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Judicial Review and Limitations

Gemma Stockwell was very pleased with the way things were going with her life. A recipient of a prestigious Bright Stars Commonwealth PhD Scholarship administered by the Commonwealth Department of Education and Training (DET) under the Bright Stars Commonwealth PhD Scholarship Fund Act 2018 (Cth) and an annual tax-free stipend of $45,000, there was little to complain about life. She enjoyed doing her PhD and could afford payments for her car and personal loans because of her PhD stipend. Her world experienced a seismic shock, however, when her usual fortnightly PhD stipend was not deposited by the DET into her bank account. She subsequently received a letter from the DET informing her that upon her receipt of the letter and until further notice, her scholarship stipend was suspended. According to the letter, there was reason to believe that a substantial portion of her Honours dissertation was plagiarised as shown by a high Turnitin similarity score. Plagiarism was a ground for disqualification and ineligibility from the PhD Scholarship under Bright Stars Commonwealth PhD Scholarship Fund Act 2018 (Cth).

Without her stipend, Gemma could not pay for her car and personal loans, and her other personal expenses. She has come to you, a Solicitor, for legal advice.

1. Under the facts, explain fully whether judicial review is available and the limitations of judicial review.

2. Under the facts, explain fully when a review by the Administrative Appeals Tribunal might be available, and any advantages and disadvantages of such a merit review.

Jordan Stockton thought he could get away with systematic fraud upon the Commonwealth Department of Health (“the Department”) for several years. Through the years, he had, as a business contractor with close connections to a person in the Department’s Credit and Collection office, succeeded in illegally over-billing the Department by close to $1.2 million. Without Jordan’s knowledge, however, he had been the target of a fraud investigation by the Department which ultimately uncovered the fraud that he perpetrated.

When Jordan, riding his $580,000 Bentley Continental Supersports car, visited the Department’s Brisbane office to follow up further payments, he was advised by the Department’s Legal Officer that his fraud had been uncovered and that it was now the subject of a criminal investigation by the Australian Federal Police. In the meantime, he was advised by the Department’s Legal Officer that the Department – in the exercise of its non-statutory executive powers – was impounding his Bentley Continental Supersports car as part of the proceeds of a crime and that he could no longer drive it out of the Department’s parking space.

3. Provide Jordan legal advice.

Judicial Review and Limitations

Gemma Stockwell was the recipient of Bright Stars Commonwealth PhD Scholarship under the Commonwealth Department of Education and Training (DET) under Bright Stars Commonwealth PhD Scholarship Fund Act 2018. She also received an annual tax free stipend of  $45000. She was very happy with her life. She enjoyed her PhD course and afford the car payments personal loans for the PhD stipend. When, the Fortnightly stipend was not deposited by DET to her bank account, her life changed drastically. DET has sent her a letter that her scholarship stipend was suspended until further notice. The reason was that a great part of her honors dissertation was under plagiarism as revealed by Turnitin. Plagiarism became the major cause of her disqualification and eligibility for the PhD scholarship under the act of Bright Stars Commonwealth. Consequently, Gemma could not pay her bills and other personal payments.

Judicial review is the process whereby the judiciary keeps a check upon the actions of the legislature and the executive. The main target of the implementation of the judicial review is to ensure that the legislature and the executive do not exceed their powers or go against the laws or go beyond the laws of the government. The actions undertaken by the executive and the legislature would be under a review under the court possessing the power of judicial review.

An illegal and unlawful order from the executive or any action of the executive which is beyond the laws in the constitution, would be declared void by the courts under Judicial Review.

There are various limitations imposed upon the exercise of judicial review. The courts which are exercising the power of judicial review should possess the power to do the same. The courts cannot go beyond the rules stated in the station. The function of judicial review does not function in cases of emergency in the state. If in the inquiry, it is found that the decisions taken by the executive upon a certain situation is correct and it is in accordance with the rules of common law, the judicial review is limited to the judiciary only.

Thus, after reading the facts of the case, it can be concluded that the decision taken by the executive was correct. Gemma Stockwell was guilty of plagiarism. The software Turnitin can detect the parts of an essay or report or any other work submitted by the parties. According to the law, while working on an assignment or a project, Turnitin allows a plagiarism of 10% without any dispute. This is because, certain terms and laws cannot be paraphrased. They have to be used as it is. Hence, the 10% is considered to be nothing. But in this case, the plagiarism used by Gemma was upon a substantial part. Commission of plagiarism in the Bright Stars Commonwealth PhD Program was not permitted. It simply meant that the candidate who has received the scholarship was copying texts from other sources instead of giving the effort of writing himself. The terms of the scholarship were violated. Gemma was enjoying the things going in her life and she was also enjoying her PhD course. But she was simply copying notes from one source to another. This was not the right way to complete the actions under the Commonwealth PhD course. Hence, her fortnightly stipend was cancelled on account of her misbehavior. The decision of the executive was correct. Hence the exercise of judicial review would not be applicable here.

Administrative Appeals Tribunal Review and Advantages and Disadvantages

According to the law, through the system of judicial review, checks and balances can be put upon the illicit actions of the legislature and the executive, by the courts of law. There are various limitations upon the imposition of the judicial review. However, there are plenty of advantages of the exercise of judicial review. The judicial review system serves the principle of legality well. This leads to promising fact that all the agencies can be controlled and monitored. Thus, there can be prevention of the illicit exercise of power by these agencies. Judicial review successfully indulges in the promotion of the effective resource allocation. It prevents the unscrupulous use of the resources by the agencies on account of power. It helps in the prohibition of the wastage of the resources which can be deemed to be arbitrary. It helps in bringing about the functioning of laws which are legal, legitimate and would not cause prejudice to any party. Only the laws which are legal can be imposed. The illegitimate rules are excluded. Another advantage of judicial review is the creation of enhancements and improvements in the real world. Under it, due to the proper allocation of the resources, the economic stability of a country would be improved, there would be an improved distribution of wealth and there would be development in the creation of new markets and opportunities. The differences in the work sector would also done away with. Thus, the above were the various advantages of the system of Judicial review.

After reading the facts of the case, it can be stated that a review by the Administrative Appeals Tribunal would be available if the facts of the case were a bit different. If the content of the plagiarism was below 10% then the review by the Administrative Appeals Tribunal over the executive would be available and this judicial review would make sure that the laws imposed by the commonwealth executive is at par with the principle of legality. The judicial review would also ensure that only legitimate laws are taken into action by the executive and the prevention of indiscriminate actions could be taken. Yet, in this case Gemma has violated the conditions of the Bright Stars Commonwealth PhD scholarship program. The creation of the commission of plagiarism in a substantial part of the paper had made her honors dissertation a copied document. It is like, she has simply copied things to there from different sources. Had the plagiarism been less, the Administrative Appeal Tribunal would have been then empowered to take valid actions.

Facts of the Case for Gemma Stockwell

Facts of the case: Jordan Stockton was under the impression that he could do fraud systematically to the Commonwealth Department of Health for many years. over the years he had close relations with a person in the Department’s credit and collection sector, as a business contractor. He created the over-billing of the department of about $1.2 million. Jordan was not aware that he was secretly examined for fraud and ultimately, he was caught. Jordan possessed a $580,000 Bentley Continental Super sports car. He was informed Department’s legal officer that his fraud was under criminal investigation under the Australian Federal Police. In the mean time he was no more permitted to use the Bentley sports car beyond the premises of the department. The car would be taken as the outcome of the crime committed by him. This is committed on account of the non statutory executive powers.

The advice: After a close perusal of the above facts of the case, it is clear that Jordan has been guilty of committing fraud. He has done this not once, but over the years. There are various evidences found against him. Moreover, his case has been shifted for criminal investigation under the Australian Federal Police. It is proved that he is guilty beyond any reasonable doubt. There is no chance of escape. He would be convicted at any cost. So, in order to lighten the situation it would be wise if Jordan surrendered himself and confessed his guilt. It would be the duty of Jordan to repay all the amounts that he has accumulated to himself, to the Commonwealth Department of Health without any kind of delay. He should make a list of the items bought by him over these years of defrauding the department and return them to the Department. Or, he could also arrange the entire amount which he has been stealing from the Department through his fraudulent activities as soon as possible. It is also advanced to him that he should now follow all rules and regulations imposed upon him on account of his betrayal towards the company.

The measures taken against him by the department should be strictly adhered to, by him. He must follow the strict norms imposed upon him. He should not drive his $580,000 Bentley Super sports outside the premises of the parking area of the department. The car is considered to purchased by him from the accounts of his fraud. However, if he can prove that the Bentley Continental Super sports was not a product of the proceeds of his crime, he could be permitted to drive it beyond the premises of the Department. If he is unable to fulfill and settle all the payments within the specified time, he would be liable to sell off all his belongings in order to repay all his debts to the Department. Thus, upon following the above advices, he could be tried leniently in court by the sitting judges. His punishment would be reduced if he himself aids in the faster repayment to the department rather than escaping.

References

Allen, Michael, and Brian Thompson, Cases and materials on constitutional and administrative law (Oxford University Press, 2011).

Asimow, Michael, ‘Five models of administrative adjudication’ (2015) 63(1) The American Journal of Comparative Law 3-32.

Bateman, Will, ‘The Constitution and the Substantive Principles of Judicial Review: The Full Scope of the Entrenched Minimum Provision of Judicial Review’ (2011) 39 Fed. L. Rev. 463.

Cane, Peter, Administrative law (OUP Oxford, 2011).

Fox, Justin, and Matthew C. Stephenson, ‘Judicial review as a response to political posturing’ (2011) 105(2) American Political Science Review 397-414.

Hammond, Emily, and David L. Markell, ‘Administrative Proxies for Judicial Review: Building Legitimacy from the Inside-Out’ (2013) 37 Harv. Envtl. L. Rev. 313.

Hawke, Neil, Introduction to administrative law (Routledge-Cavendish, 2013).

Howard Jr, J. Woodford, Courts of appeals in the federal judicial system: A study of the second, fifth, and District of Columbia circuits (Princeton University Press, 2014).

Tushnet, Mark, ‘New forms of judicial review and the persistence of rights-and democracy-based worries’ (2017) Bills of Rights. Routledge 265-290.

Von Staden, Andreas, ‘The democratic legitimacy of judicial review beyond the state: Normative subsidiarity and judicial standards of review’ (2012) 10(4) International journal of constitutional law 1023-1049.

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