Violation of the Right to be Heard
A notable principle of natural justice which has been violated in the case is giving stakeholders or parties the opportunity to be heard. Every party involved in an administrative undertaking and is likely to be affected by decisions of the administrative board should be given a chance to respond to the allegations in the matter before a final decision is made. In this case, the ministry was making a decision on the banning of ostrich riding. As major stakeholders in this trade, ostrich riding operators had to be informed prior to making the decision. They deserved to know the state of affairs as perceived by the ministry and the possible actions considered to solve the issue. The ostrich-ride operators should then be given a chance to respond on the issue, either in person or through their representatives –via the specific union concerned with ostrich riding. Failure to give the ostrich operators, including Petrella, a chance to be heard was a violation of the right to be heard and thus a basis for reviewing the administrative decision.
Another principle of natural justice evident in the case is that a party be provided with the particular determination, facts and statutes that have informed the attainment of a particular decision being reached by the administrative body. As it is the case, the delegate’s letter only stated that it had reached the decision to outlaw ostrich riding “Following disturbing news of numerous attacks on children by ostriches elsewhere in Australia.” A mere assertion without proof is not only unconvincing on its own, but also appears to be harsh. The principles of natural justice require that the affected parties be at least provided with figures and records -and in this case- of the alleged numerous attacks on children.
When determining unreasonableness, the question is whether an administrative body has failed to consider or take into account any matter that it ought to take into account prior to reaching the decision. Unreasonableness in this case is evident in two dimensions. First is unreasonableness with regard to exercise of discretionary powers and secondly is unreasonableness on the considerations made prior to reaching the decision.
While Section 5 of the Act accords discretionary powers to the minister with regard to cancellation of Ostrich Ride’s permits, there is a condition that has to be such cancellation has to be necessary or proper in a bid to remove any significant health or safety concern from the public. This means that while using its own discretion to revoke or sustain ostrich riding permits, the body has to weigh on the evidence it has to justify the decision. From the foregoing issue, the delegate minister failed to consider the merits of the case in question. There was no substantive evidence to justify the making of the decision by the delegate minister. It is evident that the delegate failed to take into account relevant considerations that would give a realistic inference on the matter. There is an incorrect finding of facts; decision is made without giving due regard to the factual circumstances of the case at hand.
Failure to Consider Relevant Factors
Additionally, the unreasonableness in the exercise of discretionary powers is evidenced by the delegate’s signature on the notice. Discretion must be exercised by the proper authority only and not by a delegate. The proper authority which possesses the mandate and discretion to cancel an ostrich riding permit is the Minister as outlined in Section 5 of the Act. In the foregoing case, the notice of cancellation came from the delegate of the Minister for Animals as opposed to the minister. The delegate had no authority to act on the issue and making such decisions would be unreasonable.
The decision reached was based on irrelevancies and ignorance of relevant facts. In the case of R v Secretary of State for Social Services, ex parte Wellcome Foundation Ltd, it was stated that it is a reviewable error either to take account of irrelevant considerations or to ignore relevant ones, provided that if the relevant matter has been considered or the irrelevant one is ignored, a different decision or rule might (but not necessarily would) have been made. In this particular case, the delegate stated that the decision to revoke ostrich rides permit had been reached following disturbing news of numerous attacks on children by ostriches elsewhere in Australia. While failing to update the ostrich riders with the relevant authority that informed this assertion was a failure on one side, it was another failure to rely on such authorities to come up with a dire decision like that. The Ostrich Rides Operators of Australia Association newsletter is the best authority on the issue and only documents three ostrich attacks to have ever occurred. Certainly, if this had been used to inform the administrators, then there would be no claims of numerous attacks on children by ostriches and thus no need to revoke the permits.
The decision reached by the delegate was irrational. Irrationality in the confines of judicial review means conduct beyond the range of responses reasonably open to an administrative body. The objective test in determining whether a particular act or decision is irrational is considering whether a public body has done something which a reasonable body with the same function and confronted with the same circumstances could not do.
In this particular case, a rational decision would see the administrative body take action against the ostrich-ride operators involved in the alleged ostrich attacks instead of a blanket cancellation. Consequently, an administrative organ acting rationally would have opted for a less punitive but reasonable measure by imposing tough penalties for any operators involved in such accidents in the future. Such penalties would include revoking the licenses of such operators. Another policy would be requiring operators to maintain certain standards in their working environments that would allow for maximum safety. Ideally, the government should have taken certain steps to regulate ostrich riding more closely other than irrationally banning the riding of ostriches. Furthermore, Section 3 of the Act happens to be vague as it points to no qualifications for being an ostrich-ride operator, thus allowing incompetent personnel and substandard farms to be operated in the nation. By reviewing the legislation to include stringent measures, future accidents that are feared for by the ministry would be restricted.
Unreasonable Exercise of Discretionary Powers
The validity of a decision depends on the proper appreciation and interpretation of facts. An error of fact occurs where there has been an imprudent deviation from facts. Facts that if were considered, would inform the decision differently. As revealed by the Ostrich Rides Operators of Australia Association newsletter, there has been a report of only three attacks. None of these, as revealed by Petrella, was caused by a fault on the part of an ostrich-ride operator. Considering these facts would never lead the ministry to reach such a decision, which would appear unjust in the face of it.
The record brings in a number of new facts that would change the answer to the first question. First of all, the record brings in a new dimension on considerations made prior to reaching the decision to cancel licenses. The minister states that it was degrading to make ostriches carry human riders and that informed their decision to revoke licenses. This dimension would alter the arguments on irrationality and reliance of irrelevant facts.
The ministry stresses that public safety is paramount to the government. In the exercise of their discretion given to them by Section 5 of the Ostrich Rides Act 1988, the question before the ministry was to what extent ostrich riding was affecting the safety of children. The significance of public safety outweighed the quest to keep up with ostrich riding even if it were in a more restricted manner. This would be a reasonable way of arguing it out. The ministry would have utilized their discretionary powers to come out with a rational argument and reason for their decision. Since a decision based on discretion need not be just, but reasonable, it would pass the rationality test. Irrationality would not qualify as one of the basis for seeking judicial review.
As for the reliance on irrelevant consideration to reach the decision, there is a new addition on what informed the ministry to reach its decision. According to the minister, it was degrading to make ostriches carry human riders and contrary to animal rights. The additional fact does not count as an error of fact. It is an irrebutable presumption of fact and would make a relevant consideration to reaching the decision.
The record also reveals that the delegate was acting in the capacity of the minister. That they were in full agreement and the decision to revoke ostrich rides permit was –in extension- the minister’s. This revelation discredits the application of the principle that delegates are not given the discretion to make decisions in this case. The delegate’s decision was in unison with the minister’s and it did not matter that the delegate’s signature was appended on the notice of cancellation.
Irrationality of the Decision
However, the sentiments by the minister would further prove the argument on the principles of natural justice. In the notice given to ostrich-riders operators, there was no mention of the issue that informed the decision reached by the ministry. The minister’s letter ought to have been backed with records of how ostrich riding had been the course of unsafety in the country. Additionally, the assertion that it was contrary to animal rights for humans to ride on ostriches ought to have been explicitly included in the notice. A detailed explanation for the decision would give reason for actions that would, prima facie, appear unreasonable.
The letter would also address the issue of discretionary powers. It would portray how the ministry utilized its discretion, provided in section 5, to reach the decision they did. That “the Government is taking steps to regulate ostrich riding more closely, so as to reduce the risks posed to the community by this dangerous pastime” is a reasonable use of discretionary powers. Therefore, the issue would not be a subject for judicial review on the basis that the ministry acted ultra vires through the unreasonable use of discretionary powers.
The new letter would also cover for the principle of natural justice that accords a party the right to be heard. The rational decision through the use of discretion accorded to the ministry via section 5 of the Ostrich Rides Act would be cancelling all licenses belonging to ostrich ride operators. However, the ministry would not be imposing this decision on the stakeholders involved, but rather according them a chance to come and present their case. Petrella would be given a chance to be heard prior to the enactment of the notice.
As the burden of proof shifts to Petrella, she is given an opportunity to be heard. She can therefore lay her defense on why her personal license should not be revoked by guaranteeing that the measures she has put in place would ensure ostriches do not attack humans. Petrella’s birds are well trained and she has offered her services since 1996. These may just be the underlying facts to prove that she does not deserve the revocation of her license. This means that the decision reached at the end of the 90 day notice would not have been a one-sided agreement but rather a deliberation by both parties. There will be no petition for judicial review on the grounds of violation of the right to be heard as dictated by the principles of natural justice.
References
Douglas, Roger. “Administrative Law.” (2004).
Lane, William B., and Simon Young. Administrative law in Australia. Lawbook Co, 2007.
Hawkins, Keith. “The uses of discretion.” (1995).
The Administrative Decisions (Judicial Review) Act 1977
The Judicature Act. 1873.
R v Secretary of State for Social Services, ex parte Wellcome Foundation Ltd [1987] 1 WLR 1166
Bradley, Anthony Wilfred, and Keith D. Ewing. Constitutional and administrative law. Vol. 1. Pearson Education, 2007.
Mark Aronson, ‘Resurgence of Jurisdictional Fact’ (March 2001) 12(21) Public Law Review 17, 27.
Administrative Appeals Tribunal. Judicial Review. Accessed 16 August 2018 from https://www.aat.gov.au/about-the-aat/engagement/speeches-and-papers/the-honourable-justice-garry-downes-am-former-pre/judicial-review
Part IV – The Grounds of Review and the Scope of Judicial Review. Accessed 16 August 2018 from https://www.arc.ag.gov.au/Documents/jrpart4.htm
Yohannes Aberham and Michael Desta. Grounds of Judicial Review. (2012). Accessed 16 August 2018 from https://www.abyssinialaw.com/about-us/item/318-grounds-of-judicial-review
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