CQUniversity LAWS12061 Administrative Law Assignment: Judicial Review

This assignment delves into the core concepts of administrative law, primarily focusing on judicial review. It presents three distinct case studies: the first examines the suspension of a PhD scholarship due to plagiarism, exploring the application of judicial review in such scenarios and the implications of the executive's decision. The second case considers the advantages and limitations of judicial review, especially the role of the Administrative Appeals Tribunal (AAT). The final case involves a fraud committed against the Commonwealth Department of Health, where the assignment offers advice on potential legal outcomes and the individual's responsibilities. The assignment draws on legal principles, legislation, and case precedents to analyze the facts, providing a comprehensive understanding of administrative law principles and their practical application.

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Administrative Law

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Question 1 and 2:
Facts of the case:
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.
Q1.
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 review1.
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 only2.
1 Neil Hawke, Introduction to administrative law (Routledge-Cavendish, 2013).

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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 permitted3. 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.
Q2.
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 well4. 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
2 J. Woodford Howard Jr, Courts of appeals in the federal judicial system: A study of the second,
fifth, and District of Columbia circuits (Princeton University Press, 2014).
3 Mark Tushnet, ‘New forms of judicial review and the persistence of rights-and democracy-
based worries’ (2017) Bills of Rights. Routledge 270.
4 Peter Cane, Administrative law (OUP Oxford, 2011).

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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 excluded5.
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 review6.
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 taken7. 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.
5 Justin Fox and Matthew C. Stephenson, ‘Judicial review as a response to political posturing’
(2011) 105(2) American Political Science Review 400.
6 Emily Hammond and David L. Markell, ‘Administrative Proxies for Judicial Review: Building
Legitimacy from the Inside-Out’ (2013) 37 Harv. Envtl. L. Rev. 313.
7 Andreas Von Staden, ‘The democratic legitimacy of judicial review beyond the state:
Normative subsidiarity and judicial standards of review’ (2012) 10(4) International journal of
constitutional law 1033

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Question 3:
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 delay8. 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 department9. The car is considered to
purchased by him from the accounts of his fraud. However, if he can prove that the Bentley
8 Michael Allen and Brian Thompson, Cases and materials on constitutional and administrative
law (Oxford University Press, 2011).

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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 Department10. 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.
9 Will Bateman, ‘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.
10 Michael Asimow, ‘Five models of administrative adjudication’ (2015) 63(1) The American
Journal of Comparative Law 29.

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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.