MLL424 – Assignment 1
Judicial Review Application (3000 Words)
Relevant Legislation: Primary Industries Research and Development Act 1989 (Cth) and any relevant subordinate legislation.
[1] Mr Steven Vai is a very successful rice farmer and has been one for the past 20 years. In addition to running his rice farm empire, he was also involved in several advocacy groups and committees for rice farmers. He is particularly proud of his work when he was on the board of the Ricegrowers Association of Australia. Mr Vai has lived in Australia his whole life although his parents were originally from Italy. He also has a Masters of Food and Agribusiness from Hypothetical University which is an accredited Australian university.
[2] AgriFutures is the trading name for the Rural Industries Research and Development Corporation. Its functions, as set out in the Primary Industries Research and Development Act 1989 (Cth) (‘the Act’), include investigating and evaluating the requirements for research and development in industries in respect of which it was established.
[3] On the 15th of May 2020, Dr Orion Penny – with a PhD in Agricultural Science – decided to step down from the board of directors of AgriFutures as she wanted to pursue a career in music instead. This created a vacancy on the board of AgriFutures, setting in motion the selection process for hiring a replacement director.
[4] On the 20th of May 2020, the Minister for Agriculture, Drought and Emergency Management
(the Minister) appointed Mr. Gottardo and Mr. Lane to be Presiding Members of the Selection Committee for the new position (there was no existing Selection Committee). The Minister made the appointment over the phone and told Mr. Gottardo and Mr. Lane to provide a nominee in the next three months. [Note: students may assume that AgriFutures is not a predominantly Commonwealth funded R&D Corporation].
[5] Mr. Gottardo and Mr. Lane started the process by having meetings with the representative organisations of AgriFutures. Together, they arranged meetings with each individual
representative organisation rather than with all the organisations in one place as it was too difficult to arrange a date convenient for everyone. After much deliberation with the representative organisations of AgriFutures, Mr Gottardo and Mr. Lane decided that Mr. Lane should head the Selection Committee and nominated four other Selection Committee members. The deliberations with the representative organisations emphasised both the need for the Selection Committee to have expertise and the need for diversity. Mr. Gottardo and Mr. Lane are satisfied that the nominated Selection Committee is a fairly diverse and expert group.
[6] Mr. Gottardo and Mr. Lane attempted to contact the Minister about the identity of the four Selection Committee members, but the Minister commented that she was too busy and ‘I trust whatever people you have appointed’. They took the statement as an approval of the Selection Committee and commenced the process of appointing a new director.
[7] On the 7th of July 2020 the new board position was advertised in Vegetables Australia and Potatoes Australia which are the leading industry magazines for those in the agricultural industry in Australia.
These magazines are widely read by industry insiders across all Australian States and Territories. The Selection Committee’s rationale for choosing these magazines was that these industry magazines do have news in them (they report factual stories) and experts are reading these magazines. There is no point advertising in a general newspaper that is more expensive while potential applicants with the relevant experience and expertise would be reading Vegetables Australia and Potatoes Australia anyway. The Selection Committee also invited AgriFutures’ representative organisations to make suggestions for nominees.
[8] The advertisement read as follows:
POSITION: DIRECTOR FOR AGRIFUTURES AUSTRALIA
AgriFutures is a government body dedicated towards research and development of rural industries in Australia. We are inviting wellqualified candidates to apply to be a director on the board of AgriFutures Australia.
A successful job candidate would meet the following selection criteria:
(a) has expertise in production, processing or marketing of rural industry commodities, conservation or management of natural resources, environmental and ecological matters, or other matters listed in s 131 of the Primary Industries Research and Development Act 1989 (Cth).
(b) preferably has board experience on a related agricultural body.
(c) has at least a Masters level qualification in a relevant field.
Please send a cover letter, 4 page resume and selection criteria document to AgriFuturesSelect@gmail.com
The Selection Committee
[9] Mr Vai was reading a delightful report on potato farming in Potatoes Australia when he saw the advertisement for the position. He is very passionate about the agriculture industry and so decides he wants to apply for the position. The advertisement required that applicants demonstrate expertise in one of the fields listed in s 131 of the Act. In writing his application Mr. Vai primarily promoted himself as having expertise in commodity production and business management. He spent several days polishing his application, getting feedback from friends and colleagues, and finally sent it out with confidence.
[10] After receiving several applications, the Selection Committee met with Ms Katie Hull – the
Chairperson of AgriFutures – to discuss what she was looking for in a replacement for Dr. Penny. Due to COVID-19, the various farming sectors that AgriFutures works with have been having difficulties hiring workers. Consequently, Ms Hull commented that they probably need someone with expertise in legal matters, especially when it comes to labour laws and conditions. Further, she would like to see more diversity on the board.
[11] On the 26th of July, Mr. Vai received a phone call with the good news that he is going to get an interview. At the interview, Mr. Vai met with Mr. Lane and the other Selection Committee members. It turns out that Mr. Vai knew one of the Selection Committee members from Mr Vai’s previous stint on the board of the Ricegrowers Association of Australian. The Selection Committee member lets the other members know of their acquaintance and continues with her committee duties.
[12] Unfortunately for Mr Vai the Selection Committee did not nominate him and nominates someone else. On the 10th of August they send the nomination to the Minister who is – at the time of this judicial review application - yet to have made a decision.
[13] On the 15th of August, Mr Vai was informed about his rejection with the following email:
Dear Mr Vai
Unfortunately we have not chosen to nominate you for board member of AgriFuture. While your resume was certainly impressive there were many well-qualified applicants and we chose to go in another direction.
We thank you for your time.
Sean Lane
[14] Mr. Vai wrote back to ask if he could get any feedback on the application. Mr. Lane replied with the following details: Dear Mr. Vai
I can reveal that the following factors were taken into consideration by the Selection Committee:
(1) The Chair of AgriFuture indicated that they needed more legal expertise on the board and that was lacking in your application.
(2) As part of our functions under s 130 of the Primary Industries Research and Development Act 1989 (Cth) we have to select a nominee in such a way that encourages diversity among board members. We have decided that due to a large proportion of white males in the board, it was not appropriate to select another one.
(3) While you do have a Masters of Food and Agribusiness from Hypothetical University, we do not consider the degrees issued by the Hypothetical University to be a sufficient signal of quality.
(4) Based on your personality we did not think you were a great fit into the work culture for
AgriFutures.
We hope this helps you understand our decision.
Sean Lane
[15] Mr. Vai made a Freedom of Information (FOI) application to find out who was nominated for the position. After some back and forth with the Office of the Australian Information
Commissioner, the qualifications and background of the nominee were revealed (but not his name). The documents identify that the person selected by the committee is from an ethnic minority group but has no experience in the agriculture industry, no experience sitting on other boards, and only has a double degree bachelors of law and economics. The FOI documentation also shows that the email from the Selection Committee to the Minister only listed the name of the nominee and no other details about the nominee.
[16] The Minister is currently away on holiday and has yet to have made a decision on the nominee. Before the Minister left, however, the Minister did indicate that she was worried about the qualifications of the nominee and was considering rejecting the nomination. The email of the Minister to Mr Lane reads as follows:
Dear Mr Lane,
I am very pleased with all the hard work you have put into interviews and various consultations over the past few months. I am, however, slightly concerned with the quality of the nominee. I suggest we speak about this when I get back from my vacation.
The Honourable Minister
Mr. Vai hires you to write an Administrative Decisions (Judicial Review) Act 1977 (Cth) application to the Federal Court. He wants you to challenge the nomination by the Selection Committee.
Students may assume that all facts above are true and can be put forward in your written submissions.
II INSTRUCTIONS FOR STUDENTS
i. Based on the Facts Scenario, your knowledge of the unit and your further research into relevant legislation and cases, you are partially to prepare an
Application for Judicial Review in the Federal Court of Australia under the ADJR Act comprising a completed Application for Judicial Review Form in accordance with these instructions.
ii. These instructions are intended to make it easier for you to complete the assignment satisfactorily, and to ensure that you are only assessed in relation to Topics 1 to 6 of the unit (with exception of Justiciability which is not assessed for Assignment 1). If you do not comply with these instructions you will find the Assignment much more difficult to complete, and your answer will contain irrelevant material for which you will not receive any marks.
iii. A point on Topic 6 - Students do not need to be know the minutiae of remedies for Assignment 1 (although they will have to for the exam). What students need to identify is (A) are they getting remedies for a decision, conduct, or failure to make a decision and (B) what order do they want – e.g. to quash a decision; declare rights; direct parties to do or refrain from something (see s 16 ADJR Act). iv. Although you are to make an application under the ADJR Act you will still need to plead that the relevant decision-maker’s specific decision in this instance is a ‘decision of an administrative character made under an enactment’ (or a ‘failure to make a decision’, or ‘conduct related to the making of a decision’, or one or more of the above), in terms of the ADJR Act, and hence reviewable under that
Act (these issues will be covered in Topics 2 - 3).
v. The relevant forms will be placed shortly in the CloudDeakin Assessment
Resources / forms folder. Your Application must be supported by written
submissions for the Applicant. The written submissions should set out the legal arguments that you wish to make in support of your Application for review. The submissions should be sufficiently detailed so that a judge reading them can understand the legal basis upon which you seek to challenge the conduct or decision. They must also be succinct.
vi. The application will consist of Form 66 and then written submissions. The application must start with form 66 which can be found on the CloudDeakin Assessment 1 page. Form 66 is intended to be a brief summary of the submissions. While form 66 indicates that there needs to be a separate form for each decision / conduct / failure, we will allow multiple reviews to be in the same document (should you think that you need multiple reviews).
After the end of Form 66, students may then proceed to the written submissions proper in any format the student decides. Combine forms 66 and the written submissions in the same document, with form 66 coming first.
vii. Example High Distinction Applications and written submissions will shortly be provided in the Assessment Resources Folder in CloudDeakin (see Sample HD papers) and you are encouraged to refer to them for guidance as to how to complete this task. Do note that in previous years, students completed their written submissions using Form 17 (in addition to Form 66). We no longer need Form 17. Students can now follow any format for the written submission, but should still pay attention to how previous HD students structured the content -
e.g. starting with jurisdiction first then moving on to standing etc. Students do still need to complete Form 66 first.
A sample of what we are looking for in terms of combining the documents will be uploaded later in trimester.
viii. There is no minimum or maximum number of grounds you have to allege, however do note that there is a danger when both arguing too many and too few grounds. Make too many submissions and it is unlikely you can address enough law and objections to satisfactorily convince a judge of your claim. Make too few submissions, and you will be in trouble if a judge does not agree with the grounds you chose. It is thus a balancing act.
ix. You can assume that the law which applies to this assignment is the law as at 12 March 2021 (that is, in the unlikely event that the law changes after that date, by, for example, an amendment to the Act or subordinate legislation, you do not need to take these changes into account).
x. The Unit Team will be seeking any requests for clarifications of the facts over the next few weeks, with all clarifications due by the end of Week 4. If we think there are any legitimate issues for clarification we will then release a Factual Addendum in Week 5. Please post these requests for clarifications either on the Discussion
Board or through an email.
xi. There may be issues of law relevant to the satisfactory completion of this assignment that you may not cover in classes. This is intentional, and it is expected that you will research those issues on your own, or with the assistance of your peers and the Law Library staff.
xii. The assignment is worth 50% of the total marks for MLL424.
xiii. The word limit is 3000 words. The word count excludes footnotes and the existing details on the application form, but footnotes must only include the citation of appropriate references, not substantial text or analysis. Examiners will not read any part of the assignment once the word limit is reached. There is no
5% leeway. Please include the word count at the conclusion of your assignment.
xiv. The assignment must be formatted with font no smaller than 12 point, with line spacing of 1.5.
xv. All pages must be numbered and include your student ID number in the header or footer.
xvi. All electronic files must be uploaded to CloudDeakin in either .doc or .docx format. Feedback will not be provided if it is uploaded in another format, such as .pdf.
xvii. You must correctly reference and cite other peoples words, ideas, research findings or information. You must reference the resources you use … following the legal referencing style in the 4th edition, 2018 version of the Australian Guide to Legal Citation. If you have any questions, please use the referencing support available: http://www.deakin.edu.au/students/study-support/referencing xviii. The assignment is due by 8.00pm (AET) on Friday, 30th April 2021. All
assignments must be submitted electronically via CloudDeakin by the due date.
xix. In accordance with Faculty policy, every effort will be made to ensure that assignments are marked within 15 working days.
xx. In accordance with Faculty Policy, if you submit an assignment late, with no extension granted, 5% of your final mark for the assignment will be deducted per calendar day for the first five calendar days from the due date. For a 50 mark assignment, each day the assignment is late will result in a penalty of 2.5 marks being deducted. After the five calendar days have elapsed the assignment will not be marked. The assignment will be held over and may, in limited circumstances, be taken into account in marking after the exam in determining whether you pass or fail the unit.
xxi. Extensions are not granted lightly, as this will disrupt marking, and is unfair to most students who have complied with the submission deadline. If you are experiencing serious and exceptional circumstances that are beyond your control (such as medical conditions of a serious nature, family death or breakdown, or hardship or trauma; not travel, computer failure, or work commitments) please go to https://www.deakin.edu.au/students/faculties/buslaw/studentsupport/assignment-extensions and follow the instructions and advice there. xxii. Please note that when you submit your assignment via CloudDeakin you are required to make a plagiarism / collusion declaration in the following form. As a result, an assignment cover sheet is not required to be submitted.