|Posted by ddemarchi44 on December 9, 2013 at 7:40 PM|
ON THE QUESTION OF JURISDICTION
1. We submit that there are (at least) two bases for the Federal Court’s jurisdiction in these matters: (1) the ADJR Act and (2) the Judiciary Act. The Applicant invokes both avenues, in that order of preference.
2. The Defence Honours and Awards Appeals Tribunal (DHAAT) Fact Sheet 05 explains three important matters:
a. The DHAAT is established under the Defence Act 1903 ...
b. There are strict rules governing eligibility for awards ...
c. An applicant is able to seek review by the Federal Court on questions of law, but not on the merits ...
Administrative Decisions Judicial Review Act
3. The ADJR Act provides for judicial review jurisdiction in respect of decisions of an administrative character made under an enactment.
4. The determination of the DHAAT is a “decision”, namely a decision as to eligibility for an honour or award.
5. The determination is of an “administrative character”, being the consideration of relevant facts and their relationship to fixed criteria, namely “strict rules” governing eligibility.
6. The determination is made “under an enactment”, namely the Defence Act 1903, which establishes the DHAAT.
7. As a result, the Federal Court has jurisdiction to review the legality of the DHAAT determination.
Judiciary Act 1903 s 39B(1)
8. The above sub-section of the Judiciary Act provides for review jurisdiction, inter alia, where certiorari is sought against an “officer of the Commonwealth”.
9. Tribunal members occupy an “office”, namely the office of Members by way of appointment, with the provision of salary, to a Tribunal established under a Commonwealth Act.
10. Tribunal members are therefore “officers of the Commonwealth”.
11. Alternatively, the original determination by the Department of Veterans’ Affairs was made by an employee of the Department, being an “officer of the Commonwealth”.
12. As a result, the Federal Court has jurisdiction to review the legality of the DHAAT determination !
Categories: Veteran's Affairs