When deciding whether or not to challenge a decision:

1. Act quickly: The first thing you should do is find out the time limits for the steps that may be required, for example, 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 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 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 decision or a federal decision: As explained in Chapter 21*2 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 (see: Chapter 21*4 Ombudsman for contact details).

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 usually try to find out the decision-maker's reasons for the decision (unless there are reasons for you not to do so, e.g. 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 (see: "Obtaining reasons for government decisions", below.)

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 (FoI) legislation (see: Chapter 21*6 Freedom of Information), 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 an FoI 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 will be to seek judicial review of the decision in the courts (see: Chapter 21*2 Judicial Review) or to make a complaint to the State or Federal Ombudsman (see: Chapter 21*4 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 in Chapter 21*3 Administrative Appeals Tribunals. 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 derives from the common law (see the "Glossary" for a definition of common law) and is not likely to be addressed in the relevant legislation that empowered the making of the decision. The court has a discretion on judicial review; even if they find a legal error they may not send the matter back if they think that 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 your costs on a party/party basis. If you lose, the court will usually order you to pay the other side's costs.

Where no merits or judicial review is available, you may be able to proceed by way of a complaint to the Ombudsman, whose services are free. Note that the Ombudsman will have no power to actually 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: Chapter 21*4 Ombudsman).

For more information about the different types of review see: Chapters 21*2 Judicial Review, 21*3 Administrative Appeals Tribunals and 21*4 Ombudsman.