Types of remedies

Contributed by Margaret Jordan and current to 1 September 2005

COMMONWEALTH

Commonwealth government administrative actions or decisions may be tackled in the following ways:

• judicial review by the High Court;

• judicial review by the Federal Court;

• appeal to the Administrative Appeals Tribunal;

• complaint to the Commonwealth Ombudsman;

• access to documents under the Freedomof Information Act; and

• in appropriate cases, complaint to the Human Rights and Equal Opportunity Commission.

STATE

A dispute concerning a Western Australian government body’s administrative action may be dealt with by:

• judicial review by the Supreme Court under common law rules;

• complaint to the Parliamentary Commissioner for Administrative Investigations (Ombudsman);

• access to documents under the Freedom of Information Act; and

• in appropriate cases, appeal to the State Administrative Tribunal.

WHAT IS MEANT BY JUDICIAL REVIEW?

The phrase judicial review refers to a review by a court of an administrative action or decision. With Commonwealth decisions, the court is either the High Court or the Federal Court. In the case of State decisions, the court is the Supreme Court. Review by the Administrative Appeals Tribunal or the Commonwealth or State Ombudsmen are not types of judicial review and could be called administrative review.

A person seeking to obtain judicial review of a decision or action will seek an order from a court that the decision be quashed, that a proceeding be brought to a halt, or that certain action be taken by the administrative official. The courts decide only whether the decision was properly made, not whether the decision itself was a good or bad decision. The court will not normally attempt to direct a government body or official on what course of action should be followed in future. If the legal action succeeds and the decision is quashed it is possible that the same decision will be adopted the second time around, this time following scrupulously the instructions of the court about what is lawful.

Due to the expense and legal problems that surround judicial review, it is advisable to explore the possibility of solving the dispute in another way, such as negotiation, internal department review procedures or administrative appeal (where available), such as to the Administrative Appeals Tribunal.

If an administrative appeal is successful, the appellant will be better off than he or she would have been by seeking judicial review. Unlike the courts, the body appealed to will usually have the power to review the merits of the original decision and replace the original decision with its own.

WHAT IS MEANT BY ADMINISTRATIVE ACTION?

There are some aspects of government conduct which do not fall into the category of administrative action. Apart from administration, the other major function of government bodies or departments is usually described as ‘policy’ or advice. The courts have usually not involved themselves in government advice or government policies. Similarly, the Acts setting up Ombudsmen in Australia limit their powers to complaints about matters of administration. Decisions to raise taxes or conscript troops for war, though both obviously directly impacting on members of the community, are decisions of policy within the government. A government is accountable for these sorts of decisions only at election time. There are systems which are set up to administer these policies however, (for example, a taxation assessment appeals system) and which are subject to the individual right to seek judicial review, administrative appeal or make a complaint to the Ombudsman. The individual may be aggrieved that the administration of a particular government

policy has affected him or her in some way – for example:

• being refused a social security pension; or
• not being able to get an answer to a letter.

The first situation would present a possibility of seeking judicial review or making an administrative appeal, while the second situation would be suitable for a complaint to the Ombudsman. The first situation would be seeking a review of an actual decision made to refuse a social security pension whereas the second situation would be a complaint about the manner in which the department is carrying out its work.

COMMON LAW GROUNDS AND REMEDIES

The common law grounds on which courts will force government administration to stop a process or reverse a decision and look again at a matter have developed in the law over several hundred years. It is not proposed here to set out those grounds because they are legally very complex, and because their practical significance is quite limited, particularly in the area of Commonwealth government decisions. If judicial review using the common law grounds needs to be considered, then expert legal advice will be needed.

In general terms, to obtain an idea of the issues that arise as common law grounds the reader could refer to the later discussion on the grounds under the ADJR Act as they are, in broad terms, similar. The five remedies available for a successful applicant for judicial review are:

• declaration (statement of the legal position);

• injunction (stopping something from being done);

• mandamus (compelling an official to do something);

• prohibition (stopping someone from commencing or continuing something); and

• certiorari (quashing the previous decision).

Declarations and injunctions can be obtained in all situations where judicial review is successful. The remedies of mandamus, prohibition and certiorari are usually referred to as the ‘prerogative writs’ and are only available in certain situations.

The above remedies, as with the common law grounds, are complex and technical and they are not frequently considered in relation to Commonwealth decisions, bearing in mind the availability of the Administrative Appeals Tribunal and the procedures of the ADJR Act.