Challenging administrative decisions

 

Individual decisions or actions by government departments or public officials are covered by administrative law. They are usually made with statutory power and do not include policy, legislation, employment, crime, or contracts. They can be reviewed by reconsideration, merits review, judicial review, or the Ombudsman.

Administrative law

Administrative law is an area of law that you will need to rely on if you wish to challenge a decision or action of a government official, department or authority. Administrative law may also apply when the person whose decision you wish to challenge is not a government officer but is exercising “public power” (e.g. a power granted to a person by a statute). Decisions or actions governed by administrative law are called (in this chapter) “administrative decisions”.

Administrative law usually only enables decisions (or actions) that are “administrative” in nature to be challenged. In other words, there are other types of “decisions” made in government that are not governed by administrative law. The following are examples of decisions that may not be governed by administrative law:

legislative “decisions” (e.g. the making of laws; however, delegated legislation may be reviewable on a similar basis to administrative decisions);

broad policy decisions (e.g. deciding to reduce a grants program);

employment decisions (e.g. decisions to hire an employee; however, administrative law may apply to public service misconduct decisions);

criminal cases (e.g. decisions to prosecute; however, administrative law does apply to investigations); and

contract decisions (e.g. decisions by government to enter into a contract; however, tender processes may be subject to some administrative law principles).

Examples of administrative decisions that you may be able to challenge using administrative law principles and mechanisms include decisions:

by a council to compulsorily acquire land;

by ASIC to declare a person not fit and proper to hold a financial services licence;

by a minister not to grant a visa;

by Centrelink to cease paying a benefit; and

to impose conditions on a licence.

Administrative decisions are usually made by government officers, but may also be made by people who work in corporations or alone. If the decision involves “statutory power” then it is likely to be regulated by administrative law.

Types of review of administrative decisions

There are four main types of “review” of administrative decisions:

1 a reconsideration by the original decision-maker;

2 a specific statutory right to review of the decision “on the merits” (internally or by a tribunal);

3 judicial review by a court; or

4 complaint to a body, such as the relevant ombudsman.

There are also appeal mechanisms in administrative law. For example, an appeal from a tribunal decision on a question of law may be made to a court if the legislation allows for it, or a tribunal may conduct a form of appeal against a decision-maker’s decision. Always check the legislation for the specific type of review or appeal that may be available.

This chapter provides a brief overview of reconsideration, merits review, judicial review, and ombudsman review, and describes the steps you should take if you are considering challenging an administrative decision. Each type of review is discussed in more depth under “Judicial review”, and in Taking a problem to an ombudsman.

Type 1: Reconsideration

As long as the original decision-maker has not “exhausted” their power, they may be able to reconsider their decision. Always consider this option first, subject to any time limits that might restrict other forms of review. If you are not sure, you may ask the decision-maker whether they are prepared to reconsider the matter. Generally speaking, if more than one person’s “rights” are at stake, reconsideration may not be possible. For example, if there are limits to the number of licences a decision-maker may grant, and a licence has been granted to someone else instead of you, reconsideration of your matter might not be available, because it might impact on their right to that licence.

See the case of Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 if you want a decision-maker to reconsider their decision, if the decision-maker may have made “jurisdictional errors”.

Type 2: Review on the merits

A review “on the merits” generally means that a person will look again at a decision that has been made and make what they think is the “correct and preferable” decision instead. (Check the relevant legislation for the limits of the merits review.) The person conducting the review will usually be able to consider any additional material you wish to provide to them and come to their own decision about the facts of the case. They will then be able to substitute their own decision for the decision originally made.

You will only have a right to a review of an administrative decision “on the merits” if an Act or Regulation gives you that right.

A right of review “on the merits” can be a very valuable right. If you are unhappy with an administrative decision or action you should carefully read the Act or Regulation under which the decision was made to see if it gives you an express right of review. (Also check the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) if the decision is a Commonwealth decision; and the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (“VCAT Act”) if the decision is a Victorian decision.)

Some laws give wide rights of merits review, while others give none. The right of review may be to a higher official, a minister, a specialist tribunal (within or outside the departmental framework), or to an independent general tribunal, such as the Commonwealth Administrative Appeals Tribunal (AAT) or the Victorian Civil and Administrative Tribunal (VCAT).

One of the most common rights of review is a right of review to a general tribunal such as the AAT or VCAT. Appeals of this nature are dealt with in greater depth in the “Administrative appeals tribunals” section, below.

Type 3: Judicial review

Judicial review is review by a court, which determines whether the decision complained about is unlawful and of no effect. The court then exercises its discretion regarding whether or not to grant relief. The court usually has no power to review the decision “on its merits” or determine whether or not it was a decision the court would have made. The court only has the power to review the decision to see whether the decision-maker made the decision lawfully. However, some of the “grounds of review” do require some consideration of the merits of the case (e.g. if the decision-maker took into account an irrelevant consideration, or if the decision is manifestly unreasonable). And occasionally, when jurisdictional error is alleged, the court may need to make findings of fact.

Judicial review vs merits review explained

One of the most difficult things to understand in administrative law is the difference between judicial review and merits review. It is important to understand this difference when analysing the decision you wish to challenge, and the potential basis for such a challenge. In Administrative Power and the Law (Fiona McKenzie, 2007, pp. 12–13), the difference has been explained by way of analogy as follows:

The decision-maker stands poised to make an administrative decision. Before making the decision, they must embark on a journey down a path which leads to an orchard. Trees from within the orchard’s boundaries contain a variety of fruits. Any fruit may be picked – any decision may be made – as long as it is from a tree planted within the boundaries of the orchard.

(This represents “discretion”.)

There is only one lawful path to the orchard. If the decision-maker digresses, strays off the path, and picks some fruit from a tree outside the path, it will not be fruit from a tree in the orchard … If the decision-maker strays off the path, they will not be making a lawful decision …

What if a fruit from a tree outside the orchard is picked? If challenged, the reviewer (whether a court or tribunal) may throw away the fruit (set aside or quash the decision). The court can only throw it away if it is unlawful (outside the orchard). The merits review decision-maker can throw it away for any reason (i.e. fruits from inside and outside the orchard may be discarded). The merits review decision-maker … may select a new fruit for consumption, after walking down the path to the orchard in order to find it. If the reviewer is a judicial review decision-maker, that is, a court, they may order another decision-maker to start the process again and choose a new fruit. The court on judicial review will generally not stand in the shoes of the decision-maker and walk down the path in order to choose a new fruit …

(See Administrative Power and the Law for a useful picture of this analogy; you can order it from www.adminlaw.com.au. See also “‘Judicial review”, for more details.)

Type 4: Complaint to an ombudsman

In addition to the above forms of review, you can often complain to a complaints body such as the relevant ombudsman. However, an ombudsman is usually a last resort – you should exhaust other merits or judicial review options first. Ombudsmen investigate complaints about decisions of government officers and agencies, as well as systemic issues, and can decide whether or not any complaint should be investigated.

It is best to try to solve the problem directly with the relevant agency first before approaching an ombudsman. After the investigation, an ombudsman will make a report but cannot directly overturn the original decision or substitute their decision for that under review. The functions of the state and Commonwealth ombudsmen are discussed in Taking a problem to an ombudsman.


NOTE

There are also industry based ombudsmen; however, if they are not set up by a statute, they are not part of the administrative law framework.


Where do I start?

When deciding whether or not to challenge a decision:

1  Act quickly

Find out the time limits for the steps that may be required (e.g. requests for reasons or applications for merits review or judicial review). Some time limits are strict and cannot be extended.

2  Try to find the name and the position of the officer responsible for work on the case

Try to find out who has exercised power and under what alleged authority (e.g. was the power delegated?). Find out who has had carriage of the case (this may be a different person). Find out whether the decision-maker may be able to reconsider the case. Also, check whether the decision-maker actually had proper authority. Ask for the written delegation or authority or appointment (sometimes called an “instrument”) and check whether it covers the particular decision made (e.g. check the date, signature, name of officer and section of the relevant Act, etc.). It is important to check this as early as possible.

If you wish to take legal action over the matter, you may need the identity of the decision-maker (the officer and/or the department) in order to name them as the respondent to your claim. However, it may be appropriate to name the delegator (e.g. the minister or secretary of the department) instead, depending on the circumstances (see Acts Interpretation Act 1901 (Cth) or the Interpretation of Legislation Act 1984 (Vic) on delegation issues).

3  Work out whether it is a state or federal decision

As explained below in “Judicial review”, different laws and court procedures apply to state and federal decisions. (If it is made at local government level, it is likely to be reviewable as part of the state system.) If you are not sure whether a matter is a federal or state matter, you might ask the decision-maker or the department. The department should have a website or be listed in the telephone book. The state or federal ombudsman will also be able to help you (for contact details, see Taking a problem to an ombudsman).

4  Carefully read the relevant legislation

If the decision was made under a particular Act or Regulation, then you should read that legislation carefully. Check whether the decision-maker had the power to make the decision they made and whether the correct procedures have been followed. Also check whether you have any express rights of review and if so, who conducts this review and whether any time limits or other special procedures apply. If the decision was not made under an Act or Regulation, think about how the decision-maker had any power at all – this will impact on review rights.

5  Try to obtain reasons for the decision

You should try to find out the decision-maker’s reasons for the decision (unless there are reasons for you not to do so, for example, if the error is so obvious that you can challenge the decision without obtaining their reasons). If you are not entitled to reasons under a statute you can still ask for them – the decision-maker may give reasons voluntarily. If a statute entitles you to reasons then check time limits carefully (they must usually be sought within 28 days from when the decision was made or received). A statement of reasons will help you understand the decision that has been made and also identify any grounds for complaint you might have (seeObtaining reasons for government decisions”.)

Documents should be provided or referred to in the statement of reasons. Ask for any relevant policy or procedural manuals as well. Further relevant documents may also be obtained under freedom of information legislation (see Freedom of information law), although this can take time. You may not be able to obtain this information within the time limits for bringing any application for review. However, it may still be useful to make a freedom of information application, even if documents are obtained after the application is issued.

6  Select the method of review

If no specific right of review or appeal is provided by the relevant legislation, your only choices for review are likely to be to seek judicial review of the decision in the courts (seeJudicial review”) or to make a complaint to the state or federal ombudsman (see Taking a problem to an ombudsman).

If a specific right of review on the merits is provided by an Act or Regulation, it will usually be wiser to choose a review on the merits rather than judicial review, as fresh evidence can be assessed by the reviewer, who will look at the case as a whole with fresh eyes. Sometimes, however, it is more appropriate to seek judicial review, for example, where merits review will not resolve a fundamental issue (such as an entrenched and unlawful policy that is likely to be followed on merits review).

Usually on merits review the applicant will have to pay their own lawyers’ fees but not the other side’s legal fees, regardless of whether the applicant wins or loses the case. A review on the merits may be less expensive than judicial review, but that depends on how many steps must be prepared, how long the hearing lasts, and what the lawyer’s fees are. Review by the AAT (a form of review on the merits) is discussed more fully below in the “Administrative appeals tribunals” section.


NOTE

Review on the merits is not always available or appropriate. Always check the relevant legislation to see if there is a merits review right.


By comparison, the right to obtain judicial review primarily derives from the common law and is not likely to be addressed in the relevant legislation that empowered the making of the decision. Even statutory judicial review rights usually contain a common law component in terms of the eligibility or grounds for review. The court has a discretion on judicial review; even if they find a legal error they may not send the matter back for redetermination if they think that the circumstances do not warrant it. If you win on judicial review, the court is likely to send the matter back to the original (or another) decision-maker to make a decision again lawfully. A favourable outcome is not guaranteed, however, research shows that matters sent back this way often result in a favourable outcome (to the applicant).

As noted above, judicial review may be appropriate where merits review cannot remedy the legal error you have identified. If you win, the court will usually order the losing party to pay a proportion of your costs. If you lose, the court will usually order you to pay the other side’s costs. However, some jurisdictions have an indemnity system (see Appeal Costs Act 1998 (Vic)).

Where no merits or judicial review is available, you may be able to proceed by way of a complaint to an ombudsman, whose services are free. Note that an ombudsman can not overturn the administrative decision in question and can only make recommendations for corrective action (if any) and make findings in relation to maladministration that are not binding on the parties (see Taking a problem to an ombudsman).

For more information about the different types of review seeJudicial review”, and “Administrative appeals tribunals”, and Taking a problem to an ombudsman.

Obtaining reasons for government decisions

Requirements to give reasons and time limits for requests

A number of statutes at federal and state levels specifically require administrative decision-makers to give reasons for decisions. For example, the Act may require an adverse decision to be accompanied by reasons. Otherwise, a person affected by a decision will usually be entitled to receive reasons under a separate statute if they ask for them.

It is important that you request reasons within the time periods specified in these statutes. Even if you do not have a statutory right to reasons, it is still worth writing to the decision-maker to request reasons for the decision if you have not already been provided with them. It is usually very important to obtain reasons, as it will show the thinking processes of the decision-maker and shed light on whether or not their decision was lawful.

Statement of reasons under Commonwealth law

A statement of reasons for a decision may be required to be provided to you under:

the AAT Act;

the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”); or

the specific Act or Regulation under which the decision was made.

You will be entitled to reasons under the AAT Act if you have a right of merits review to the AAT (s 28 AAT Act).

You will be entitled to reasons under the ADJR Act if:

the decision was one to which the ADJR Act applies;

it is not a decision listed in schedule 2 of the ADJR Act; and

you have standing to challenge the decision (seeJudicial review”).

Under the ADJR Act “any person who is entitled to make an application (for an order of review)” may require any Commonwealth decision-maker who is subject to the Act:

… to furnish a statement in writing setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based and giving the reasons for the decision (s 13).

The request may be made within 28 days or within a reasonable time, depending on the form of the decision (s 13(5)).

Statement of reasons under Victorian law

Under the Administrative Law Act 1978 (Vic) (“ALA”) any “person affected” by a decision to which the ALA applies may ask the decision-maker to provide a statement of reasons (s 8(1)). The types of decisions to which the ALA applies are described below in the “Judicial review” section, under the heading “Scope of the Act”. Normally the request must be made within 30 days after the decision has become known to the individual and in any event not later than 90 days after its giving or notification (s 8(2)).