Tutorial Questions week 3 PDF

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Tutorial Questions (week 3): Other Methods of Administrative Law Review Public vs government – civil dispute 1. The Ombudsman Act 1976 (Cth), and its state and territory cognates, provide certain criteria on which the Ombudsman may base a report or recommendation to an agency. Which of the following criteria provide that basis? (a) an administrative action appears to have been contrary to law; (b) an administrative action was taken for an improper purpose; (c) an administrative action was one for which reasons should have been given but were not given; (d) all of the above. 2. It is said that there are several essential criteria ‘for describing a body as an Ombudsman’. List four of these criteria. Australian and New Zealand Ombudsman Association: independence, define jurisdiction, investigative powers, accessibility, commitment to procedural fairness, accountability 3. What is the source of the powers exercised by the Ombudsman offices of the Commonwealth and of the states and territories? (a) statute; (b) equity; (c) common law; (d) the Constitution. 4. Which two of the following statements about the Commonwealth Ombudsman are correct? (a) a decision of the Ombudsman cannot be reviewed Administrative Decisions (Judicial Review) Act 1977 (Cth);

under

the

(b) the Ombudsman has jurisdiction to commence an ‘own motion’ investigation without receiving a complaint from a member of the public; (c) the Ombudsman can investigate the activities of any private company providing services to the public under a contract with a government agency; (d) the Ombudsman can recommend that damages be paid only where a decision is based on a mistake of law or fact; (e) the Ombudsman can make a recommendation in relation to a decision by a Minister; (f) the Ombudsman cannot make a recommendation for reform of legislation and government administrative practice when undertaking an ‘own motion’ investigation. Constitutional Considerations 1. It is said that the Constitution enshrines constitutional principles. Identify three of these.

or

contemplates

certain

Rule of law: legal/lawful authority behind government actions/activities, legal equality of government and citizens, civil liberties/individual rights protected by common law and statute Separation of power: separate and balance powers and functions of government Responsible government: sovereignty? Constitutionalism 2. Identify the three elements of the tripartite separation of governmental powers effected by ss 1, 61 and 72 of the Constitution. S 1 Legislative power: vested in the Federal Parliament S 61 Executive power: vested in the Queen and exercised by GovernorGeneral and extend to the execution and maintenance of the Constitution and laws of Cth S 71 Judicature & judicial power: vested in the High Court S 72 appointment of justice 3. Succinctly state the principle enunciated in R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254. Federal judicial power can only be conferred upon Chapter III Courts, and Chapter III Courts cannot exercise non-judicial power 4. Identify some of the distinguishing features of a Ch III Court. -

Only court appointed in accordance with the Constitution (s 71 & 72)

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Federal jurisdiction and original jurisdiction under the Constitution

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Primary function be judicial function...