The most recent - the THIRD - deadline for the filing of FRAP appeals on 29 July 2022 will certainly have to be extended again because Creecy continues to fail in her most basic obligations to ensure a fair and proper appeals process.
Key to ensuring compliance with her Constitutional and PAJA obligations as the appellate authority, is ensuring that appellants and access to competitor applications to determine whether their applications have been properly assessed AND that appellants can actually appeal the decisions of her delegated authorities.
Where are the Competitor Applications?
In her last statement announcing the extension by 60 days of the last appeals process, Creecy importantly admitted that neither she nor her team foresaw having to make these applications available (!!!) and therefore required individual applicant consents to share their individual applicant data on line.
The admission is damning. It's an admission that the Department and their minister have no clue how to allocate fishing rights and what their legal and process obligations are. We have stated this before but Creecy confirmed their ignorance in writing.
Secondly, we advised our clients to object to the publication of any of their data via the unsecure and problematic FRAP ONLINE SYSTEM. Access to competitor applications can only take place as has historically occurred - the viewing of hard copy applications without the option of photographing and copying competitor application data. To publish data in excel format as the department envisages would be catastrophic for applicants as their private commercial, personal and financial data would be open to the world and competitors to digitally analyse and manipulate.
Until these applications are made available in hard copy, the 30-day appeals process cannot commence.
And What About those incomplete and nonsensical GPR's?
In my view, this is fatal for the process. The delegated authorities have discharged their legal obligations and are now functus officio. They cannot go back and make any changes to the GPR's; they cannot go and insert missing scoring rules that dominate the GPRs, or try and fix their incomplete and nonsensical reasons for their decisions in their "decision letters" or their incomplete and bizarre comments in the scoresheets.
And neither can Creecy. She cannot in fact herself know how an appellant was scored and evaluated as the GPR's dont actually provided these details. The GPR is supposed to be complete and total record of how each individual decision was made, allowing even appellant to accurately determine whether its score and evaluation was correctly recorded.
None of the GPR's permit this. These decisions are accordingly irrational, arbitrary, incomplete and unlawful.
And what is the solution?
As I have stated repeatedly before, the only conceivable way forward is for a court of law to review and set-aside the entire FRAP and this process has to start again. Unfortunately, it will have to historic right holders that have been unlawfully denied their rights who initiate this litigation.
But dont you have to wait for the appeals process to be concluded before you can approach a court of law for help?
No. You dont. Especially in this instance where the appeals process cannot lawfully be concluded for the two reasons given above.
The Minister is in check-mate. Some one must simply knock her down now.
