Complaints about government administration

31 Aug 2016 - 16:02 | Version 7 |

Contributed by MonicaHurley and JessicaTrappel and current to 1 May 2016

Administrative law is the body of law that applies to the administrative actions and decision-making processes of government and its departments. Certain government actions or decisions can be declared unlawful and ineffectual by the courts. In the past, remedies against the actions of governments have been limited and often complex. This situation has, however, been improved by the introduction of the Ombudsman who has the power to inquire into government administration and tribunals which usually have lower fees and informal processes. Some government functions do not fit into the category of administrative action, and so are unable to be reviewed by the courts. Examples are most of the decisions made by government bodies or departments when formulating policy or giving advice.

When seeking a review, the distinction between matters of policy and matters of administration is important. Decisions to raise taxes or to conscript troops for war are examples of policy decisions. A government is made accountable for these decisions at election time and, although they impact directly on members of the community, such decisions cannot be reviewed by the courts. Actions taken and decisions made under systems that a government department establishes to administer these policies, such as a taxation assessment appeal system or a call-up system, can be subject to the individual's right to seek a review by a tribunal or court.

In other words, the right of the individual is not to contest the policy as a whole, except where it breaches some greater obligation, such as Parliament's powers under the Constitution. The right of an individual is to contest the implementation of that policy as it applies to them. To complain, a person should be affected in some way by the administration of government policy. For example, an individual may be affected by a government or parliamentary decision to reduce the rate of a pension (a policy decision), but the individual may not have the right to challenge that decision. On the other hand, an individual could contest a decision made by an official that reduces or cancels that person's pension (an administrative decision). It is sometimes difficult to determine whether a decision is an administrative or policy decision. Legal advice or referral to the relevant Ombudsman might be required to work it out.

Traditionally, the process of reviewing government decisions made use of several common law remedies. These were known as the prerogative remedies of certiorari, prohibition and mandamus as well as the equitable remedies of injunction (preventing or requiring certain action) and declaration (declaring the legal position in relation to a particular issue). These are processes by which an individual affected by a decision could apply to a court for a review of the way the government administered its policy.

The term prerogative used in this way indicates that a superior court, such as the NT Supreme Court, may supervise the process by which the decision of an administrative officer is made. If required, the court can correct that decision, can prevent the decision from being implemented or can direct the officer concerned to make a decision and to take certain matters into account when doing so.

Remedies that are said to be equitable are intended to achieve fairness or justice between the parties involved. Their origin is based on the Courts of Equity or Chancery which evolved over many centuries and had the function of softening the harshness of the King's justice.

These remedies take statutory form in the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). The ADJR Act simplifies the remedies and procedures and, if an individual wants to challenge a decision made under a federal law, the ADJR Act can be a good option. The more complicated common law remedies are, however, still relevant because the ADJR Act does not apply to all administrative actions.

In addition, individual legislation at both Commonwealth and Territory level may provide for review of particular administrative action by a tribunal or body. At the Federal level, for example, the Administrative Appeals Tribunal has jurisdiction to review decisions made by an officer of the Department of Human Services about Centrelink and Child Support payments and most decisions made by the Department of Immigration and Border Protection under the Migration Act 1958 (Cth) to refuse or cancel a visa. In the NT, the NT Civil and Administrative Tribunal is able to review government decisions about licensing, planning and decisions about the payment of compensation to victims of crime.

The structure of government

The bulk of government administration is carried out by government departments, each responsible to a Minister. A document called the Administrative Arrangements Order sets out the name and number of federal government departments. It also lists the Minister responsible for each department, the matters dealt with by each department and the laws administered by each department. In all Australian jurisdictions, Ministers are responsible to Parliament.

In addition to government departments, legislation and government decisions create commissions, boards and other statutory agencies or companies to give effect to government policy. There are a number of organisations at a national level that oversee banking, insurance, telecommunications, accountants, the privacy of personal information held by Commonwealth agencies and some private sector entities, health services, aged care and the postal industry.

Local councils are often incorrectly called the third tier of government. The existence of local councils is dependent on NT laws and consequently their conduct is controlled to a considerable degree by NT legislation or the NT Government, through the Administrator and the Minister for Local Government. The activities of local government are, like those of any other NT Government body, subject to administrative law.

Delegation of authority

Although the decision-making powers or functions available to Ministers and chief executive officers of government departments are usually set out in the relevant laws, in practice, many functions are performed by departmental officers. It is not possible for a Minister to decide every matter themselves and, as a result, they often delegate statutory and administrative functions to other officers within the department or authorise them to take specific actions on the Minister's behalf. The law usually sets out the Minister's power to delegate decision-making powers. The law also sets out that certain decisions can only be made by a Minister or some other official. Usually, discretionary decisions cannot be delegated and must be made personally by the named person. For example, section 417 of the Migration Act 1958 (Cth) says that the Minister, acting personally, may substitute a decision made by the Administrative Appeals Tribunal for a decision more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

Each government department has general instructions and guidelines which are usually set out in departmental manuals and contain detailed rules about how departmental officers should interpret different laws. Sometimes, a Minister may also have a specific power to issue statutory directions which departmental officers must comply with. Departmental manuals are not always available to the general public, although freedom of information legislation now gives the public access to a wide range of these materials (see Freedom of information).

Who should you complaint to?

If a person is unhappy with an administrative decision, the first thing they should do is determine whether the decision has been made by a Federal or an NT Government department. For example, the Family Tax Benefit is administered federally by Centrelink on behalf of the Department of Human Services. Territory Housing, on the other hand, is an NT Government agency that makes decisions about public housing in the NT. To determine which body is responsible for what, you can contact the NT or Commonwealth Ombudsman (see Contact points).

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