Tutorial 5

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76009

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Law

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Apr 3, 2024

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Certain remedies only available for jurisdictional errors and not non-jurisdictional errors Remedy requiring jurisdictional error: - Prohibition - Mandamus - Certiorari when ancillary to mandamus and prohibition Remedy for non-jurisdictional error: - Certiorari when there is error of law on face of the record Craig v South Australia (1995) 184 CLR 163 1 Identifying appropriate remedies What remedies are most appropriate in the following situations and what would be their effect? What needs to be established for the remedy to lie? (a) You suspect and have some evidence suggesting that the Departmental officer who has made the decision refusing to renew your driver’s licence does not have the authority to make such decisions. (b) You are seeking to send your child to a public school out of your catchment area and need government approval. You have filed the application, but have not received an answer for over 7 months and the school term is approaching. You are told the Department will not be making a decision in your case, arguing it has a discretion not to determine the issue. (c) Your favourite tree in your neighbourhood happens to be a native Scribbly Gum in your neighbour’s backyard. You are given a notice that council has given approval for the tree to be removed, ahead of major renovations. You think the decision is wrong. 2 Remedies in judicial review (a) What did the case of Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 (Links to an external site.) determine in relation to the classification of writs? (b) Where are remedies set out in the ADJR Act? 3 Standing The current law and policy on standing (locus standi) should be less flexible, more narrow and therefore more certain for administrative decision makers . Discuss, with reference to the applicable case law and policy arguments, and consider whether the courts or the legislature should make changes to the law on standing.
4 Sugar-Free Television In 2018, the Commonwealth Government introduces the Sugar-Free Television Act 2018 (Cth), the effect of which is to ban television advertising of a range of products deemed to contain excessive amounts of sugar. Proscribed products include soft drinks and lollies. The Act affords the Minister for Health discretion to approve an advertisement that ‘adequately warns of the health risks’ associated with consumption of products governed by the Act. The relevant Act does nothing to exclude the application of the ADJR Act. Billy Wonka Inc is a confectionary manufacturer. They want to show a television advertisement which suggests science has not yet established a link between excessive sugar consumption and adverse health impacts. In May 2018, the Minister grants the permit. A number of parties are upset by the Minister’s decision: Aches and Pains Ltd (a major health fund), Tara Bilson (author of a book called ‘Give Up Sugar’), and Mums Against Lollies (a group dedicated to eliminating sugary treats for children). (a) Advise all three parties if they will have standing to seek judicial review of the Minister’s decision under the ADJR Act. (b) If a party does not have standing, what other options are available for him/her/it to participate in judicial review proceedings?
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