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Role of Administrative Law of Judicial Review

Question :

Administrative Law is a body of legislation that governs the activity of the administrative agencies of the government. This unit deals with the case study where relevant administrative laws are to be applied. It covers the following-

  • Understanding the concept and application of judicial review.
  • Different grounds of judicial review.
  • Relevant legislations relating to administration.
Answer :

INTRODUCTION

Administrative law refers to the body of legislation that governs the activities of administrative agencies of the Government. Lawmakers create government agencies to carry out laws and administer the functions of government. Australia poses a well-developed ombudsman system and freedom of information legislation. The report discusses the role of administrative law in the given scenario and how the Administrative Decision and Judicial Review Act 1977 can deny or provide access to permit for riding Ostrich in Australia.

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QUESTION 1

Which grounds of judicial review could be raise in court to have the purported cancellation set aside as invalid?

In the above case, Petrella has operated a business that offers ostrich rides to customers aged from 5 to 15 at school, community’s fates and carnivals around Australia. Petrella is a licensed owner of Ostrich riding business and she has registered her name under the Ostrich Rides Act, 1988. Further, Petrella holds the required permit to keep ostriches and use them for human riding. The permit is being renewed at every five years from the date it was granted in the year 1996. Petrella being a responsible citizen oblige to the law and renewed her license permit after every five years. The current permit issued on 2016 and is due to get expired on 2021 was cancelled by Ministerial department on giving notice to Petrella. This is not valid act by the administrative agencies of Australia, and they cannot cancel the permit by giving notice to the owner (Tushnet, 2017).

Ground/s of Judicial Review:

Judicial review refers to the court authority to examine an executive or legislative act and to invalidate that act if it is contrary to constitutional principle. In Australia, High Court has the authority to impart the practice of Judicial Review to any administrative body of Australia if the court feel so.

The Ostrich Ride Act, 1988 states following terms and conditions for the holder and the issuer of Permit. These are:

  • The Minster for Animals may grant an Ostrich Ride Permits to suitable adult person who applies and who has paid the prescribed fees.
  • An Ostrich Ride Permits:

May be renewed by minsters, whether before or after it expires.

The permit may expire on the Fifth Anniversary of the day, it was granted or last renewed, as the case may be.

By reviewing, these terms and conditions under the Ostrich Rides Act, 1988, it can be stated that the cancellation of Petrella licenses is invalid act of Ministerial department and this can be explained on following grounds:

  • As stated above that Ministerial department can issue the permit to a suitable person who applies for it. Petrella has applied for the Permit and she fulfils the condition of being eligible person for the permit. Further, Petrella has the trained Ostrich in her riding business which state a valid reason for being eligible of having Ostrich riding permit.
  • The Ministerial Department has asked to renew the license after completion of five years’ period whether expired before or after it. Petrella has renewed her permit on 2016 and it is going to be expired on 2021 but it was cancelled before the date of expiry which is invalid.
  • Further, Government has cancelled the permit on the basis of increasing accidents in Australia due to Ostrich ride. After, reviewing the newsletter of Ostrich Rides Operators of Australia Association there were only three documented “attacks” on humans have occurred in Australia. Thus, the basis of cancellation of permit was not strong and valid (Head, 2017).
  • It does not state the name of community or particular region who is being disturbed from the Ostrich attacks. This shows an improper behaviour of Ministerial Department as they have not informed about any particular community nor they have used the word like; “People of Australia” in their letter.

Question 2

How transcript will affect the grounds of judicial review in Question 1

In the above case, it state that after being applied for judicial review the case was lost and Ministerial department has cancelled the license for Ostrich ride permit for all the owners of Ostrich riders. There was talkback show sponsored in order to discuss about the success of Ostrich Rides ban with Ministerial Department. After, listening to this transcript and MP3 audio it can be stated that it was an impartial judgement by the court and they have not practice procedural fairness and natural justice in there decision making.

The term procedural fairness refers to procedures used by decision-maker, rather than actual outcome reached. Australian administrative law is based on the ombudsman system and procedural fairness is concerned as highly great practice according to this system but it cannot be seen in the above case.

The critical part of procedural fairness is “the hearing rule” which means that person must have given the fairness and the chance to reply before government agency make a decision that negatively affects a right of an individual. The Ministerial Department cancelled the permit stating that it is inhuman to ride an animal for the enjoyment of individual humans. Further, the basis of cancellation of Ostrich ride permit by the Ministerial Department is; “the Government has decided that the “community” can no longer tolerate the risk posed by ostrich ride”. The minsters has cancelled the permit and the court orders are in favour of Ministerial department without providing any further trial date for discussing the case. This shows that there is no procedural fairness applied Hawke, 2013)

The procedural fairness provides the opportunity to other parties to reply the government agencies by deny to regulations imposed by government. Thus, all the members can file a case on Ministerial Department and can reopen the case by terminating the decision of Ministerial Department for cancellation of permit.

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Further, In the MP3 audio it can be clearly heard that Ministers for Animals has mentioned the other benefit of banning the Permit of Ostrich riders was that the current party will get the support of Rights for Animals Party which clearly states the personal motive of Ministerial Department in the banning of Ostrich Ride Permit. This state about the wrong motive of Ministerial department regarding the vote bank for their next elections. Further, it is wrongful practice and behaviour as Ministerial Department cannot bribe any community to vote to them through their actions and behaviour. This evidence will act as ground for Invalid cancellation of Ostrich Ride Permit by Ministerial Department of Animals. Through this statement it can be proved about the incompetencies of Ministerial and government agencies in fulfilling their duties on part of Public Servants.

Moreover, Procedural fairness laid down the certain duties for decision maker while providing any judgement. These are;

  • It is essential to provide the individual a fair hearing and assure that individual has granted a chance of fair hearing. The term fair hearing refers to that there should be fair chance and decision making process should neither be too early or too late.
  • The decision maker person should be unbiased which implies that from an onlooker's perspective there is no reasonable perception of bias should be there (Hamlin, 2012).

Further, the Ministerial Department should set standard for Ostrich ride owners on how to treat and behave with these birds in order to reduce any accidents or cases. It can set norms and conditions for misbehaviour with these birds. Instead, of cancelling the ride permit of Ostrich owners.

Question 3

How the process of Individual Cancellation can affect the invalid cancellation procedure

In the above case, it states that the Ministerial Department is cancelling the Petrella permit for Ostrich ride in 90 days due to the inconvenience caused by Ostrich Riding to community people. Petrella can stop the Ministerial Department from taking such actions by satisfying the norms and conditions set by the Department.

Statutory Authorisation refers to an administrative agency that have the powers to enforce the law on the behalf of relevant country or state. The Ministerial Department is the Statutory Authorisation in the given case and they can enact it power in relation ton protection and welfare of animal. There are two possible situations that can be arise in the given case which is:

CASE 1:

In the given case if Petrella fails to satisfy the Ministerial Department that there birds are not trained and they can attack human in case of riding. Also, the birds are not guaranteed under the Ostrich Act,1988 then the Ministerial Department can cancel the license of Petrella on the following ground;

As, stated above that Ministerial department can cancel the licenses or permit of any Individual who is involved in the practice of Ostrich rides. Further, Ministerial Department has the right and authority to cancellation of permit if it is necessary or proper to prevent or remove any significant danger to health and Safety of the public or any section there of. Thus, it can be stated that he cancellation of Ostrich Permit ride done by minster is valid according to the Ostrich Ride Act,1988.

It is illegal for a person to cause or permit any other person (whether adult or minor ) to ride upon a ostrich unless the Ostrich is not registered. The Ministerial Department for animals can imposed a penalty of $400 on that person. Petrella cannot be granted permit for Ostrich rides act as she fails to register her Ostrich under the Ostrich Rider Act, 1988.

Further, the Ministerial Department can banned the permit of Petrella under the Animal Welfare Act,1992. According to this act a person must have the licensee granted by The animal welfare Authority in order to use or breed animals for research or teaching and training for any activity (Animal Welfare in Australia.2016).

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CASE 2:

In the above case, if the Petrella satisfy to prove the Ministerial Department for Animals that the Birds hold by her is well trained and they will not attack any humans while riding. Further, the birds owned by her is guaranteed and registered under the Ostrich Act 1988 then the cancellation of permit by Ministerial Department cannot be valid on the following grounds:

It is stated in the law that the person who is eligible and has paid the prescribed fees can opt for permit from Ministerial Department. Thus, Petrella has proved that her birds are guaranteed and well trained she can opt for permit and Ministerial Department cannot cancel her permit by stating that it causes harm to only a particular section of community.

Petrella can asked for procedural fairness if her permit is cancelled and demand for natural justice in the court. Further, she has the right to discard the regulation under the procedural fairness. Petrella can provide evidence for disapproving the allegations and explain those allegations by providing details regarding to them.

Further, Petrella has the licenses of Animal welfare society that permits her to breed and trained animals owned by her. Ministerial department needs to verify this before cancelling the permit of Petrella.

Ministerial department cannot directly cancel the permit instead they should set guidelines for Ostrich industry. They can set norms and rules that to be followed by Ostrich riders and owners in order to minimise the accidents caused by Ostrich rides in

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