Laws 3300 Administrative Law
Question 1(A) (50%)
The Childcare Centres Act 2010 (Cth) (the Act) [a fictional Act] creates the Childcare Centre
Authority (the Authority). Relevantly, the Authority’s function is to consider and determine
applications for licences allowing persons to operate childcare centres.
The Act prescribes a number of matters the Authority must take into account in deciding whether to
grant an applicant such a licence. One is that the applicant is a ‘fit and proper person’.
Mr Liam Gray, who received his Australian citizenship by conferral, seeks a licence under the Act.
His application appears to meet all criteria specified by the Act. During the course of its consideration
of his application, however, it comes to the Authority’s attention, via an anonymous letter, that some
twenty years ago Mr Gray was convicted of a number of burglary offences.
A day after receiving the letter, the Authority, refuses to grant him a licence. It provides reasons for
its decision which include this passage:
Nevertheless, given the fact of Mr Gray’s burglary convictions in 1998 and tendency towards
crime which appears common to people from his country of origin, the Authority is of the
view that he is incapable of meeting the “fit and proper person” criterion in the Act, and
accordingly his application for a statutory licence is refused.
1) Mr Gray approaches you. Advise him whether he may commence review proceedings
challenging the Authority’s refusal to grant him a licence and, if so, where, and what
issues are likely to arise.
Recall Mr Liam Gray from Question 1(A). Assume that the Authority’s initial consideration of his
application did not uncover his 1998 burglary convictions and that his application duly proceeded to
decision and he was granted a licence under the Act.
18 months after the grant of the statutory licence, the Authority receives anonymous information to
the effect that Mr Gray is operating his licensed childcare centre contrary to the terms of his licence.
The information suggests that children at the centre are insufficiently supervised and that some staff
are insufficiently qualified.
(For the purpose of the following analysis, assume that certain staffing ratios and certain staff
qualifications are statutory conditions of Mr Gray’s licence).
The Authority is concerned by the information. It decides to engage a firm of solicitors, Best & Co,
to investigate Mr Liam Gray’s conduct of the centre and provide a report to the Authority.
2) Mr Liam Gray approaches you. He has heard rumours about the information but does
not know exactly what it is or who provided it to the Authority. He is concerned that
Best & Co’s investigation of him is going to be a “headache” for his business and
prejudice its commercial reputation. He seeks your advice about whether he can “shut
down” the Best & Co investigation.
Question 2 (25%)
The Foreign Compensation (East Timor) Act 2004 (Cth) vests certain functions in the Foreign
Compensation Board. It also provides:
Section 1. A company may claim compensation for loss of property situated off the coast of
East Timor on 4 June 2004.
Section 2. The Foreign Compensation Board may grant a claim provided the company which
is claiming compensation is based in Australia.
Section 3. The determination by the Board of any application made to it under this Act is final
and conclusive and must not be challenged, appealed against, reviewed, quashed or called in
question in any legal proceedings whatsoever.
Anapurna Corporation Pty Ltd (AC) is a company registered under the Corporations Act 2001 (Cth)
with an office in Darwin. It is part of a multinational group of companies involved in oil exploration.
AC was licensed to conduct oil exploration off the East Timor coast. AC had been prospecting for oil
in the region since 1996. The AC Board has been donating funds to East Timor for some time, with
a view to obtaining permission from the East Timorese Government to prospect in the area should
existing licences of foreign companies be cancelled.
On 4 June 2004, all existing prospecting leases off the coast of East Timor were cancelled as part of
the dispute over the boundaries of East Timor’s territorial waters. AC seeks compensation from the
Foreign Compensation Board. The claim is rejected.
The Board’s reasons are furnished by letter. In part, the letter says:
The Board does not have jurisdiction to consider the application as AC is not based in
Australia since information available to it indicates that the company’s headquarters are in
New Delhi, India.
The Board continued:
Even if this is incorrect, the Board would still reject your claim, as it is the policy of the Board
only to pay compensation to companies which are making a claim in respect of physical
property. You are only claiming for the loss of the licence, not for physical property. Finally,
the Board is not willing to uphold a claim from a company which has been donating money
to the East Timorese Government since it appears likely that the company will be able to
obtain permission from the East Timorese Government to continue prospecting in the area.
1) AC seeks your advice about whether it can challenge the decision.
Fishwatch, a group trying to increase numbers of pipefish (found near the coast of East Timor), feels
that the decision to cancel all existing prospecting leases off the coast of East Timor will hardly impact
pipefish numbers and takes the view that it is unnecessary to cancel the leases just because of the
dispute over the boundaries of East Timor’s territorial waters.
2) Fishwatch seeks your advice about whether it can challenge the decision.
Question 3 (25%)
What is the so-called ‘integrity branch’ of government? Should it be considered the fourth branch of
government and why or why not?
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