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257267 1000 words Subject Name: Administrative Law

Subject Code: 730-365 Student ID Number: 257267

Assignment Name or Number: Administrative Law Seminar Written Response

1)

TSG must establish that its interests are adversely affected by the decision under s 3(4)(a)(i) of the ADJR Act to show it is a person aggrieved. TSG will be able to show that it is a person aggrieved as its interests in the subject matter of the decision exceeds the interests of the ordinary members of the public, and is not a mere busybody.1 Firstly, by listing LTTE under s 15(1) of the Charter of United Nations Act 1945 (Cth) (CUNA Act), an asset that is owned or managed by LTTE is to be frozen. As TSGs funds held with NAB include donations it channels to groups controlled by the LTTE and it is also reported that a senior office holder in the TSG is in direct contact with senior members of the LTTE, TSGs funds will be deemed to be owned and managed by LTTE. Thus, Australia is obligated under the Charter of the United Nations (Dealing with Assets) Regulations 2008 (Cth) (CUNR) to freeze TSGs assets kept in an account with NAB, and prevent TSG from obtaining access to these assets. Therefore, the decision has an impact on TSGs proprietary rights, because it would no longer be able to use these funds to provide support to Tamils living in Melbourne.

Australian Conservation Foundation Incorporated v Minister for Resources (1989) 19 ALD 70, cited in Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1994) 56 FCR 50 per Lockhart J at 69.

Secondly, as a result of the decision, TSG will be committing an offence if it continues to channel donations to groups controlled by the LTTE.2 The penalty for doing so is a sentence of 5 years in jail.3 It would thus appear that TSGs interest is not merely an emotional or intellectual interest as it will suffer a great disadvantage beyond that of an ordinary member of the public, other than a sufferance of injustice or incurrence of costs if it is not successful in the proceeding. 4 Even though the standing test under the ADJR Act is often impossible to differentiate from the special interest5 standing test under the common law, the former is more generous than the latter.6 Hence, it is likely that the Court will find that TSG is a person aggrieved by the listing of LTTE.

2) CRLC will be able to show that it has a standing under the ADJR Act as it receives funding from the Victorian government in order to provide legal assistance to those individuals who have been accused of terrorism offences.7 This proves that CRLC is acknowledged by the State as a responsible community legal centre, justifying the financial support it receives. Nevertheless, CRLC may not be found to be a person aggrieved if its interests do not coincide with the public interest that the CUNA Act that grants the power to make the

2 3

Charter of United Nations Act 1945 (Cth) s 21(1). Charter of United Nations Act 1945 (Cth) s 21(1).

4 5

Australian Conservation Foundation Incorporated v Commonwealth (1980) 146 CLR 493 per Gibbs J at 530. Australian Conservation Foundation Incorporated v Commonwealth (1980) 146 CLR 493. 6 Roger Douglas, Douglas and Joness Administrative Law (5th ed, 2006), 855. 7 North Coast Environment Council Inc v Minister for Resources (1994) 55 FCR 492 per Sackville J at 513.

decision seeks to uphold.8 Here, CRLCs interest is to provide legal assistance to individuals who have been accused of terrorism offences, while the objects of CUNA Act is to preserve international peace and security9 by preventing and eliminating threats to the peace. Therefore, the reasons sought by CRLC based on the decision have no relation to maintaining international peace and security. It may be argued that CRLCs interest in the subject matter of the decision is no greater than any concerned third party. Its concerns are more based on intellectual or emotional10 and it does not benefit from any advantage if successful in the proceeding. As the alignment of interest is given more weight than government funding,11 there is doubt as to whether CRLC has established that it is a person aggrieved within the meaning of s 5 of the ADJR Act.

3) Firstly, under reg 4 of the CUNR, AFP is defined as the Australian Federal Police constituted by section 6 of the Australian Federal Police Act 1979.12 As LTTE is listed under s 15(1) of the Charter of United Nations Act 1945 (Cth), LTTE is regarded as a proscribed person or entity,13 which also satisfies the definition of designated person or entity.14 An asset is defined as a tangible asset which can refer to the funds kept in an account with NAB.15 In addition, controlled asset refers to a freezable asset,16 and the term freezable asset is defined as an asset that belongs to or is controlled by a proscribed person

Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1994) 56 FCR 50 per Lockhart J at 69. 9 Charter of United Nations Act 1945 (Cth) art 1. 10 Australian Conservation Foundation Incorporated v Commonwealth (1980) 146 CLR 493 per Gibbs J at 530. 11 Douglas, above n 6, 864. 12 Charter of the United Nations (Dealing with Assets) Regulations 2008 (Cth) reg 4. 13 Charter of United Nations Act 1945 (Cth) s 14. 14 Charter of the United Nations (Dealing with Assets) Regulations 2008 (Cth) reg 4. 15 Charter of United Nations Act 1945 (Cth) s 14. 16 Charter of the United Nations (Dealing with Assets) Regulations 2008 (Cth) reg 4.

or entity.17 Since the definitions of the words found in reg 41 of the CUNR are satisfied by reg 4 of the CUNR, if NAB who is currently holding the funds of TSG and suspects the asset is to be frozen under the CUNA Act, it is able to request the Australian Federal Police (AFP) for assistance to decide whether or not the funds belong to or is controlled by LTTE.18

NAB is to include as much details about the funds as possible and these information include listing the owner of the funds as TSG,19 and NAB can also include the details of the news report about a senior office holder in the TSG being in direct contact with senior members of the LTTE. If NAB is aware of TSGs internal rules that any significant spending proposal must be approved by its five-member board of management, it must also include that information in its request. The AFP must then do its utmost best to help NAB,20 and then reply in writing to NAB as soon as possible.21 The AFP must include in its response whether it believes that the funds indeed belong to or is controlled by LTTE, considering all the facts that it has been given.22 Therefore, the AFP must first investigate whether the senior office holder in the TSG who is in direct contact with senior members of the LTTE represents the interest of the latter, and has the ability to influence the remaining four members in the board of management in regards to spending proposal, especially when it comes to funding the LTTE in its campaign to establish a separate Tamil state within Sri Lanka. If the AFP is satisfied that TSG is the voice of LTTE, LTTE will be deemed to be in control of the funds in NAB.

17 18

Charter of United Nations Act 1945 (Cth) s 14. Charter of the United Nations (Dealing with Assets) Regulations 2008 (Cth) reg 41(1). 19 Charter of the United Nations (Dealing with Assets) Regulations 2008 (Cth) reg 41(2). 20 Charter of the United Nations (Dealing with Assets) Regulations 2008 (Cth) reg 41(3). 21 Charter of the United Nations (Dealing with Assets) Regulations 2008 (Cth) reg 41(4). 22 Charter of the United Nations (Dealing with Assets) Regulations 2008 (Cth) reg 41(5).

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