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VU21647 Research The Application Of Administrative Law

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VU21647 Research The Application Of Administrative Law

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Course Code: VU21647
University: Victoria University

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Country: Australia

Questions
1.a) List the two main tribunals which you would apply to seek a merits review of a decision of a state or federal government department? What laws are these tribunals created under?
b) Jack has had his Australian Migration Visa application refused by the Department of Immigration. He wishes to appeal for a full merits review to the Administrative Appeals Tribunal. Please advise Jack of his time to appeal, the role of the AAT, the appeal process for a Migration Decision, the law to be applied, the application forms, costs, how the Tribunal will process and hear his case.
c) Peter has had his building plans to build his dream home in Footscray refused by the Footscray City Council. Peter wants to take the matter for a review at Victorian Civil and Administrative Tribunal for a review. Please advise Peter of his time to appeal, the role of the VCAT, the appeal process for a Planning Review, the law to be applied, the application forms, the costs, how the Tribunal will process and hear his case.
2. a) List the role and function of the State and Federal Ombudsman, their functions and powers and procedures.
b) Melissa constantly receives unwanted and annoying phone calls from the Silly Billy Phone Company at night demanding she switch her phone plan for a “better deal”. They even send her a letter in the mail saying she has been switched over to a new phone plan with them based on their phone call. Mellissa never agreed to any such thing.
Melissa wants to complain to the Telecommunications Ombudsman. She asks your advice on the role of the Ombudsman, the law for the Telecommunications Ombudsman, the powers of the Ombudsman, the process, costs, application fees if any, and how the Ombudsman might deal with her case.
3. a) Explain the concept of Freedom of Information, the laws that creates it, why it is useful and what are its limits (matters which a department of the government can refuse to provide)
b) Jane was a witness to an assault in Melbourne City a few weeks. She saw what happened and a police officer from Victoria Police took down her statement. Jane wants to have a copy of her witness statement, the full incident details, and also basic details of the interviewing officer so she knows whom to contact if she has further information on the matter.
Advise Jane of her rights, the law and the process for making a Freedom of Information Request to the Victoria Police. Are there matters which the police may wish to refuse to disclose under the FOI rules, please explain?

Answers

1. a) (1). Commonwealth Administrative Appeal Review Tribunal 1975
(2). Victoria Administrative Appeal Review Tribunal 1984.
The tribunals were established under the Administrative Appeals Tribunal Act 1975 and Administrative Appeals Tribunal Act 1984 respectively.
b) Jack should apply for a merits review within the time indicated in the notice of rejection from the department. The AAT reviews the decision and in doing such review, it has the jurisdiction and power to; vary, affirm set aside or remit the decision back to be reconsidered by the decision-maker.
In applying for review, Jack fills and lodges a form known as ‘Application for Review’ by paying the application fee. The application is lodged by post, online, by mail or in person. The application fee payable is $1764 which is subject to reduction by 50% if the tribunal believes that the fees paid is likely to cause financial hardship on the part of the applicant. The review is undertaken under the Migration Act 1958.
The AAT sends an acknowledgement to the applicant confirming receipt of the application. The matter is the assigned to a member of the Tribunal who reviews all the documents. The applicant is the invited to appear at the hearing. A decision may be given at the end of the hearing or be sent to the applicant together with reasons for the decision.
c) Time of Appeal for Peter is 60 days of the notice of the decision refusing the permit. The VACT has the following roles: the provision of affordable, quality and timely access to justice in civil matters, the reduction of pressure in courts and to review administrative decisions.
The form applicable here is the ‘application for review permit application’.
The process of appeal begins with the applicant lodging the application and paying the prescribed fee. The application is reviewed to ascertain jurisdiction. It is then given a reference number. VCAT then notifies the applicant on how the case will be handled through an initiating order. The applicant may be required by the initiating order to effect service on the relevant authority. After every party has completed their parts, the file is reviewed and set for hearing.
Parties bear their own costs. The applicable law is the Planning and Environment Act 1987.
2. a) An ombudsman refers to an independent investigating office charged with investigating government agencies’ actions as well as inaction upon the lodgment of a complaint or through its own volition.
The powers of the ombudsman include making recommendations and investigating administrative actions. There is a commonwealth ombudsman that serves in the federal government; each state also has a states ombudsman. Their roles are almost similar except for the difference in jurisdiction.
The federal ombudsman investigates complaints of administrative action or inaction by a Commonwealth agency or official. The ombudsman then reports his findings to the agency, the minister responsible and sometimes to parliament or the prime Minister. The ombudsman’s powers include making recommendation to the agency on a course of action.
State ombudsman offices are created to deal with administrative complaints in every state government. For instance, a state may have an office of the ombudsman that deals with the corruption in the police service. These ombudsmen receive and investigate complaints by people who hold that they have been subjected to unfair treatment by a state agency.
The procedure followed is first invoking the jurisdiction of the Ombudsman by lodging a complaint which can be oral or in writing. The person lodging a complaint should have interest in the matter. After admitting a complaint, the ombudsman informs the relevant agency and gives them time to respond. Upon receipt of the response, the ombudsman may, depending on the response investigate the matter or engage the parties in negotiation. Depending on the method adopted, the ombudsman then gives a report with recommendations to the agency and parliament or the Responsible Minister.
b) In advising Mellisa, the telecommunications ombudsman is charged with the provision of independent resolution of disputes for internet and telephone complaints. The process is free and available to small business consumers and individuals.
The Telecommunications Industry Ombudsman (TIO) handles complaints also from land owners on which a carrier intends to install facilities. A person with a complaint with mobile phone or service tries to resolve the said problem with the service provider at first. Where the service provider does not respond, such person complains to the TIO. The TIO then contacts the service provider and gives them about 10 days to have the problem fixed.
3. a) Freedom of information entitles an individual the right to access government files relating to an agency or a department of the government. A person has access to information in the hands of government. The relevant law guiding freedom of information is the Victoria Freedom of Information Act 1982. Freedom of information enables an individual access to their personal information and can be corrected if found to be inaccurate. This right however has limitations; it does not extend to anything likely to affect police investigations, confidential government business dealings, government secret papers and documents on public interest, cabinet documents and documents that are likely to affect personal privacy.
b) Jane has right to access to information under the Victoria Freedom of Information Act 1982. There is an information officer who is contacted directly by the applicant. The application is made in writing by filing the relevant form and paying the application fee. The fees payable includes payment for information as well as photocopying fees. This matter is under police investigation. Documents that may affect the police investigations; For instance, the full incident details may be refused as it is directly connected to investigations and exempted under the FOI rules. All the basic details of the investigating officer may also be refused under the rules so as to protect investigations and ensure the safety of the investigating officer.
Decisions of FOI are also subject to review under the VCAT which is likely to make a decision on the disclosure based on the merits of the case.
References
Allen, Michael, and Brian Thompson Cases and materials on constitutional and administrative law (Oxford University Press, 2011)
Barnett, Hilaire. Constitutional & administrative law (Routledge, 2011)
Forbes, John RS Justice in tribunals (Federation Press, 2010)
Head, Michael. Administrative law: Context and critique (2017)
Rose-Ackerman, Susan, and Peter L. Lindseth, eds. Comparative administrative law (Edward Elgar Publishing, 2010)
Legislation
Victoria Freedom of Information Act 1982
Planning and Environment Act 1987
Migration Act 1958

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