Law Essay

Administrative Action Are grounds of judicial review so poorly defined that they enable the courts to pick and choose the cases in which they will grant judicial review? Should that be the case? Introduction Substantive Grounds of Review: Unreasonableness Unreasonableness as a ground of review is difficult to define with any clarity or certainty and as a direst result has often been branded as a problem ridden aspect of administrative law.The concept of Wednesday unreasonableness, formulated in the case of Associated Provincial Picture Houses v. Wednesbury Corporation [1948] and further developed in Council of Civil Service Unions v. Minister for the Civil Service [1985] per Lord Diplock was that courts would intervene to correct an administrative action based on the ground of reasonableness only if it was â€Å"so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. I ndeterminacy as to the definition of Unreasonableness: Poorly defined grounds of review? The concept of unreasonableness as propagated by Lord Greene and adopted by Australian courts is inherently indeterminate. Whether a particular decision is reasonable or not is often nothing more than a question of degree and opinion by the courts. This creates an overt sense of arbitrariness which then calls into question the consistency and subsequently effectiveness of such a ground of review as illustrated by case law.The effectiveness of unreasonableness as a ground of review was blatantly called into question in the case of Chan v Minister for Immigration and Ethnic Affairs where the High Court and the Federal Court differed in opinion as to what constituted unreasonableness which was manifestly unfair. This apparent inability of the courts to reach a consensus on what precisely constitutes the required degree of unreasonableness in order to allow a reversal of the disputed administrative decision calls into question the consistency with which it can be applied by courts.Although subsequent cases (Prasad v Minister for Immigration and Ethnic Affairs/ Luu v Renevier/ Minister for Aboriginal Affairs v Peko-Wallsend) seemed to prefer an expansive interpretation of unreasonableness, in neither of these cases can it be said that the delegate’s decision represented something that was manifestly unfair or overwhelming as required by Lord Greene’s original version. Conversely, it can be argued that the Federal Court simply reviewed the merits of the case and substituted its decision for that of the original one.In these cases although it was difficult to reach the conclusion that the decision was so unreasonable that no reasonable person would have come to them, that is exactly what the courts did. This further prompts arguments that the ground of unreasonableness is so poorly defined that courts can pick and choose the cases in which they grant judicial review . The wider the interpretation of unreasonableness greater the risk that courts are in essence given greater opportunity to conduct a merits based review with the effect being that judicial review becomes less effective as it loses the element of consistency.In light of this realization, this ground has recently come under close scrutiny by both the judiciary and the legislature. Where unreasonableness does exist as a ground of review, both the High Court and the Federal Court have held unequivocally that it must be strictly construed and that the courts must abstain from using unreasonableness as a guise to hear an appeal and so engage in merits review of a case.In the cases of Minister of immigration and Ethnic Affairs v Eshetu and Minister for Immigration and Multicultural Affairs v Betkhoshabeh, the Court established strict constraints for unreasonableness, insisting that it is only to be used in the most extreme of cases and that the review should only extend to the legality of the decision. These cases clearly mark a turnaround from the earlier approach in Prasad. In essence his ground of review has been narrowed so that it is to be used only where there is unreasonableness in the very strict sense of the word such that courts can only intervene where only one possible conclusion could have been reached by the decision maker but was not so reached. Therefore precisely defining this ground of review is impossible due to conflicting needs to reign in unreasonableness as a ground of review as opposed to limiting its scope excessively.Proponents of the restrictive approach advocated in Eshetu would argue that a wider interpretation and application of unreasonableness may eventuate in judicial review extending to the merits of a case and possibly usurping the administrative process. However to restrict unreasonableness as a ground of review to that extent runs the risk of marginalizing this ground to the effect of making it redundant. This then gives birth to the possibility that occasions where judicial review was warranted due to the oppressive nature of administrative decisions would go unchecked.There must be a ground of review that can capture decisions such as that in Chan that would otherwise escape scrutiny. Moreover the arguments for and against a restrictive approach to interpreting unreasonableness do not of themselves remove other elements of unreasonableness as a ground of review that are poorly defined. The requirements for something overwhelming or for the evidence to support only one possible conclusion are no more determinate than those of the concept of reasonableness itself.There still exists the need for courts to engage in an evaluative, value laden inquiry as to the reasonableness (or the extent thereof) of a decision and this necessarily involves delving into the merits of a decision rather than its legality. The test of whether a decision is reasonable then hinges upon whether the evidence has been considered wit h propriety and reasonably and it is precisely this which makes the test one of poor definition.In determining whether the available evidence was reasonably interpreted, even considering the more recent restrictive approach propagated by courts, the courts are essentially disagreeing with the decision under review on an indeterminate ground. The danger of illegitimate judicial incursion into the merits of the decision remains present despite its strict construction. Violating the Distinction between merits and judicial review: Poorly defined grounds of review?Although courts can justify judicial review on the basis of Wednesbury unreasonableness, this justification is limited in that the courts cannot intervene simply because they do not agree with the administrative decision or view the facts differently. The distinction between judicial and merits review requires that courts only concern themselves with the question of whether the decision maker had acted within the confines of hi s power subject to the issues of relevancy, proprietary of purpose and unreasonableness.In no way must they concern themselves with the appropriateness of nor the policy considerations behind the decision in a bid to influence or criticize the policy. To do so would amount to a merits review and this would be contrary to the rule that the final authority on the merits of a decision should be the body vested with the discretionary power to do so by Parliament.The theory behind this is that although Courts have the constitutional authority to review decisions of the other arms of government, there is an ever present danger that they might extrapolate this duty excessively and effectively exercise the power vested by Parliament in the primary decision maker, hence substituting their decision for that of the intended decision maker. This would amount to a radical breach of the doctrine of Separation of Powers due to the courts’ exercise of a â€Å"surrogate political processâ₠¬  in direct and conflictual contravention of the notion of Parliamentary sovereignty.The aggregate effect would be a decay of our established system of parliamentary democracy as the courts are neither democratically elected nor politically accountable. The credibility and legitimacy of both the judiciary (and judicial review) and the Constitutional guarantee against excesses by any arm of the Government would be impaired should such a development occur. However the problems surface when there is attempt to apply the theory to practice. Judicial review, despite the grounds on which it is justified, ecessarily involves a process that is evaluative, with emphasis on examining the merits of a decision. When this is compounded by the fact that a conferral of discretionary powers are done so in language that often lacks clarity and is open-ended, it is not too remote to state that courts, in their attempt to evaluate the reasonableness of a decision, will have to embark upon the path o f a value-laden judgment about whether there was a breach of the confines of the discretionary power.This inherent problem within grounds of review is particularly exacerbated in the case of Wednesbury unreasonableness because, although the enacting statue would include the requirement of reasonableness, it will inconveniently leave out the definition of reasonableness, hence creating more room for an evaluative process by the courts. This then amounts to a process of pitting a contested decision against an ideal standard of reasonableness, a standard which has to be construed by the courts.It is then no surprise that the result is often an opaque and loose standard which tends to veer towards the substantive elements of a decision rather than the procedural elements. The fundamental problem of Wednesbury unreasonableness as a ground of judicial review is that the trigger for raising this ground is the disputed quality of the administrative decision. Hence what this amounts to is an intervention by the courts in lieu of the merits of the decision, hence blurring the distinction between legality and merit.When courts attempt to evaluate the legality of administrative action on the murky grounds of unreasonableness, they risk justifying a merits review as judicial review and hence risk an intervention based on their construction of unreasonableness and not based on the legality of the decision in question. Procedural Grounds of review: Bias Bias is a failure to have an open mind on the issues. Actual bias, a closed mind, may lead to other reviewable errors but exists as a separate ground of review.Bias as a ground of review also looks at the perceptions and a decision may be set aside for a perception of bias, whether there was any or not. The test is whether a fair minded lay observer would perceive a possibility of bias. This portion of the essay deals with judges continuing to act in a decision making process when they have an interest in the outcome of the c ase. A judge with a financial interest in a decision is not automatically barred from hearing the case and is only barred if the interest was such as to create a perception of bias [Ebner v Official Trustee in Bankruptcy (2000)]The distinction between actual bias and an apprehension of bias is that for the latter there needs to be no issue of whether the judicial officer might or did in fact bring an impartial mind to the resolution of that case. All that is required is that he might or might have brought an impartial mind to the resolution of the case. The High re-defined the apprehension of bias principle in Ebner v Official Trustee in Bankruptcy (2000) such that the governing principle now is that a judge is disqualified if a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to resolving the case at hand.The principle may also need to be modified in the case of some administrative decision makers, to recognize and accommodate the different legal framework within which administrative decisions are made. Indeed, in Minister for Immigration and Multicultural Affairs v Jia, the High Court made it clear that the application of the Ebner principles will depend on the circumstances of the case at hand. Judicial officers, by virtue of their public duty do not lose their rights as citizens to engage in a private life and participate in all that a private life necessarily entails.Therefore to assert that there will be conflicts of interest between the public duty and private life of judicial officers seems to be an otiose argument. Any argument that this conflict of interest could result in bias, hence forming a ground for review must then be contemplated with skepticism. Interest The prominence of financial diversity, prevalent interest in shareholding, necessity of investing in superannuation and its related equity funds all result in a significant number of judicial officers, like their counterparts in other profe ssions to have an interest in publicly listed companies.These publicly listed companies are not only the dominant incumbents of their industries but also, as a result of their expansive service production, likely to be involved in litigation periodically. Therefore there is potential scope for litigants to argue that there should be judicial review of a decision made on the basis of an apprehension of bias because of the pecuniary interest of the judge in the case. However, the resolution of most cases involving large companies is unlikely to be significant in affecting the value of a shareholding.Hence shareholdings in large companies will not be disqualifying factors in most proceedings. The proportion of the shares held to the value of the company as an aggregate is likely to be insignificant such as to warrant an intervention on this account. Association There is no clear touchstone that can provide an easy method of identifying what might be a disqualifying association and this could provoke arguments that this ground of review is poorly defined and arbitrary. Obviously a judicial officer cannot preside in a case in which he or she is a party; or in which a close relative is party.On the other hand, the judicial and planning appeal systems would be unworkable if a member was disqualified simply because they knew a party, let alone a representative of a party. The High Court has stated that a reasonable apprehension of bias may exist where the presiding judge has a substantial personal relationship with a party to, or a person involved in, proceedings or a substantial personal relationship with a member of the family of that party or person. However what constitutes a substantial personal relationship may, in practice, be elusive.Much depends on the nature, duration and closeness of the relationship. The High Court decision in Bienstein v Bienstein, which established the general principle that a judge is not disqualified from hearing a matter simply becaus e, when a barrister, he or she has appeared for a party in the past. The recent decision of the House of Lords in Gillies v Secretary of State for Work and Pensions is illustrative that, in the case of an expert tribunal or court, a relationship with the agency whose decision was under review might not be a disqualifying factor.The House of Lords considered that a fair minded observer, who had considered the facts properly, would appreciate that professional detachment and the ability to exercise an independent judgment lay at the heart of such decisions. No-one is immune from a complaint of apprehended bias. Judges cannot be expected to be value-free. Conduct Sometimes the conduct of a judicial officer may be such that a reasonable person may apprehend that the matter might not be decided impartially.But this does not mean that a judicial officer cannot have an opinion about the general reliability of a witness who regularly appears before a court or tribunal; provided that the off icer is open to persuasion and does not make comment indicating prejudgment. It must be stressed that the expression of tentative views, designed to elicit relevant submissions, does not constitute bias nor create a reasonable apprehension of bias. Indeed, this practice actually enhances procedural fairness by alerting the parties to the thoughts of the tribunal and providing them with an opportunity to persuade the tribunal to adopt a different course.Demands to disclose interests or associations When should a judicial officer respond to questions about their interests or associations? There are different schools of thought as to the appropriate practice to adopt when a judicial officer is asked about his or her interests or associations. My view is that, within reason, it is better to answer specific questions in relation to factual matters in order to put minds at rest; or, if minds are not put to rest, to require the parties to confront the potentially disqualifying interest or association and identify the logical connection this may have with a partial adjudication.However a judicial officer should not feel compelled to identify and disclose all possible interests and associations, direct and indirect, whether or not relevant to the case at hand. And there is certainly no obligation to answer questions about opinions, values or attitudes. Effect of non-disclosure of non-disqualifying interest What happens if a judicial officer does not disclose an interest or association which might have been disclosed as a matter of prudence (on the asis that it was potentially disqualifying), but, when revealed, was not ultimately found to be a disqualifying interest or association? In Ebner, the majority of the High Court thought it necessary to distinguish between considerations of prudence and requirements of law. The court considered that, as a matter of prudence and professional practice, judicial officers should disclose interests and associations if there is a se rious possibility that they are potentially disqualifying.But it thought it was neither useful nor necessary to describe this practice in terms of rights or duties. Thus if a judicial officer does not disclose a non-disqualifying interest or association, his or her silence cannot reasonably support an inference of want of impartiality. Conclusion The High Court has emphasized that judicial officers should not be too ready to disqualify themselves when confronted with an insubstantial objection, lest that this will lead to forum shopping.But the same does not go to disclosure of potentially disqualifying interests or associations. Quite apart from any moral responsibility, recent decisions have shown the practical virtues of disclosure in circumstances of any doubt. But in determining any objection a court or tribunal should apply a method that requires there to be some logical connection between the alleged disqualifying matter and an inability to impartially determine the proceedin g.

Family Business Case 5 Vega food Company Essay

Family Business Case 5 The Vega Food company owner Francisco Valle Sr had just recently died and now the rest of the family is having problems with the money, shareholders and what exactly are the siblings responsibilities in the company. Francisco Jr has been working there the longest and has the most experience working along side his dad in the company. His four sisters are now wanting more percentage of the shares in the company. The main problem is with his young sisters Mari who wants more responsibility in the family business. Francisco received a big CEO salary and bonus that the sisters didn’t receive nearly as much as he did. They thought this was unfair. This problem seem to hurt the company in sales. After calling a family meeting, a consultant got everything straightened out for what each member of the family had to do and what the shareholders wanted out of the company and what percentage of shares they all had. This problem seem to hurt the company in sales. Francisco seems to be the right person to take most of the responsibilities because was worked there the longest and knows what to do. Read more:  Family Run Business Wyncraft Mari wanted out of the company for feeling that she wasn’t treated the same way as the rest of the siblings so Francisco bought her shares out. Everyone always thinks that they all deserve the same percentage and same amount of salary at the work place but that just doesn’t happen in real life. If Mari wanted to stay in the company I think they could have given each other a little bit more percentage in the shares but still having Francisco have the highest percentage. It also never really stated what she did for the company and how she could help the company. She just thought that she deserved more shares. Personally I don’t think that is fair just because your family doesn’t mean you’re entitled to have shares in the company. But in the end I think Mari just had enough and wanted to give her shares up and move on in her life. After reading what the family did to over come this problem I thought it  seem to be the best for both the company and Mari. Now their sales have been going up and the company is growing and doing good with new employees. If they didn’t resolve this problem I think the company would have been destroyed and more feelings would have been hurt in the long run. Also being a good CEO, Francisco saw a problem and decided to do something about it.

Friendship: Meaning of Life and Friends Essay

What is a friend? According to Aristotle, a friend is a single sole dwelling in two bodies. People understand the concept of friendship differently, but there is one common ground for it. It is always built on a mutual sympathy. Friendship plays an important role in our lives, to a large extent. Friends can help you find the meaning of life by helping you overcome challenges. They are people in your life that care for you and they simple add joy and meaning to your life. In some cases it is short and finds its end quickly, while in other cases it may last for many years and grow stronger every year. True friendship is built on trust and mutual support. Your real friend will always find time to talk and try to find solutions to the hard problems you face every day. They are always there to help you and expect the same from you. Friends are psychologically comfortable with each other, and sometimes are emotionally closer than with their relatives. Friends help you overcome challenges you may face at times in your life. A special thing about friendship is that friends have the ability to do different things like simply talking something through and giving advice or physically helping you Sometimes friends find more comfort in each other rather than family because they might have the idea that there family might judge them, and there friend will tell it right. In difficult times, friends make you see things from a different point of view, allowing you to take time to reflect and examine the situation. Doing this it allows you to see another perspective of the situation and find another way to overcome your challenge. Not only do friends help you through situations, but they go about this through love. Friends are people in your life that love and care about you. They will not only help you through something but they are the ones that will always be there for you in those times of need. They care about you and how you feel and that is what makes them a true friend. A friend is someone who believes in you when you have yet to believe in yourself. They help you to find the meaning of life because they let you know that there is someone out there that cares for you and that you are valuable to someone else in this world. Friends are not only there to help you, but they also add fun, happiness and joy to life. They add fun, happiness and joy as you can relate to each other and share the same values about things. Through sharing the same values you are able to laugh and joke about things that you will both find funny as you share the same ideas. They can make you forget about any problems you have by simply having some fun. Friends can be your whole life as you revolve many things around them. You know you can trust them as much as they can trust you. Friends help us to not take everything in life too seriously and have a bit of fun by simply being in each other’s company. Friendship has great value in the meaning of life. It is one of the richest treasures of life. Friends help you overcome challenges and difficult times in your life, through talking and physically helping you. They are someone who knows you well and cares about you, so that everything they do for you and through love. When the crowd dies down after a crisis, your friends are the ones who are still active. Friends will sit with you in the hospital, be with you while you grieve, be available at a moment’s notice of crisis, come out to help in the middle of the night, stand up for you, lend a hand when there is work to be done, be loyal to you, have fun with you, make you laugh when you are sad etc etc†¦ and the list goes on. The most important thing about friendship is that it adds meaning and value to our lives.

Week 6 Essay Example | Topics and Well Written Essays - 500 words - 2

Week 6 - Essay Example The first evident characteristic of Baroque in this sculpture is drama and emotion, which makes the audience share the feelings of Bernini. Drama and emotion are brought out by the space around the statue. Another Baroque characteristic in this sculpture is twisting and uncontrolled torsos, which create a tortion that, enhance a dynamic representation of the figure. Finally, the sculpture depicts use of tenebrism as seen by the sharp contrast between the sculpture and its background. The background is completely dark while the sculpture itself is light. Michelangelo’s David is a High Renaissance work, which takes the form of a pyramidal composition revealing stability of the sculpture. This contrasts with Bernini’s David, which is a Baroque style represented by diagonal lines that show energy, drama, and movement. Hence, while Michelangelo focus on representing the beauty of David, Bernini is concerned with emotion that ignites reaction from the audience. On the other hand, Donatello’s David is an early Renaissance work that depicts the reemergence of nudity. In addition, the sculpture unlike Bernini’s shows no motion and drama. In Donatello’s sculpture, a victorious David is standing as a representation of the Republic of Florence blessed by God. Therefore, there is no emotion as in the sculpture of Bernini, but a mere representation of might and

Stress Topic Research Paper Essay Example | Topics and Well Written Essays - 750 words

Stress Topic Research Paper - Essay Example Other heightened risks of developing diseases of the endocrine system such as Type 2 Diabetes can be increased with moderate weight gain, but being obese quadruples an individual’s chances of becoming diabetic. Certain cancers, such as endometrial and colon cancer are also more prevalent in individuals that are obese as opposed to individuals that are found to be within the healthy range on the BMI scale. A non-medical outcome of obesity is a greater prevalence of diminished self-esteem and negative body image among obese individuals. This psycho-social consequence, while not directly relating to mortality, does indicate that individuals that are obese have less satisfying life socially and emotionally in many instances. It could be said that obesity is an individual problem, not one for society to worry about. The solution is simply for individuals to gains some self-control, to eat less and exercise more. Others would argue and say that obesity is a societal issue. Billions of dollars are spent on treating illnesses each year that are exacerbated by obesity. Millions of hours are lost in productivity to employers because of these illnesses. Add to this the tax money spent caring for low income obese individuals and the many lost opportunities for pleasure obese individuals pass up due to their condition, and you could say that the costs of obesity to individuals as well as society are staggering. Millions of dollars are spent each year by governmental and concerned organizations on health and nutrition education. The belief is that if we can educate individuals about correct nutrition and exercise, the obesity will lessen and we will have fewer illnesses concerned with this disorder. Despite these well intentioned efforts, obesity rates continue to rise, not only in America, but in other industrialized nations as well. Obviously something is missing from the equation that doctors believe causes

Outline.This is only an outline for a research paper that is going to

Outline.This is only an outline for a that is going to be written latter,so the topic is outline - Research Paper Example One major argument on the matter is with relation to scientology. Scientology has grown in contemporary years and has seen many people join the particular movement (Barth, 2007). With the absence of religion, people would grow further believing in the movement. Religion exists in current days and people still carry out heinous crimes on a daily basis. It is only right to state that with absence of religion, these crimes would increase significantly. People would invade other’s privacy stealing and committing murders. (Matlock, 2008) Society would have no rubrics and humans would lack personal rules by which to abide. Without religion, people in society would lack common grounds (Ryan, 2007). Getting together in prayer and worship is one factor that unites people of different backgrounds and social stature. Lack thereof would lead to judgment and condescending among people. Atheists portray this when looking at the manner in which most of them live their lives. People would lack a sense of unity and this would act as a sign for the beginning of societal and humanity’s

A topic from your personal knowledge and experience Essay

A topic from your personal knowledge and experience - Essay Example In other words, how their lives affects others. My philosophy of life involves this premise. In a world that is beautiful, exciting and mysterious yet can be brutally unfair, who I am is determined by how my life, my words and actions affect the world and the people in it. This is all I can really control, the person I choose to be. The person that some one chooses to be depends on an almost infinite number of factors including how and where they were raised, environmental influences, choices regarding philosophical thought and, in part, genetic predispositions. However, since the dawn of the internet, people from every part of the world have realized that they can indeed think very much alike those that have had very different life experiences. This proves, I suppose, that where you start does not indicate where you will end up, philosophically speaking. Some do not look at life and the world in the same way as their parents, friends or ethnic group see it, yet some do. It is for higher minds to ponder the reasons for why a person believes what they do but one thing is certain, the path there is very complex and unique to every individual. The roots of my philosophy towards life begin with the Bible yet I do not consider my self Christian, far from it. As a youth, I found the words of Christ simple, to the point and ultimately a path to inner contentment. A life philosophy, I have found, is an evolving viewpoint based on what we learn as we travel through the roller coaster that is life. The Bible gave me the foundation of what I have built upon since my youth. Other philosophies, whether from religions or various ‘wise men,’ that I have read do not contradict, in fact they support the tenets from the book I began with. All books of philosophical content are written as a guideline to happiness. Isn’t an individual’s