Question Five – Jurisdiction and Standing
Barbara Frost purchased 150 hectares of land in Upper Crompton in northern New South Wales three years ago. When she purchased the land approximately 100 hectares was natural bush and the remainder, which had been used for grazing for many years, was cleared, with pockets of infestation of lantana and blackberries. Barbara’s dream when she purchased the land was to re-vegetate the cleared land to take it back to its natural state and when bush was re-established to run a small guesthouse. She has worked hard since she purchased the land clearing the lantana and blackberries by hand since she is opposed to the use of herbicides. Barbara is one of a small number of people who have settled in Upper Crompton recently who wish to retain their land in as close to its natural state as possible and who do not intend to use their land for stock grazing.
The Pastures Protection Act 1934 (Cth) set up Pastures Protection Boards in rural districts across Australia to take control of travelling stock reserves, camping reserves and public watering places. The Act gives the Boards power to ensure that landholders comply with their duty to destroy noxious pests. Each Board has six directors who are elected annually by enrolled voters, the qualification for voting being ownership or occupation of rateable land under the Act. Each Board levies an annual rate on landholders within the relevant district, based on the carrying capacity of each holding, without regard to the actual use being made of the land.
The Upper Crompton Pastures Protection Board (‘the Board’) has levied Barbara the minimum rate of $50.40 per quarter, since she purchased the land. This rate was issued despite Barbara’s protests that she has no stock on her land, has no intention of acquiring any, and therefore should not have to pay for the services provided by the Board, which she does not use.
In July 2016, Barbara decided to make representations to the Minister for an exemption from the annual levy under s 40A of the Act, which provides as follows:
s 40A (1) A board may, with the approval of the Minister, and shall, at the direction of the Minister, but not otherwise:
(a) waive payment of any rate or part of a rate; or
(b) refund to an occupier or owner any rate or part of any rate, or both.
(2) The Minister may, at the Minister’s discretion, direct a board:
(a) to waive payment of any rate or part of any rate; or
(b) to refund to an occupier or owner any rate or part of any rate, or both.
(3) A board shall write off any amount of rates waives or refunded under subsection (1) or (2).
The Minister responded by directing the Board to report on Barbara’s representations. The Board recommended against granting the exemption. The Minister accepted that recommendation and in early September 2016 informed Barbara accordingly.
Barbara is upset about the Minister’s response, and seeks your advice.
a) Advise Barbara on how she would establish jurisdiction in an appropriate court to judicially review this decision. Is the matter justiciable?
b) How would she argue she had standing?
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