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The Democratic People’s Republic of Syldavia
PART A: Judicial Review Problem Questions (40 Marks).Notes: 1. The following factual scenario pertains to BOTH Question 1 and Question 2. 2. Other than the Administrative Decisions (Judicial Review) Act 1977(Cth) all legislation referred to in the following factual scenario is fictitious. Nothing is to be gained by searching for this legislation or for references to it elsewhere.3. For the purpose of answering this question you may assume that the legislation cited is within a constitutional head of power under s 51 of the Constitution of the Commonwealth of Australia.The Democratic People’s Republic of Syldavia (DPRS) is a one-party state in Europe which came into being following a 1989 revolution overthrowing the constitutional monarchy and parliamentary system of government of the previous Kingdom of Syldavia. Since 1989 the DPRS has been ruled by the SyldavianWorkers’ Revolutionary Vanguard Party (SWDVP). During the 1989 revolution members of the Syldavian royal family were captured by revolutionary forces before they were able to flee for their safety. While some members of the royal family lost their lives at the hand of revolutionaries, the lives of the King and the Queen were spared on the proviso that the king “abdicate forthwith and renounce all titles of royalty or nobility and any and all future claims to the throne or government of Syldavia” and that he and the queen live out their days under house arrest in “proletarian accommodation” in the former imperial capital of Klow (and now the capital of the DPRS). The lives of all other surviving members of the royal family, including that of the crown prince, (i.e. the king’s eldest son and heir apparent or next in line to the throne) were spared on the proviso not only that they each make a similar renunciation of “all titles of royalty or nobility any and all future claims to the throne or government of Syldavia” but that they also renounce their Syldaviannationality and that they spend the rest of their days in exile in a foreign country never to set foot again on Syldavian territory.In what was hailed as a diplomatic coup at the time, the Crown Prince of Syldaviawas granted political asylum by Australia in 1989. The Australian Government did not take a position on the lawfulness or validity of the Crown Prince’s renunciation of any and all future claims to the throne or government of Syldavia although for his own safety and the safety of his mother and father still under house arrest in the DPRS it advised him to avoid all travel to the DPRS. The former Crown Prince eventually settled in Newcastle, New South Wales where for some years now he has undertaken a number of business enterprises including owning and operating an import-export business in Newcastle and vineyards in the Hunter Valley.After something of a thaw in relations between Australia and the DPRS, and several years of painstaking trade negotiations Australia recently entered into a Free Trade Agreement (FTA) with the DPRS. The Free Trade Agreement covers trade in a wide range of goods and services. It provides in part as follows:
2020 Supplementary ExamUniversity of NewcastleLAWS6007 Administrative LawPage 2 of 8 Australia-DPRS Free Trade Agreement 20201. This agreement shall be a binding treaty in public international law between the Commonwealth of Australia of the one part and the Democratic People’s Republic of Syldavia of the other part.2. This agreement shall take effect from 1 January 2021.3. The state parties agree that from the commencement of this agreement trade between the two countries in all goods and services listed in Schedule A to this agreement shall be absolutely free. In particular, the goods and services specified in Schedule A shall be free from all import tariffs and from any public subsidy or other publicly funded export assistance scheme.4. (a) Nothing in paragraph 3 shall be taken to detract from the right of a state party to require an exporter to hold a valid export licence.(b) In deciding whether to grant an export licence public officials of the exporting country shall have a wide discretion of relevant factors to take into account including but not limited to respect for cultural differences and other cultural sensitivities.Wine is listed in Schedule A to the Free Trade Agreement. Prior to the Free Trade Agreement the DPRS imposed a 5,000% (five thousand per cent) import tariff on all foreign (including Australian) wine except for French wine which was subject to an import tariff of 50% (fifty per cent). Consequently, the wine market in the DPRSto date has been completely dominated by French wine. As a result of the Free Trade Agreement, however, from 1 January 2021 Australian wine for sale in the DPRS will now no longer be subject to any import tariffs in the DPRS and be able to compete on price with French wine.In view of the Free Trade Agreement a number of Australian wine producers and exporters are making preparations to export wine to the DPRS from 1 January 2021. The Australian Wine Industry Association (AWIA) has conducted market research and in response to the previous dominance of French wines in the DPRSmarket has recommended that its members consider selling some Australian wines with French names to a public that is accustomed to wine only having French names.One such person seeking to export wine to the DPRS is the deposed Crown Prince of the DPRS, (now a resident of Newcastle, New South Wales). He has developed three Hunter Valley wines exclusively for export to the DPRS and wishes to sell them under the following French names:•Châteauneuf-du-Roi(which translates literally into English as: “The King’s New Castle” or “The King’s Newcastle”)•En avant victorieux (in English: “Advance Victoriously”)•Laisse partir mes parents (in English: “Let My Parents Go”)
2020 Supplementary ExamUniversity of NewcastleLAWS6007 Administrative LawPage 3 of 8 The Australian Wine Industry (Export) Act 1981(Cth) provides in part as follows:7. Wine Export Licence(a) The Minister may grant a wine export licence.(b) In considering whether to grant or a refuse a wine export licence the Minister shall take into account the following:(i) Whether the applicant holds or has previously held a wine export licence;(ii) The applicant’s record (if any) in complying with any previous wine export licence conditions(c) In considering whether to grant or refuse a wine export licence the Minister may take into account any other matter which the Minister on reasonable grounds considers relevant.(d) When issuing a wine export licence the Minister may impose such conditions as the Minister thinks fit.8. Exporting Wine Without a LicenceIt shall be an offence to export wine without a licence. PENALTY: A fine of 1,000 penalty units.9. Finality of DecisionsA decision or a purported decision of the Minister made under section 7:(a) is final and conclusive;(b) shall not be challenged, appealed against, reviewed, quashed or called in question in any court or tribunal; and(c) is not subject to prohibition, mandamus or injunction in any court on any account.Decisions under s 7 of the Australian Wine Industry (Export) Act 1981 (Cth) are listed in Schedule 1 of the Administrative Decisions (Judicial Review) Act 1977(Cth).The Crown Prince has held a variety of wine export licences since 1994 although not in respect of the DPRS (since it was previously uneconomic for any Australian producer to export to the DPRS). He recently applied for separate wine export licences in respect of each of the three wines mentioned above. This licence application is the only contact he has ever had with the present Commonwealth Minister for Agriculture, the Hon Trevor Rayne MP. In his licence application in a section on the form headed “Any other material you wish to disclose which may be relevant to your application” the Crown Prince specifically referred to his “impeccable record” in complying with all previous licence conditions, even the “ridiculous condition imposed in 1998 by the then Minister requiring dual labelling on bottles destined for the country of Syldavia — that is a label of the winemaker’s own choosing to promote the wine and a second label containing information and graphics approved by Tourism Australia for the purpose of promoting Australia as a tourist destination in the lead-up to the Sydney Olympic Games in 2000.”The Crown Prince’s licence applications for the export to the DPRS of Châteauneuf-du-Roi (“The King’s New Castle”) and En avant victorieux (“Advance
2020 Supplementary ExamUniversity of NewcastleLAWS6007 Administrative LawPage 4 of 8 Victoriously”) were approved while his application in respect of Laisse partir mes parents (“Let My Parents Go”) was refused. The Commonwealth Minister for Agriculture wrote to the Crown Prince in the following terms:Your Royal Highness, — or do you mind if I call you Michael?I write to you in respect of your applications for wine export licences in respect of three wines which you wish to export to the DPRS from 1 January 2021 when the recently concluded Free Trade Agreement takes effect.I have carefully considered each of your applications. The following should not be taken as an exhaustive statement of reasons for my decision but I do note the following:1) Your application for Châteauneuf-du-Roi is approved. I particularly like your use of artwork on the label. If you don’t mind my saying, the portrait of your father in front of the old imperial palace is rather good; I think my wife did an excellent job in painting your father. In addition to this, I think this is a clever choice of name given the popularity around the world and in particular in the DPRS of the French wine Châteauneuf-du-Pape(which as I’m sure you’re aware comes from the name of the region in the south of France in which it is produced and in English translates as “The Pope’s New Castle”) and the fact that you are based in Newcastle and you have a personal connection with the king’s former castle in the DPRS. I can’t imagine the French producers of Châteauneuf-du-Papewill be too pleased but they’ll just have to live with it. Why should they have a monopoly on the use of the French language when it comes to wine? It’s absurd that you can no longer call Australian sparkling wine “champagne” because it’s a geographical region in France and the EU has decided to grant legal protection to the names of famous wine regions. I don’t agree with previous Australian governments’ craven capitulation to the EU juggernaut on wine names. So well done on coming up with this name and giving the old middle-fingered salute to the Frogs! You have my deepest respect and admiration.2) Your application for En avant victorieuxis approved. I have no idea why you would choose such a strange name for a wine but, as they say, “whatever floats your boat”.3) Regrettably, I can’t approve your application for Laisse partir mes parents. I see where you’re coming from on this. You’ve got the biblical motif going on there with the God of the Hebrews saying to Pharaoh “Let my people go” and you saying — to the DPRS pharaohs as it were — “let my parents go!”. But the Prime Minister has made it plain to me in no uncertain terms that we can’t approve this. There would be the diplomatic equivalent of a nuclear meltdown if we were to approve this one. Sorry. Decisions for export licences under the Free Trade
2020 Supplementary ExamUniversity of NewcastleLAWS6007 Administrative LawPage 5 of 8 Agreement with the DPRS are expressly subject to cultural sensitivities. For what it’s worth you have my deepest sympathy, but I can’t approve this. I trust you understand.Yours Sincerely,Hon Trevor Rayne MPCommonwealth Minister for AgricultureFrench winemakers from the Châteauneuf-du-Pape region are outraged by the Minister’s decision to approve Châteauneuf-du-Roi(“The King’s New Castle”) for export as is the Government of the DPRS in respect of the decision to approve for export En avant victorieux (“Advance Victoriously”) which they claim is a French translation of part of a slogan from the 1989 revolution which to this day in its full form is the official motto of the Syldavian Workers’ Revolutionary Vanguard Party (SWDVP). (The motto in full is “Advance victoriously following the Party’s revolutionary line”.) The Government of the DPRS sees the use of the phrase “advance victoriously” by the Crown Prince in a wine name as a mockery of the revolution and a slight against the DPRS Government’s honour. In addition to the Crown Prince being upset with the decision to refuse an export licence forLaisse partir mes parents (“Let My Parents Go”), the DPRS-based importer of this wine is also upset with the decision to refuse an export licence as it will in her view adversely affect her business and she thinks the Australian Government should not be “kowtowing” to the Government of the DPRS. A delegation of French winemakers approached the French president to see what could be done about the Australian Government’s decision to “approve” Châteauneuf-du-Roi(“The King’s New Castle”). The French President ordered an investigation by the French intelligence service into the Australian Minister for Agriculture, Trevor Rayne (the minister responsible for administering the Australian Wine Industry (Export) Act 1981(Cth)). The report alleged that during his “gap year” between high school and university the Minister had unsuccessfully applied for a scholarship to spend time working at a French winery in the Châteauneuf-du-Pape region of France. The report also quoted a number of excerpts from Hansard in which the Minister had made remarks in Parliament critical of France and the French. Finally, it also made reference to the 2020 Lord Nelson Orationwhich the Minister delivered. The Lord Nelson Society of which the report notes the Minister is not a member and which organises the annual Lord Nelson Oration styles itself as “a voluntary historical and patriotic society for the discussion of events concerning the life and times of Horatio Nelson, 1st Viscount Nelson (1758-1805)”. The title of the 2020 Lord Nelson Oration was “The History Book on the Shelf is Always Repeating Itself: The Continuing Significance of the Defeat of Napoleonic France by the Forces of the British Empire under Lord Nelson”. Additionally, the report annexed a copy of a brochure for the 2020 Lord Nelson Oration which stated the following “The Lord Nelson Oration is open to members of the public. This year attendees will enjoy dinner and a speech by the Federal Minister for Agriculture. The cost is $130 per head. At this year’s oration the society will be taking a collection to go towards the New World Wine Scholarships which allows young
2020 Supplementary ExamUniversity of NewcastleLAWS6007 Administrative LawPage 6 of 8 French people to study winemaking in Australia or another English-speaking country of their choice.”QUESTION 1 (15 Marks)N.B. For the purposes of answering each part of Question 1 you may disregard the effect (if any) of s 9 of the Australian Wine Industry (Export) Act 1981(Cth).a) Assuming one or more grounds of review could be established, would French winemakers from the Châteauneuf-du-Pape region have standing to challenge the Minister’s decision to grant the former Crown Prince a wine export licence in respect of Châteauneuf-du-Roi(“The King’s New Castle”)? (5 Marks)b) Assuming one or more grounds of review could be established, would the Government of the DPRS have standing to challenge the Minister’s decision to grant the former Crown Prince a wine export licence in respect of En avant victorieux (“Advance Victoriously”)? (5 Marks)c) Assuming one or more grounds of review could be established would the DPRS-based importer have standing to challenge the Minister’s refusal to grant the former Crown Prince a wine export licence in respect of Laisse partir mes parents (“Let My Parents Go”)? (5 Marks)QUESTION 2 (25 Marks)PLEASE ANSWER THIS QUESTION IN A SEPARATE ANSWER BOOKLETN.B. For the purposes of answering parts (a), (b), (c) and (d) of Question 2 you may disregard the effect (if any) of s 9 of the Australian Wine Industry (Export) Act 1981(Cth). However, in answering part (e) you will need to consider the effect (if any) of s 9. a) Assuming for present purposes that standing is not in issue, would a French winemaker from the Châteauneuf-du-Pape region be able to establish a denial of procedural fairness (or natural justice) concerning the Minister’s decision to grant the Crown Prince an export licence for Châteauneuf-du-Roi(“The King’s New Castle”)? (In answering The Democratic People’s Republic of Syldavia this part you may disregard the effect, if any, of s 9 of the Australian Wine Industry (Export) Act 1981(Cth).)(8 Marks)b) Again, assuming that standing is not in issue, would a French winemaker from the Châteauneuf-du-Pape region be able to establish any other grounds of review in respect of the same decision? (In answering this part you may disregard the effect, if any, of s 9 The Democratic People’s Republic of Syldavia of the Australian Wine Industry (Export) Act 1981 (Cth).) (4 Marks)
2020 Supplementary ExamUniversity of NewcastleLAWS6007 Administrative LawPage 7 of 8 c) Assuming that standing is not in issue, would the DPRS Government be able to establish any grounds of review in respect of the Minister’s decision to grant the Crown Prince an export licence for En avant victorieux (“Advance Victoriously”)? (In answering this part you may disregard the effect, if any, of s 9 of the Australian Wine Industry (Export) Act 1981(Cth).) The Democratic People’s Republic of Syldavia (4 Marks)d) Assuming standing, would the Crown Prince be able to establish any grounds of review in respect of the Minister’s decision to refuse him an export licence for Laisse partir mes parents (“Let My Parents Go”)? (In answering this part you may disregard the effect, if any, of s 9 of the The Democratic People’s Republic of Syldavia Australian Wine Industry (Export) Act 1981(Cth).) (5 Marks)e) What effect, if any, would s 9 of the Australian Wine Industry (Export) Act 1981(Cth) have on the Crown Prince’s ability to seek judicial review of the Minister’s decision to refuse him an export licence for Laisse partir mes parents (“Let My Parents Go”)?(4 Marks)PART B: Essay Question (10 Marks)QUESTION 3 (10 MARKS). PLEASE START YOUR ANSWER TO THIS QUESTION ON A DIFFERENT PAGEAre administrative law mechanisms other than judicial review necessary? To what extent are they successful? Answer with reference to at least TWO of the following: merits review, the ombudsman, freedom of information (FOI), and information privacy protection.
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