2005). Freedom of information and privacy in Australia: Government and information access in the modern state. Chatswood: LexisNexis Butterworths.

Snell, R. (2001). Freedom of Information : The Experience of the Australian States - an

Epiphany? FedLawRw 16; 29(3) Federal Law Review 343

Stubbs, R. (2008). Freedom of Information and Democracy in Australia and Beyond. Australian Journal of Political Science 43(4), 667-684

Taggart, M. (2007). The province of administrative law. Oxford: Hart. [1] Commonwealth Ombudsman. (2017). What We Do [2] Groves (2014). Modern administrative law in Australia: Concepts and context, 29 [3] Taggart (2007). The province of administrative law, 42 [4] Cane & Cane (2011). Administrative law, 71 [5] Enright (2001). Federal administrative law, 115 [6] Snell (2001). Freedom of Information : The Experience of the Australian States - an Epiphany? [7] Jones & Macdonald (2003). The law of freedom of information, 42 [8] Chatterjee (2013). Freedom of Information [9] Groves (2014). Modern administrative law in Australia: Concepts and context, 50 [10] Chatterjee (2013). Freedom of Information [11] Stubbs (2008). Freedom of Information and Democracy in Australia and Beyond, 668 [12] Snell (2001). Freedom of Information : The Experience of the Australian States - an Epiphany? [13] Taggart (2007). The province of administrative law, 81 [14] Jones & Macdonald (2003). The law of freedom of information. 66 [15] Snell (2001). Freedom of Information : The Experience of the Australian States - an Epiphany? [16] Stubbs (2008). Freedom of Information and Democracy in Australia and Beyond. 672 [17] Ibid 675 [18] Groves (2014). Modern administrative law in Australia: Concepts and context, 85 [19] Snell (2001). Freedom of Information : The Experience of the Australian States - an Epiphany? [20] Enright (2001). Federal administrative law, 126 [21] Bannister (2105). Accountability or participation? Disentangling the rationales for FOI access to deliberative material, 335 [22] Groves (2014). Modern administrative law in Australia: Concepts and context, 94 [23] Bannister (2105). Accountability or participation? Disentangling the rationales for FOI access to deliberative material, 338 [24] Stubbs (2008). Freedom of Information and Democracy in Australia and Beyond. 679 [25] Chatterjee (2013). Freedom of Information [26] Bannister (2105). Accountability or participation? Disentangling the rationales for FOI access to deliberative material, 342 [27] Jones & Macdonald (2003). The law of freedom of information. 104 [28] Stubbs (2008). Freedom of Information and Democracy in Australia and Beyond. 683