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Yess - nursing

nursing
Course

Foundations of Nursing Practice 2 (NURS11154)

10 Documents
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Academic year: 2021/2022
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Central Queensland University

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Question 1) Advise Lister whether he is able to seek to invalidate Mr Arnold Rimmer’s decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth). In your answer, consider all applicable grounds, any issues or barriers to arguing these grounds under judicial review, and the relevant remedies.

Step 1 Is access to judicial review available in relation to the decision-maker and the particular action they have taken?

Decision

The ADJRA is used in the following scenario because its commonwealth (CTH). Reviewable decision is one for which a provision is made by or under statute. That will generally, but not always, entail a decision which is final or operative and determinative. 1 Interim decisions are not normally reviewable unless the Act provides for it. Other interim findings can be challenged only by reviewing the ultimate decision which relies upon them. The decision made by Arnold Rimmer was made under the intergalactic mining Act and is a final decision so the element of decision is satisfied.

What about the decision not being reviwable?

Administrative Character

Refers to the nature of the decision, not the decision-maker. 2 Courts assume that if the relevant action is neither judicial nor legislative, then it is administrative. The decision made by Mr Rimmer was not legislative in character because the decision was made about an individual not a group of people that doesn’t effect the act. The decision was not judicial in character because the decision is not interpreting the law, the decision was made about an individual not a group of people which makes it administrative in character which makes this elements satisfied.

Under Enactment

Under enactment is stated under S3(1) of the ADJRA and is defined as ‘Enactment’: Act or an instrument (including rules, regulations or by-laws) made under an Act. requires a link between the decision to be reviewed and a power conferred by an enactment to make the decision. 3 Under enactment is asking where the administrative gets its power, Mr Rimmer gets his power from the Intergalactic Mining Act (CTH) s 22 4 (C) which states that he has the authority to discontinue crew members if they do not satisfy his/the required standard. The element of enactment has been satisfied as Mr Rimmer had authority from the act and the decision itself alters and effects Mr Lister’s legal rights and obligations.

Conclusion for step 1: access to judicial review is available in relation to the decision-maker and the particular action they have taken.

1 ABT v Bond (1990) HCA. 2 Griffith University v Tang (2005) 221 CLR 99 3 Ibid.

Step 2 Does the applicant have standing to ask the court to review the action?

A person will have standing if there is sufficient connection between the person and the subject matter of the decision. Section 5 ADJRA states that standing is a ‘person aggrieved by a decision’ and is further defined in s3(4) ADJRA as ‘a person whose interests are affected by a decision’. Standing in Australia that focuses on the private interest model of standing states that an applicant needs to be affected by an administrative decision. The private interest model Focuses on the private interests of standing of circumstances that affect people specifically, rather than the review of public interest decisions. For those affected directly by a decision of the act, litigating their own interests, there is almost always standing.

Conclusion to standing: Mr Lister has standing as he has a sufficient connection between the decision and the effect. The decision that was made by Mr Rimmer, directly effects Mr lister specifically so the private interest test of standing is satisfied and the special interest test doesn’t need to be implemented. The decision was also administrative, so the element of standing is satisfied.

Step 3 Can a ground of judicial review be established?

The grounds of review that could be raised against Mr Rimmer are irrelevant considerations, bad faith, improper purpose , unreasonableness and no evidence. The first ground of review that will be discussed is irrelevant considerations.

irrelevant considerations

Section s6(2)(a) ADJRA states that irrelevant considerations is taking an irrelevant consideration into account in the exercise of a power. Mr Rimmer has taken into consideration Kristine Kochanski’s statement that Mr Lister was going crazy through an email which was not a testimony or report which can be considered in regards to 22 2 (1) of the Intergalactic Mining Act (IMA) but it was neither a report or statement but a passing irrelevant comment. Section 3 (a) and (b) of the Ima states that the minister must not consider the following

a) discriminatory characteristics of the crew member such as their age, race, education, gender, sexual orientation, religion, personal and so on; and

(b) the consequences of the continuation or discontinuation of service.

Mr Rimmer has considered Mr Lister’s personal information in regards to his sick child having only 6 months left to live and it being kinder to send him home. Mr Rimmer has also considered the consequence of continuation of service by taking into consideration that Mr Listers son only has 6 months left to live.

Conclusion: Mr Rimmer has breached s6(2)(a) ADJRA by considering irrelevant information that shouldn’t be considered, he has also breached section 3 (a) and (b) of the IMA. This is an arguable ground of review that can be raised by Mr Lister.

Unreasonableness

The next ground of review that will be discussed is improper purpose, Mr Rimmer has acted with improper purpose against Mr Rimmer. Section 5(2)(c) of the ADJRA that’s that ‘An exercise of power for a purpose other than the purpose for which the power is conferred’.

To determine the ‘proper’ purpose of the statute:

  1. May be expressly stated by the statute itself or

  2. May be implied from the scope, subject matter and purpose of the Act.

The object of the act which is stated in section 3 (1) (c) is to “ensure efficient and safe work conditions for mining employees, and value employees on their individual merits”. The purpose of the act is to also regulate and control the production of mining and ensure that all individuals comply with IMA regulations and they are trained sufficiently. In considering improper purpose you must distinguish between the proper purpose of the Act and the actual purpose the power was exercised for. The power that Mr rimmer exercised was not in respect to the act, the power that was evident was used to disallow Mr Lister from working as a space miner because he received a email from Kristine saying that it would be kinder to send him home to his dying son. In sending Mr Lister home, Mr Rimmer breached the objective of the act section 3 and also breached s 3 (a) and (b) through considering things that shouldn’t be considered. Acting in bad faith is also a ground of review that coincides with improper purpose. It states that section s5(1)(e) ADJRA Implies not a genuine mistake about the scope of the power BUT acting deliberately or maliciously in their exercise of the power. To punish someone for exercising appeal right or to obtain personal advantage. Mr Rimmer acted deliberately by sending Mr Lister home by considering irrelevant material which goes against the proper purpose of the act, this ground of review requires cogent proof which was the email sent by Kristine.

Conclusion Mr Rimmer has acted against the proper purpose of the act and also showed bad faith against Mr Lister. Mr Lister can raise the ground of review of improper purpose and bad faith successfully.

Step 4 Remedies

Court has discretion to refuse relief, even all requirements are met. Reasons why court may withhold relief in regards to section s10(2)(b)(ii) ADJRA, Inexcusable delay by applicant in commencing proceedings, Grant of a remedy would be futile, Adequate alternate avenue such as a statutory appeal on the merits, Acquiescence by an applicant in waiver of a breach and Unwarranted prejudice to interests of a party relying on the administrative decision.

Courts have considered various factors in exercising their discretion to refuse judicial review remedies where an alternate remedy (appeal or review) is available:

Adequacy of the alternate remedy, scope of appeal, available grounds, power of appeal body, etc

Grounds on which the applicant seeks to challenge the decision. Factual issues, questions of law, validity of regulation, Whether the case raises an issue of general importance or Whether judicial review would resolve the issue more efficiently.

In regards to Section s16(1) ADJRA the courts can do

a) an order quashing or setting aside the decision, or a part of the decision, with effect from the date of the order or from such earlier or later date as the court specifies;

b) an order referring the matter to which the decision relates to the person who made the decision for further consideration, subject to such directions as the court thinks fit;

c) an order declaring the rights of the parties in respect of any matter to which the decision relates;

d) an order directing any of the parties to do, or to refrain from doing, any act or thing the doing, or the refraining from the doing, of which the court considers necessary to do justice between the parties.

Conclusion: Remedies are discretionary and will apply in what is seen as ‘fit’ by the judge in the circumstances. Mr Lister will likely be able to get the judgement by Mr Rimmer quashed. 8

Question 2

8 Section s16(1) ADJRA.

Where a ‘fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question that the judge is required to decide.’

Possibility of bias that is ‘real, not remote’ and ‘not probability’.Objectively determined, applying the knowledge of the lay-observer. 10

  1. Identify precisely what it is that is said might lead the DM to decide the case other than on its merits; (eg brother’s interest)

  2. Explain how the relevant interest might lead the DM to depart from deciding the case on the merits; (eg she wants to give brother’s career a boost by making penguin meat available)

  3. Assess the reasonableness of an apprehension of bias, from the perspective of a fair-minded observer. (would observer really think she would be influenced by that?

10 Ebner v Official Trustee

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Yess - nursing

Course: Foundations of Nursing Practice 2 (NURS11154)

10 Documents
Students shared 10 documents in this course

University: Central Queensland University

Was this document helpful?
Question 1) Advise Lister whether he is able to seek to invalidate Mr Arnold Rimmer’s decision under
the Administrative Decisions (Judicial Review) Act 1977 (Cth). In your answer, consider all applicable
grounds, any issues or barriers to arguing these grounds under judicial review, and the relevant
remedies.
Step 1 Is access to judicial review available in relation to the decision-maker and the particular
action they have taken?
Decision
The ADJRA is used in the following scenario because its commonwealth (CTH). Reviewable decision is
one for which a provision is made by or under statute. That will generally, but not always, entail a
decision which is final or operative and determinative.1Interim decisions are not normally reviewable
unless the Act provides for it. Other interim findings can be challenged only by reviewing the
ultimate decision which relies upon them. The decision made by Arnold Rimmer was made under the
intergalactic mining Act and is a final decision so the element of decision is satisfied.
What about the decision not being reviwable?
Administrative Character
Refers to the nature of the decision, not the decision-maker.2 Courts assume that if the relevant
action is neither judicial nor legislative, then it is administrative. The decision made by Mr Rimmer
was not legislative in character because the decision was made about an individual not a group of
people that doesn’t effect the act. The decision was not judicial in character because the decision is
not interpreting the law, the decision was made about an individual not a group of people which
makes it administrative in character which makes this elements satisfied.
Under Enactment
Under enactment is stated under S3(1) of the ADJRA and is defined as ‘Enactment’: Act or an
instrument (including rules, regulations or by-laws) made under an Act. requires a link between the
decision to be reviewed and a power conferred by an enactment to make the decision.3 Under
enactment is asking where the administrative gets its power, Mr Rimmer gets his power from the
Intergalactic Mining Act (CTH) s 22 4 (C) which states that he has the authority to discontinue crew
members if they do not satisfy his/the required standard. The element of enactment has been
satisfied as Mr Rimmer had authority from the act and the decision itself alters and effects Mr
Lister’s legal rights and obligations.
Conclusion for step 1: access to judicial review is available in relation to the decision-maker and the
particular action they have taken.
1 ABT v Bond (1990) HCA.
2 Griffith University v Tang (2005) 221 CLR 99
3 Ibid.

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