The current and modern advancement of judicial review notable in Australia emerged from the administrative reforms of the common wealth governments in 1970s. It involved the creation of the administrative appeal tribunal, Australian federal court and the ombudsman office. Importantly, the reforms enacted the judicial review (administrative decisions) Act 1977. Before the push and struggle by the governments to implement and reinforce the judicial review, the final decisions made by the courts could not be challenged as that was the law.
Notably, the presence of the non-judicial review is imperative as it provides the public with their democratic right to challenge the ruling. The provisions by the administrative decisions Act 1977 is based in the convenience of the constitution and acknowledgement of the sovereign power of the people. Its mandate is to protect citizens against the selfish decisions that the government may engage in with a motive of benefiting those in Authority at the expense of the public. The idea is not to embarrass the government but to ensure that the legal procedures are followed in making decisions especially those that relates to the rights of the citizens.
Importantly, a number of ruling especially in regard to the cases between the public and the government have been made in support to the government position. In such a circumstance, the only existing alternative is making review through a non-jurisdiction approach or file a petition challenging the ruling on the highest court. The existence of the two alternative options and being a matter of the constitution enhances access to law and strengthens the fight for justice.
Non judicial Review
The case of Jasmine is a matter meant to challenge the position taken by the government to increase the fees of the students and additional financial aid likely to accrue and assist in funding the University student. From a legal perspective and based on the Freedom of Information Act 1982, any citizen of Australian republic or the common wealth government in general is allowed to challenge the position of the government provided that the information approved is not convincing enough. Jasmine asserted that, the plans to cripple education funding is a planned scheme by the government to interfere with efficiency of learning especially with regard to University students hence the position. In order to legally approve her allegations, she made an application to review the government decision.
According to Freedom of Information (FOI) Act 1982, 3(2a,b), the constitution gives the responsibility that the member of the parliament have to play in regard to the decision made.
It holds that, with a motive of improving the publics democracy the representatives are mandated to participate in all the governmental processes for purposes of making a better and informed decision.
To achieve sufficient democratic representation, scrutiny, comments, discussions and reviews of government processes are encouraged.
In legal consideration of the position that the constitution holds for the parliamentarians, the clauses fails to provide an alternative of the situation where the demands of the people and the leaders are not the same. For a long time, it has been assumed that the demands of the members of parliament is exactly what the public needs but that is clearly untrue. It is therefore in order for the citizens especially those who are under-represented to rise and question any form of injustice. For the case of education system that falls under the ministry of education, why is it that the key stakeholders who are students and lecturers are not involved in decision making? The act of representing implies that that the needs of the most affected people are incorporated to better satisfy their demands.
Furthermore, the fact that, clause 2b of section 3 highlights a provision of discussion, reviewing and commenting gives the concerned leaders an alternative to challenge the decision. It is therefore clear that, all the representative approved the budget motivated to reduce the education funding with no clear basis. It is known that, the government in the long run despite the challenges that might exist will ultimately have its way and therefore in the interest to stop such a perception, a non-judicial petition was applied.
According to the privacy Act 1988, an entity or individual is entitled to his or her opinion. It is a constitutional affair though not a bench mark of dispute. On a similar note but shifting focus to FOI Act 11(1), every individual legally has a right to have an access to any information but with total adherence to the document Act relating to the concerned agency or an official document under the authority of a minister. Section 11(2) reinforces that this right is distinct and not affected by an alternative reason that may be issued for denial. It is these two constitutional positions that Jasmine held as the basis of her case. Even though the minister asserted that, it is improper to disclose the information since it is protected under the personal information act, the position was overruled as the information needed is not private but a matter of public interest.
Section 11A (3) holds that access to a document is bound to be issued unless the concerned document is an exempt or attached to several conditions 11A (4). The challenge at this level is, when the document is considered exempt to a level that access is denied. In a circumstance where it is true that the access should be denied then the Jasmines case automatically weakens and loses its base, but in conformity to with the constitution, the following provisions are availed; access is to be highly considered if they are motivated to enhance objectivity, inform the discussion on an issue of public interest and promote the effectiveness on the allocation of the public expenditure.
The above highlighted circumstances are exactly the key goals of Jasmine. The intention is actually to coin an objective on the particularly with a stronger defense on the budget cut. It is therefore, a relevant and a valid stand. The matter of education is of public interest and the decision is to affect all students publicly. It is therefore prudent to enhance objectivity and provide an oversight into the issue. Education is a right, funded by the public levies but it is open to adjustment based on the economic situation of the country which is acceptable. In this particular case, it questions why the minister refused to open the diary to scrutinize and determine whether the decision is planned or is based on economic affairs. It is constitutional not personal and aimed to benefit the entire Australian population.
The fact that it is a political agenda explains the reason why reasons of exemption and information privacy are brought to book. Notably, the diary in question is not personal but that which applies to the professional affairs only. It is motivated to carry the records of the meetings and plans related to the office operations.
Notably, the principal areas of consideration held by Jasmine in an attempt to oppose the position of the government is the allegation that; the stand taken is political and motivated to achieve the interests of a few. Also, it fails to provide an economic support as to why the university expenditure has been reduced yet it is a key national sector. Additionally, the fact that, the minister failed to disclose the diary that containing the record of the minutes and programs discussed which are of importance to the public raises questions hence suspicion. All these are backed by the constitution, they are legal and aims at enhancing the position of the debate and for purpose of meeting the legal needs of the citizens especially the University students. Also, even though, the aspect of validity is stronger, other areas of weakness to the case involves; what if the diary lacks concrete evidence to implicate the political affair into the decisions by the ministry. Also, the existence of an economic instability explaining the position and that was not captured in the tribunal.
Constitutionally, based on the demands of the freedom of information Act 1982, and section 11, the claims asserted by Jasmine are valid and she is right not to withdraw the case or subject it into a matter of consultation as that is bound to risk the democratic right of the students and the concerned stakeholders.
In regard to the judicial review case, the major Australian court concerned with the case is the Federal court of Australia established under the Federal Court of Australia Act 1976 though its actual mandate began in February 1977. The aim of the court is not to determine whether the decision approved is right or wrong but to consider the legality in the process of making such decisions. Based on the courts objective, it is mandated to assess the laws dispute. It has a jurisdiction bound to hear and offer clear determination on any constitutional matters. It is a position based on the judiciary Act 39B.
The constitution under the administrative appeal tribunal Act 1975, holds that the application for appealing to a tribunal is to be conducted by an individual or concerned organization within a period of 28days after the decision is issued, section 29(2). Furthermore, for the session to be held by the federal court, certain specific charges must be considered and paid for hearing to be conducted.
Constitutionally, before a given decision is made by the legislature, it must be debated to ensure that it meets the democratic right of the public. It is for this reason why the parliament representatives exist. Logically and based on the constitution, before such discussions are held, it should be open to public for scrutiny, discussions and comments to ensure that it meets their demands, FOI Act 1982, 3(2a,b). In this circumstance, the stakeholders who are the students, lecturers and members of other education bodies were to be consulted based on the budget. The concern is, public participation is key in the process of implementing government decisions especially those that directly hits on the rights of the people. On this basis, the Jasmine position is strong and enough to annul the government decision based on failure to follow the process hence against the position of the constitution.
FOI Act 22 is relevant following the refusal of the minister to disclose the information present in the document. It states that the individual or agency is bound to delete all the unnecessary information in the document instead of totally refusing and using that as the base of refusal. This is a strong evidence explaining the fact that something malicious must have been proceeding between the minister and key government officials. The constitution asserts that the document needs to be revealed and disclosed publicly, though it further provides a contradicting view on the same giving exceptions with similar conditions that disclosure could still occur. The bottom line is, any information of interest to the public is bound to be released publicly and not utilized in a manner in which it will benefit a few.
The grounds to which the minister failed to release disclose the diary is insufficient and fails to explain to entire legal affairs related to the document. Even though in his reasoning, he captured the matters of exemption, the aspect of privacy, reasonability and confidentiality were not well supported. The FOI Act section 33a(iii), provides a critical legal framework of which can be a point of consideration and since the minister failed to capture it, the act of denial is against the constitution. The section provides a view in regard to the protection of the confidential affairs of the business. The section asserts that, for there to be a good relationship...
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