Challenging administrative decisions

Based on the contribution of David Kelsey-Sugg and Heather Lambrick for the Fitzroy Law Handbook 2016, as amended by Andrew Klein and current to March 2022

Challenging administrative decisions - an overview

The "administrative decisions" that are referred to in this chapter are almost always made under legislation, or a regulation or other law that is created by legislation. The area of law that deals with administrative decisions is called administrative law. Therefore, this is the area of law that you will need to rely on if you are going to challenge a decision or action of a government official, department or authority, or another person who is exercising a “public power” (that is, a power granted to a person under legislation).

The various levels of government that exist, including the Commonwealth and ACT government, make literally thousands of administrative decisions affecting people's rights every day. Examples of administrative decisions that can be challenged using administrative law principles and mechanisms include decisions:

• by Centrelink to cease paying a benefit, or to raise an overpayment;
• by a council to compulsorily acquire land;
• by a minister not to grant a visa; or,
• by the ACT government to impose conditions on a licence.

If a decision involves the exercise of a “statutory power” then it is likely to be regulated by administrative law.

There are four main ways to challenge an administrative decision:

1. Request a reconsideration by the original decision-maker;
2. Apply pursuant to a specific statutory right to review of the decision “on the merits” (internally or by a tribunal);
3. Request a judicial review by a court; or
4. Complaint to a body, such as the relevant ombudsman.

There are also specific 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. Most government departments will provide you with information about the process you can follow to request a review or how to appeal when notifying you that the decision has been made. Information on how to appeal against a decision will generally be on the website of the department that made the decision. You can also check the relevant legislation for the specific type of review or appeal that may be available.

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. some decisions can only be appealed or a request made for review within a certain number of days). 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 (i.e. who made the decision) 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 as if the person who made the decision didn't have the relevant power this may invalidate the decision without you needing to do anything else.

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 Legislation Act 2001 (ACT) on delegation issues).

3. Work out whether it is an ACT government or Commonwealth government decision

As explained below, different laws and court procedures apply to ACT government and Commonwealth government decisions. If you are not sure whether a matter is a federal or territory matter, you can ask the decision-maker or the department. The department should have a website. The state or federal ombudsman will also be able to help you.

4. Carefully read the relevant legislation

If the decision was made under a particular Act or Regulation, then you should read that legislation carefully. As discussed above, check whether the decision-maker had the power to make the decision as a first step, and then check whether all the correct procedures and processes 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.

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.

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 What is 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 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 or to make a complaint to the ACT Ombudsman or Commonwealth Ombudsman.

If a specific right of review on the merits is provided by an Act or Regulation (as discussed further below), 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).

Obtaining reasons for government decisions

Requirements to give reasons and time limits for requests

A number of statutes at federal, state and territory 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 Administrative Appeals Tribunal Act 1975 ("AAT Act");
• the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“ADJR Act”);
• 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 theADJR 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.

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) ADJR Act)).

Statement of reasons under ACT law

Under the ADJR Act any “person affected” by a decision to which the ACT ADJR Act applies may ask the decision-maker to provide a statement of reasons (s 13).

Merits Review or Judicial Review - what's the difference?

As discussed above, there are two main ways in which an administrative decision can be reviewed; merits review or judicial review.

As the name suggests, merits review is a type of review that considers all the evidence about the merits of a decision and decides whether or not a correct and preferable decision should be made. It is sometimes called a “de novo” appeal. This means that the person or body (e.g. a Tribunal) puts itself in the shoes of the original decision-maker and considers all the evidence from a fresh perspective.

Judicial review is a type of proceeding where a court looks at the lawfulness of the decision-making process. If the court finds that a decision is unlawful, that decision will be quashed and the decision-maker can be forced to re-make the decision according to the law.

To put it simply; merits review allows the person or body reviewing the original decision to take into account all of the relevant evidence and circumstances to decide whether the original decision was correctly made, whereas a judicial review only looks at whether there has been a legal error in making the decision.

Specialist Administrative Tribunals

The Administrative Appeals Tribunal ("AAT") and Australian Capital Territory Civil and Administrative Appeals Tribunal ("ACAT') are the administrative review tribunals which consider decisions made by Commonwealth and ACT government bodies respectively. A wealth of useful information regarding the processes to request a review of a decision, and how these Tribunals work generally, can be found on the Tribunals' websites (see address below).

AAT (Commonwealth)

The AAT conducts independent merits review of administrative decisions made under Commonwealth laws. It reviews decisions made by Australian Government ministers, departments and agencies.

The AAT does not have a general power to review decisions. It can only review a decision if an Act, regulation or other legislative instrument states that the decision can be reviewed by the AAT.

The AAT can review decisions made under more than 400 Commonwealth Acts and legislative instruments. The most common types of decisions it reviews relate to:

• child support;
• Commonwealth workers’ compensation;
• family assistance, paid parental leave, social security and student assistance;
• migration and refugee visas and visa-related decisions;
• taxation;
• veterans' entitlements.

It also reviews decisions relating to:

• Australian citizenship;
• bankruptcy;
• civil aviation;
• corporations and financial services regulation;
• customs;
• freedom of information;
• the National Disability Insurance Scheme;
• passports; and
• security assessments by the Australian Security Intelligence Organisation (ASIO).

The AAT is not always the first step in having a decision reviewed. In some cases, it cannot review a decision until there has been an internal review of the primary decision or review by a specialist review body like the Veterans’ Review Board.

Further information about the AAT can be found on its website (www.aat.gov.au).

ACAT (ACT)

ACAT conducts merits reviews in a similar way to the AAT, but in respect of decisions made by the ACT government.

The ACAT website (www.acat.act.gov.au) provides detailed information about how to lodge a request for review and the Tribunal's process and procedures.

Seeking judicial review - standing and grounds

Standing

Not everyone who feels the government has behaved wrongly in taking a particular administrative action or administration decision to bring a case. It must first be shown that the person has standing to sue (i.e. a relevant or sufficient interest in the matter in dispute).

Sufficient interest

A person clearly has standing to sue if she or he has personally been affected by a decision or action by government. e.g. if as a result of a decision by Centrelink a person has an overpayment that he or she is being asked to repay, or if a public servant is dismissed and the decision is made pursuant to an Act, such as the Public Service Act 1999. Where the action in question is more general and does not operate specifically against a particular person, judicial review may be difficult to obtain. In recent years the test for standing has broadened to include persons or organisations who can demonstrate some special interest in the subject matter.

Grounds

Some of the common grounds that can be relied upon to ask for judicial review of a decision are:

• an error of law – for example if the decision-maker has wrongly applied the law or misunderstood the law;
• the decision-maker wrongly taking into account irrelevant considerations. An irrelevant consideration is one which must not be taken into account;
• the decision-maker failing to take into account relevant considerations. A relevant consideration is one which must be taken into account;
• the decision-maker acting with an improper purpose that is beyond the responsibilities of the decision-maker;
• unreasonableness – the decision-maker behaved so unreasonably no reasonable decision-maker could have reached the decision;
• bad faith – the decision was affected by dishonesty, corruption or bribery;
• failure to accord natural justice – a failure to give someone a reasonable opportunity to be heard if the law requires it;
• that the decision was not free of bias or the appearance of bias.