Rules that govern the decisions of public officials, covering their powers and functions and the procedures they have to follow. is an area of law that you A document that sets out what a person wants to happen to their money and other property after they die. 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 A law made by parliament, either state or Commonwealth. Also called an Act, and Act of parliament or legislation.). 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, Laws made by bodies subordinate to parliament. These laws may be regulations or rules, local laws or Orders-in-Council. 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 (1) An agreement to pay for the temporary use of something, for example a car. Also called renting or leasing. (2) To employ someone to do work. an employee; however, administrative law may apply to public Formal delivery of legal documents to a person to tell them there are court proceedings against them which they must defend, or to make sure a witness in a case knows when they have to go to court to give evidence. misconduct decisions);
- criminal cases (e.g. decisions to prosecute; however, administrative law does apply to investigations); and
- An agreement that the law will enforce. decisions (e.g. decisions by government to enter into a contract; however, To offer or hand over. For example, evidence is tendered in a court. Money is ‘legal tender’ that can be handed over in exchange for goods. A debtor can tender (offer) an amount of money in full payment of a debt, even if the debt is more than the amount tendered. Also, a tender can be a quote offering to construct a building or undertake renovations for a given price. processes may be subject to some administrative law principles).
Examples of administrative decisions that your 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 A permit that allows a person who is not a citizen to stay in a country on certain conditions, for the length of time stated in the 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 ‘Found in a statute of delegated legislation. For example, a statutory authority or body is aperson or organisation that has special powers given by parliament to do work for the public benefit. 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:
- a reconsideration by the original decision-maker;
- a specific statutory right to review of the decision ‘on the merits’ (internally or by a A body set up to hear and decide disputes, usually with less formality and less strict rules of evidence than in a court proceeding.);
- The court’s review of an administrative decision on the basis of a legal error in the decision-making process. For example, a court can review a decision by an official on the ground that the official is biased. Compare review on the merits. See also administrative act. by a An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate.; or
- complaint to a body, such as the relevant A public official appointed to investigate citizens’ complaints against government departments and statutory authorities. A specialised ombudsman resolves consumer complaints in a particular industry, for example the banking ombudsman for the banking industry. See also statutory authority..
There are also The review of the decision of a lower court by a higher court. If an appeal is successful, the higher court can change the lower court’s decision. 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 Statutory rules made by parliament or by bodies the parliament delegates power to, for example a local council or a registration authority. See delegated legislation; statute. 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 below, and in Chapter 12.3: 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  HCA 11 if you want a decision-maker to reconsider their decision, if the decision-maker may have made ‘jurisdictional errors’.
Type 2: Review of a case by a tribunal based on a full rehearing of the facts. This is different from an appeal that deals only with arguments about the law.
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 look at the matter as a whole, considering all the relevant facts (which usually include any additional Material presented to a court to prove or disprove a fact. It can include what witnesses say as well as documents and other objects. you wish to provide to them), any relevant policy and the relevant law. They can make fresh findings of fact if they
think the original decision contains errors of fact. They will then be able to substitute their own decision for the decision originally made, or they may uphold the original decision.
You will only have a right to a review of an administrative decision ‘on the merits’ if an A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. 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 Power to choose whether to do something or not. For example, a judge may have discretion to allow a party extra time to complete a document if it would be unfair to enforce the legal time limit. 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 Something of value, such as money, given by one person to another person as part of a contract. 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 Claimed but not proved. For example, the police can allege in court that a car was stolen, but they then have to prove it with evidence. If you say a person did something illegal you are making an allegation. Unless you can back it up, you will not be able to win a court case about it., 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.
One of the key distinctions between merits review and judicial review is that merits review allows the new decision-maker to make fresh findings of fact, and to exercise their discretion to make a different decision that is based on the facts as they find them.
With judicial review, the courts generally cannot make fresh findings of facts or remake the decision based on those findings. Instead, the courts are restricted to the facts as found by the original decision-maker; the courts are concerned with whether the original decision contains an error of law (i.e. whether the decision is lawful).
In Administrative Power and the Law (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; see ‘More information’ at the end of this chapter for information of this publication. See also ‘‘Judicial review’, below, 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 Chapter 12.3: Taking a problem to an ombudsman.
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 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 The transfer of responsibilities from a higher authority to a lower one. For example, a government minister may have power to hand their decision-making responsibility for visa applications to a public servant. Whenever there is a delegation, the higher official continues to have the authority to make the decision. 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 (1) A defendant in a civil case that has been appealed to a higher court. (2) A person against whom some originating motion has been issued by an applicant. See also appellant. 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 Chapter 12.3: 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 obtain a copy of the decision-maker’s written 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 (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 The right of any person to access documents held by government agencies, except documents excluded by legislation. legislation (see Chapter 12.5: 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 (see ‘Judicial review’, below) or to make a complaint to the state or federal ombudsman (see Chapter 12.3: 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 The time and place at which a court or tribunal hears the parties argue their case and makes a decision. lasts, and what the lawyer’s fees are. Merits review by the AAT (if the decision is a Commonwealth decision) or by VCAT (if the decision is a Victorian decision) is discussed more fully below in ‘Administrative appeals tribunals’.
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 (1) The system of law developed by the English courts through precedent and adopted in ‘common law countries’ in the British Commonwealth (as opposed to Roman law (civil law) or ecclesiastical law). (2) The case law made by judges in that system. (3) Case law that is not part of the law of equity. (4) Historically, the rules of law common to all people in England, as distinct from local or customary laws. 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 A document issued by a court directing an officer to take certain action. May be a warrant of apprehension, directing that a person be arrested and brought before a court; a warrant of commitment, directing that a person be arrested and imprisoned; a warrant of distress, directing that a person’s goods be seized to satisfy a debt; or a warrant of seizure and sale of real estate. 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 A person or organisation directly involved in a court case. Parties include the plaintiff or applicant, the defendant, and any third party added to the action, but not independent witnesses. to pay a proportion of your The amount charged by a lawyer for legal work. Lawyers can only charge the amount agreed with the client in a costs agreement or the amount stated by a court in its rules. The party who loses a case usually has to pay all their own costs plus most of the costs reasonably incurred by the other side. See also indemnity costs.. If you lose, the court will usually order you to pay the other side’s costs. However, some jurisdictions have an A promise to pay compensation to cover losses or expenses that may arise in the future if some stated event occurs. For example, if a business partnership ends and one partner continues to run the business, they generally agree to indemnify the others against any claims against the business in the future. Insurance contracts also indemnify the insured against stated risks. 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 cannot 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 12.3: Taking a problem to an ombudsman).
For more information about the different types of review, see ‘Judicial review’, and ‘Administrative appeals tribunals’, below, and Chapter 12.3: 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.
Obtaining a statement of reasons under Commonwealth law
You may be entitled to obtain a statement of reasons for a decision 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.
A statement of reasons is a written document that gives the reasons for a decision, sets out the findings on Relevant or important. For example, material evidence is something that helps to prove an argument in a criminal case. questions of fact, and refers to the evidence or other material on which those findings were based (s 28(1) AAT Act; s 13(1) ADJR Act).
Obtaining a statement of reasons under the AAT Act
You will generally be entitled to a statement of reasons under the AAT Act if you have a right to apply to the AAT for merits review (s 28(1)). A request for a statement of reasons must be in writing, and must be made either within 28 days or within a ‘reasonable time’ – this is determined by the AAT and depends on the form of the decision (s 28(1A)). Where such a request is made, the decision-maker is obliged to provide a statement of reasons to you within 28 days (s 28(1)).
Obtaining a statement of reasons under the ADJR Act
You will generally be entitled to a statement of reasons under the ADJR Act if:
- the decision is one to which the ADJR Act applies (see ‘Review under the federal Administrative Decision (Judicial Review) Act’, below);
- the decision is not included in the classes of decisions listed in the ADJR Act (sch 2); and
- you have The right to appear in a court action and be heard. In general, a person cannot bring a case or have their say in a court about something that does not directly affect their interests. They must be able to show that they have sufficient interest in the case because, for example, of possible effects on their property or commercial activities. Also called locus standi. to challenge the decision (see ‘Judicial review: establishing standing to sue’).
A request for a statement of reasons must be in writing, and must be made either within 28 days or within a ‘reasonable time’ – this is determined by the Federal Court or the Federal Circuit Court, depending on the form of the decision (s 13(5)). Where such a request is made, the decision-maker is obliged to provide a statement of reasons to you within 28 days (s 13(2)).
Obtaining a statement of reasons under the specific Act or Regulation
You should also check the specific Act or Regulation under which the decision was made to see whether it contains a mechanism for obtaining reasons from the decision-maker.
Obtaining a statement of reasons under Victorian law
You may be entitled to a statement of reasons for a decision under the:
- VCAT Act;
- Administrative Law Act 1978 (Vic) (‘AL Act’); or
- specific Act or Regulation under which the decision was made.
Obtaining a statement of reasons under the VCAT Act
A statement of reasons provided under the VCAT Act should be in writing and give the reasons for the decision, set out the findings on material questions of fact, and refer to the evidence or other material on which those findings were based (s 46(2)). You will generally be entitled to a statement of reasons under the VCAT Act if you have a right to apply to VCAT for merits review (s 45(1)).
A request for a statement of reasons must be made in writing within 28 days of the decision being made (s 45(2)). Where such a request is made, the decision-maker is usually obliged to provide a statement of reasons to you within 28 days (s 46(1)).
Obtaining a statement of reasons under the AL Act
A statement of reasons provided under the AL Act should be in writing and be adequate to enable the Supreme Court to see whether the decision involves an error of law (s 8(3)-(4)).
You will generally be entitled to a statement of reasons under the AL Act if you are a ‘person affected’ by a decision to which the AL Act applies (s 8(1)) Act’.
A request for a statement of reasons may be made orally or in writing, and must be made within 30 days after the decision has become known to you, and not later than 90 days after the decision was made or when you were notified of the decision (s 8(2)).
Where such a request is made, the decision-maker is obliged to provide a statement of reasons to you within a ‘reasonable time’ (s 8(3)).
Obtaining a statement of reasons under the specific Act or Regulation
You should also check the specific Act or Regulation under which the decision was made to see whether it contains a mechanism for obtaining reasons from the decision-maker.