Print
Administrative law is the area of law you will need to rely on if you disagree with a decision or an action of a government officer, department or authority, or another person exercising power granted by statute (public power)
Administrative law generally only enables decisions or actions that are “administrative” in nature to be challenged. Administrative decisions are usually not decisions to enact legislation, broad government policy decisions, employment decisions, criminal matters or contract decisions.
Examples of administrative decisions that you may be able to challenge under administrative law principles and mechanisms include decisions by:
- a Council to acquire land;
- ASIC to declare a person not fit and proper to hold a financial services licence;
- a Minister not to grant a visa; and
- Centrelink to cease paying a benefit.
There are four main types of review of administrative decisions:
- reconsideration;
- review on the merits;
- judicial review by a court; and
- complaint to an Ombudsman.
Always consider whether the original decision maker may be able to reconsider their decision, and if they are, ask them to do so.
A review “on the merits” generally means that a person will look again at a decision that has been made and consider what is the “correct and preferable” decision. You will only have a right to a review of an administrative decision “on the merits” if an Act or Regulation gives you this right.
Carefully read the Act or Regulation under which the decision was made to see if it gives you a right of review of the decision. Also check the Administrative Appeals Tribunal Act 1975 (Cth) if the decision is a Commonwealth decision; and the Victorian Civil and Administrative Tribunal Act 1998 (Vic) if the decision is a Victorian decision.
One of the most common rights of merits review is to a general tribunal such as the Commonwealth Administrative Appeals Tribunal (AAT) or the Victorian Civil and Administrative Tribunal (VCAT).
Judicial review is brought before a court. The court can only determine whether the decision complained about is unlawful and of no effect (see Fact Sheet Judicial Review). If there is legal error, the court will send the matter back to a decision-maker to make a decision again.
One of the most difficult things to understand in administrative law is the difference between judicial review and merits review. You need to understand this when analysing the basis for challenge to the decision. See The Law Handbook Chapter 21.1 for an interesting analogy to explain this concept.
If there is a relevant Ombudsman they may have a discretion to investigate complaints as a last resort. It is best to try to solve the problem first. After investigation, the Ombudsman can usually only make a report and cannot replace the decision.
Before deciding whether or not to challenge a decision consider the following checklist:
- Act quickly.Find out whether any time limits apply.
- Try to find the name and the position of the officer responsible for work on the case.Find out who made the decision and under what authority. Find out whether they can reconsider the case.
- Work out whether it is a state decision or a federal decision.Different laws and court procedures apply to state and federal decisions so you will need to find out what jurisdiction applies.
- Carefully read the legislation the decision was made under.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 there are any time limits.
- Try to obtain reasons for the decision.This will help you understand the decision that has been made and identify any grounds for complaint you might have.
- Select method of review.If no specific right of review or appeal is provided by the relevant legislation, your only choices for review will be judicial review or a complaint to the relevant Ombudsman.
If a specific right of appeal on the merits is provided by an Act or Regulation, it will usually (but not always) be wiser to choose review on the merits over judicial review.
For more information about the different types of review see Fact Sheets Judicial Review, Administrative Appeals Tribunals and Ombudsman.
A number of statute at federal and state levels now specifically require administrative decision-makers to give reasons for decisions, particularly for adverse decisions.
You must seek 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.
For more information on this subject refer to The Law Handbook chapter 21.1
 Prev |
 Next
|
|
| Chapter 35. WILLS & ESTATES | Chapter 37. JUDICIAL REVIEW |
Table of Contents
Search the fact sheets
|
Print
Glossary
|