Administrative decisions that are made by government departments, agencies or officials pursuant to legislation are generally open to review. If the decision directly affects your rights, benefits or obligations, mechanisms exist for you to challenge it, although requirements and exceptions apply.
Administrative law is the area of law which regulates government decision making. It exists to prevent the abuse of power by decision-makers and to ensure there is transparency and consistency in decisions made by government bodies affecting individuals or legal entities (where they exist as a legal person).
Administrative decisions made by government bodies can take many forms, including decisions made by:
- A regulator to refuse, suspend or revoke a licence or accreditation
- ASIC regarding business names and registrations
- The ATO in relation to a tax assessment, private ruling or penalty
This article discusses options for challenging an administrative decision, including the importance of time limits, understanding the reasons for the decision, potential internal review mechanisms, as well as options for external reviews (including differences between a merits review and a judicial review).
Do You Have Standing?
To challenge an administrative decision, you must have standing. Broadly speaking, you must be sufficiently affected by the decision to be entitled to seek review. The threshold for standing differs depending on the type of review you are seeking. In most cases however, if a decision directly affects you, standing will not be a barrier.
Act Fast!
Time limits for seeking a review often apply and are strictly enforced, with limited scope for extension. If you receive a decision you may wish to challenge, it is essential to act fast and to seek legal advice to ensure any applications are made within relevant timeframes.
Understand Why the Decision Was Made
It is important to understand who made the decision, under what authority and the relevant Act or regulation under which it was made.
Some statutes require decision-makers to give reasons for their decisions. Even where there is no statutory right to reasons, it may be open to you to request them (and usually worthwhile to do so). The reasons enable you and your legal representation (if applicable) to evaluate whether an error was made, whether proper procedures were followed and whether there may be grounds for a challenge.
A Freedom of Information request may help with obtaining documents held by the relevant body. This is particularly useful where the reasons provided are limited or you suspect they may not disclose all relevant facts or considerations.
Is An Internal Review Available?
In some cases, you have the option to seek an internal review from the original decision maker. For other decisions, you cannot apply to the tribunal for an external review until you have received the internal review decision.
The primary reason for seeking an internal review is that the original decision making body may reconsider the decision that was made and make a decision that is more favourable to you. An internal review may also provide you with a clearer picture of the decision-maker’s reasoning. This can help you to build a stronger case for an external review if needed.
That said, there are timing risks to be aware of. The time limits for an external review may continue to run while an internal review is on foot (unless legislation provides otherwise). Be careful not to lose your external review rights while engaging in an internal review.
Can You Lodge a Complaint with the Relevant Ombudsman?
Depending on the nature of the decision, there may be an option to lodge a complaint with the appropriate Ombudsman. The Commonwealth Ombudsman handles complaints about Australian Government agencies, the State/Territory Ombudsman deals with issues relating to state-level agencies, and some industry specific ombudsman may deal with some state-owned businesses that fall within the relevant scheme.
Merits Review and Judicial Review
An administrative decision may be reviewed on its merits, usually by a tribunal, or be subject to a judicial review by the courts.
A merits review involves a reconsideration of the decision on its merits, namely whether it was a “correct or preferable” decision on the facts. A judicial review does not examine the merits of the decision, but considers whether the decision was lawfully made.
While a merits review and a judicial review are distinct options, they are not mutually exclusive unless legislation specifically provides otherwise. Where both avenues are available, legal advice can help inform the appropriate strategy.
Merits Review: Was the Original Decision “Correct or Preferable”?
In conducting a merits review, the reviewing body will stand in the shoes of the original decision-maker and make a fresh decision based on all available evidence. For example, under Section 54 of the Administrative Review Tribunal Act 2024 (‘ART Act’), the Tribunal may exercise all the powers and discretion of the original decision-maker. The key point being that for a merits review, the reviewing authority may re-make a decision as if it were the original decision-maker even in the absence of a legal error.
The question to be considered in a merits review is whether the previous decision was “correct or preferable” on all available material. This approach was endorsed by the Federal Court in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 and is also reflected in relevant legislation governing administrative reviews (for example, see Section 56(1) of the ART Act.)
There is no general right to a merit review by a tribunal. A merits review is only available for a specific range of administrative decisions, and only where expressly provided for by legislation. Before initiating the process, consider whether the tribunal has the power to award the desired outcome, as tribunals are limited to the remedies they are authorised to grant by law.
The Administrative Review Tribunal is Australia’s federal body for reviewing administrative decisions made by Australian Government agencies, departments and ministers. It replaced the Administrative Appeals Tribunal on 14 October 2024, and its establishment is part of a significant reform to Australia’s system of administrative review. There are also state and territory based review tribunals.
Judicial Review: Was the Decision Lawful?
A judicial review is the legal process whereby Courts examine the lawfulness of decisions made by government departments, agencies or officials while exercising public functions. The Courts can only consider whether the decision was made legally and not whether it was the ‘right’ decision on the facts. That is to say, the Courts are not able to make an alternative decision, or substitute its own decision making.
To seek a judicial review, grounds must be established.
Section 5(1) of the Administrative Decisions (Judicial Review) Act 1977 (‘Act’) sets out the grounds for a judicial review of a decision. Of course, the decision in question must be one to which the Act applies (although the decisions that are covered are broad).
Broadly speaking, the grounds cover:
- Jurisdictional error: whether the decision-maker acted outside the power conferred by legislation
- Procedural fairness: whether the process failed to afford a fair hearing without bias
- Errors of law: whether there was a misinterpretation or misapplication of the Law
- Improper exercise of power: which includes taking into account irrelevant considerations, failing to consider relevant ones, acting for an improper purpose, or exercising a discretion in bad faith.
- Unreasonableness: whether the decision was “so unreasonable that no reasonable authority could ever have come to it” (this was traditionally the benchmark for unreasonableness as established in Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223). More recently, Courts have indicated that unreasonableness may also be established where a decision lacked an “evident and intelligible justification” (see for example, Minister for Immigration and Citizenship v Li [2013] HCA 18.), suggesting that the overwhelming absence or inadequacy of reasons may give rise to legal consequences.
The Act also provides for review of conduct related to the making of a decision (section 6) and a review of the failure to make a decision where a duty to make one exists (section 7).
While the grounds for Section 6 are similar to those in Section 5, Section 6 addresses applications for the review of conduct related to the making of decisions, and could include decisions that are being made and decisions that are yet to be made (whereas under Section 5 the decision must have been finalised).
Section 7 deals specifically with failures to make decisions where there is a duty to do so. This ensures that administrative accountability is maintained not only through active decision-making but also deters officials from engaging in unreasonable delays when making decisions. Section 16 of the Act sets out the remedies which the Court may award as the result of a judicial review.
Each case must be considered including all of the circumstances in question. There are legal and strategic factors which may play a role in determining whether a merits or judicial review is appropriate. However, it can be a powerful step in seeking to bring about a desired outcome if used in the correct way.
In summary:
- Administrative decisions made by government departments, agencies or officials under legislation are generally open to review.
- Act promptly and ensure you are aware of critical deadlines.
- Gather relevant information (seek reasons for the decision if not provided and consider applying for a FOI request).
- Understand who made the decision and under what authority. Examine whether proper processes were followed.
- An internal review may be the first point of call (if available) and sometimes is required before you can request for an external review.
- If the decision falls within the remit of a relevant Ombudsman, you may wish to lodge a complaint with them.
- Merits review may be available where a decision is not “correct or preferable” on the facts. You must have standing and the decision must fall within the class of reviewable decision defined in legislation.
- Judicial review may be available where a decision was not made legally. Standing must be established and generally must fall within at least one of the grounds of review outlined in Section 5(1) of the Administrative Decisions (Judicial Review) Act 1977.
- Ensure the remedies available to the relevant tribunal or Court align with the outcome you are seeking.
This publication contains general information only and does not constitute legal advice. You should obtain professional advice tailored to your circumstances before acting on any information contained in this article.