Outcomes available when challenging a government decision

Contributed by JudyMcLean and current to 27 July 2018

Independent decision-making

The AAT has demonstrated that it will live up to its charter of independent decision-making. It will look at each case afresh and will act without any assumption that the original decision was correct.

No automatic stay fof the decision

The application for review does not operate as an automatic stay (or hold) on the implementation of the decision being reviewed, but the person affected may apply to the AAT for such a stay. This application should be made on the appropriate form.

Preliminary conferences

The Tribunal will usually list at least one preliminary conference to afford the parties the opportunity of discussing the decision under review and any further information available which may be taken into account. If there is agreement, the Tribunal may make a decision in the terms of the agreement and will not proceed to a hearing. The usual procedures and timetable are set out in a practice direction which is provided to the applicant when the application is lodged.

When the matter cannot be resolved prior to a hearing, then the parties will be given at least 21 days’ notice of the hearing date. The Tribunal has the power to proceed in the absence of a party who has had reasonable notice of the hearing date. The Tribunal is under a duty to act as quickly as possible and with as little formality as possible.

About 75% of all matters are resolved prior to going to a hearing. The Section 37 documents (or T documents) are normally received into evidence, and supplemented by evidence from witnesses called by the parties, including evidence by telephone or video conference where appropriate.

Where required, an interpreter will be provided at the Tribunal’s expense for conferences and hearings.

Remedies

The AAT has the power to:

• affirm the decision under review;
• vary the decision under review; or
• set aside the decision under review and make a new decision or compel the agency to make a new decision in accordance with directions given by the Tribunal.

The AAT is under an obligation to give reasons for its decisions and findings of fact. If requested to do so it must reduce those reasons to writing. Each party to the proceedings is entitled to a copy of the reasons.

Right of appeal

There is a right of appeal from the AAT to the Federal Court of Australia which is restricted to:

• a question of law; or
• a decision by the AAT refusing or allowing a person to be a party to a proceeding on the ground that the person’s interests are not affected by the decision under review.

Orders that can be made by the Federal Court

The Federal Court has flexible powers as to the orders it can make. It can make orders:

• quashing or setting aside the decision under review, referring the matter back to the decision-maker with directions, declaring the rights of the parties; or
• directing any of the parties to do or refrain from doing whatever the Court considers necessary to do justice between the parties; however, the Court cannot simply step into the shoes of the decision-maker and remake the decision as the court sees fit, unless there is only one decision which can lawfully be made.

Commonwealth Ombudsman

Any type of complaint about Commonwealth government administration can be brought to the attention of the Ombudsman (Ombudsman Act 1976 (Cth)). The Commonwealth Ombudsman maintains a website at www.comb.gov.au which displays useful information including relevant legislation.

What may be investigated?

The Commonwealth Ombudsman may investigate action relating to a matter of administration involving a department or prescribed authority, either on a complaint from any person or on the Ombudsman's own initiative. The term a matter of administration is not defined, but is generally regarded as having a very broad scope, so as to encompass virtually all actions that are not specially excluded. All Commonwealth departments, and the great majority of Commonwealth statutory authorities and similar bodies are within the Ombudsman's jurisdiction. Special schemes apply for the Australian Federal Police and for Defence Force employment matters.

What cannot be investigated?

Some actions are expressly excluded from the Ombudsman’s jurisdiction, the main ones being:

• actions of Ministers (but recommendations to Ministers are not excluded);
• actions of judges and magistrates; and
• employment matters (but there is a special jurisdiction for Defence Force personnel).

Who can complain?

Anyone – individuals, companies, organisations - either in their own right or through an agent or representative, such as a welfare agency, relative, solicitor or other person.

The Ombudsman can refuse to investigate

The Commonwealth Ombudsman has given various discretions not to investigate a complaint or to discontinue an investigation. These discretions can be invoked where:

• there has been an undue delay (12 months or more) in complaining;
• the complaint is frivolous or vexatious or not made in good faith;
• the complainant does not have a sufficient interest in the subject matter;
• an investigation is not warranted having regard to all the circumstances of the case;
• the agency concerned has not been given a reasonable opportunity to resolve the matter directly with the complainant; or
• alternative review or appeal processes are available and have been or ought to have been used.

When a complaint should be made

Persons are normally expected to try and resolve their differences through dealing directly with the agency concerned before approaching the Ombudsman. Formal review and appeal processes, some within the agency concerned and some involving external tribunals, particularly the AAT, exist in many subject areas, and it will often be appropriate to use such processes rather than complain to the Ombudsman.

How to complain

Complaints can be lodged in writing, by telephone or at a personal interview. There is no fee or charge. The Ombudsman’s office will try to assist with advice where persons are uncertain as to the right means for having the decision of a Commonwealth agency reviewed. Persons detained in custody are entitled to communicate confidentially with the Ombudsman.

How investigations are conducted

Investigations are conducted in private, which means that the Ombudsman generally will not tell anyone about the complaint other than the department or authority concerned.

The Ombudsman is entitled to carry out the investigation in such manner as she or he thinks fit. The agency will usually be asked to comment on the complaint and explain its actions. In turn, the Ombudsman will tell the complainant what the agency has said and what she or he thinks of the explanation. The complainant may be given an opportunity to provide more information or raise further matters.

At various stages of the investigation, the Ombudsman must inform the head of the agency and the responsible Minister of the actions taken.

How the Ombudsman obtains information

The Ombudsman is empowered to require information and documents to be produced, and may also summons people to appear before him or her and give evidence. Mostly, there is no need to resort to these formal powers.

Generally, the Ombudsman will only disclose information acquired during an investigation for the purposes of that investigation, although she or he is empowered to make public statements where there are special reasons for doing so.

Whatever the result of a complaint, the complainant is entitled to receive an explanation of the outcome from the Ombudsman.

How the Ombudsman endorses the findings

The Ombudsman cannot overturn an agency’s decision; she or he can only recommend that remedial action is taken. Such recommendations are usually accepted, however, and the great majority of complaints are resolved without resort to the formal recommendatory and reporting powers. Where a formal recommendation is made and not acted upon, the Ombudsman may report to the Prime Minister and to Parliament.

In deciding whether to make a recommendation, the Ombudsman will consider whether an agency’s action is defective because of any of the following reasons:

• it is against the law;
• it is unreasonable, unjust or oppressive;
• it is in accordance with a law or practice, but that law or practice is itself unreasonable;
• it is improperly discriminatory;
• it is based on a mistake of law or fact, it is based on irrelevant factors (or did not take into account relevant factors); or
• it is otherwise in all of the circumstances wrong.

The Ombudsman can make whatever recommendations she or he thinks may be necessary to remedy the particular complaint. Such recommendations might include the following:

• that the agency reconsider or change its actions or decision;
• that a law, rule or procedure used by the agency should be changed; or
• any other action the Ombudsman thinks right in the circumstances (for example, compensation for any financial loss, or an apology).

Defence Force Ombudsman

The Commonwealth Ombudsman also holds office as Defence Force Ombudsman (DFO) and investigates complaints about matters relating to or arising from a person’s service in the Defence Forces.

Current Defence Force members may complain to the DFO about almost any action taken during their service: assessments, promotions and demotions, postings, discharges, housing allowances etc. The main exceptions are complaints relating to discipline or to the grant of honours and awards to individuals). The DFO cannot, unless there are special reasons, investigate a complaint from a serving member until that member has first exhausted the internal redress or grievance procedures established under Defence Force Regulations.

Both current and former members of the Defence Force, their spouses and dependants can complain to the DFO about actions of Commonwealth agencies in relation to such things as repatriation benefits, defence service home loans, superannuation, compensation and service or campaign medals.

Generally, the procedures outlined earlier also apply to complaints to the DFO.

WA State Ombudsman

The WA Ombudsman (Parliamentary Commissioner for Administrative Investigations) has the power to investigate administrative actions taken by or on behalf of State government departments and other authorities.

Administrative action is defined in the Parliamentary Commissioner Act 1971 (WA) to mean any action relating to a matter of administration and includes:

• a decision and an act;
• the refusal or failure to make a decision or to perform an act;
• the formulation of a proposal or intention; and
• the making of a recommendation including recommendations made to a minister.

The Ombudsman has no jurisdiction in relation to government policy or ministerial discretion.

Public Statutory Bodies

The Ombudsman also has the power to investigate administrative actions taken by or on behalf of public statutory bodies. To determine whether or not a particular body is within the Ombudsman’s jurisdiction, a person can contact the office of the Parliamentary Commissioner for Administrative Investigations (Ombudsman).

What the WA Ombudsman cannot investigate

The Ombudsman does not have the power to investigate any administrative action taken by:

• a court of law (complaints in this area are generally referred to the Attorney General);
• a person acting as legal adviser to the Crown or as counsel for the Crown in any proceedings;
• a person in his or her capacity as a trustee under the Trustees Act 1962 (WA); or
• the Auditor General.

Also excluded from investigation are boards, tribunals, commissions, etc., presided over by a judge, magistrate or lawyer.

The schedule to the Act also provides that the Ombudsman has no jurisdiction in respect of officers of the establishment of the Governor.

What is an administrative action?

The definition of administrative action is not exhaustive. The meaning of the words is unclear and people with complaints should not hesitate to put them before the Ombudsman and allow him or her to determine if there is an administrative action.

The Act provides that the Ombudsman shall not conduct an investigation where the aggrieved person has a right of appeal to a tribunal or has a remedy by way of proceedings in a court of law, unless the Ombudsman considers that it would not be reasonable to expect the aggrieved person to resort to that right or remedy, or that the matter merits investigation to avoid injustice.

A complainant's lack of funds is not necessarily accepted by the Ombudsman as a reasonable justification for not resorting to a court or tribunal. On several occasions it has been decided, however, that it would not be reasonable to expect an aggrieved person to resort to litigation where the costs involved would be out of all proportion to the relief claimed, or whether the law's inevitable delays would necessarily result in a substantial injustice continuing for a period longer than it otherwise might.

The Ombudsman’s jurisdiction is further limited in that he or she may not investigate any matter which relates to terms and conditions of employment unless he or she considers that the matter merits investigation in order to avoid injustice.

Who can complain?

The Ombudsman may conduct an investigation either of his or her own motion or as a consequence of a complaint made by a person or by a body of persons, whether incorporated or not.

The WA Ombudsman maintains a useful website – www.ombudsman.wa.gov.au – providing information about how to make a complaint, as well as access to public reports on enquiries undertaken by the Ombudsman.

How does a person complain?

All complaints must be in writing. If a complainant is unable to put their complaint in writing, an appointment can be made to discuss the complaint with an investigator who may prepare the written complaint for the complainant to sign.

When solicitors or others send in complaints on behalf of complainants the client is usually asked to sign an acknowledgment of the accuracy of the facts forming the basis of the complaint and thereafter the Ombudsman often deals directly with the client.

Where the original complaint lacks detail the Ombudsman seeks further relevant particulars from the complainant. A copy of all correspondence is then forwarded to the Minister and the principal officer of the relevant authority.

An investigation may be conducted by the Ombudsman formally under oath or informally but most investigations are informal.

Can the Ombudsman refuse to investigate?

The complaint must justify an investigation and this will not be the case where it is:

• stale (more than 12 months have lapsed since the incident complained of and a satisfactory account as to the delay is not given);
• trivial;
• vexatious; or
• made by a person who is not affected by the administrative action which is the subject of the complaint; this does not apply however where the complainant is a member of parliament acting on behalf of an aggrieved person, or is a person who is considered suitable to represent the interests of an aggrieved person who has died or is unable to represent themselves.

How are investigations conducted?

Where the Ombudsman considers that the complaint justifies investigation a copy of the complaint is sent to the relevant Minister and the Chief Executive Officer of the relevant department who are asked to comment. This may resolve the matter, but where it does not, an investigation is made by the Ombudsman.

After the complaint has been investigated, the Ombudsman makes a decision as to whether or not it is justified. Where the complaint is prima facie justified the relevant department is given a chance to comment upon the Ombudsman’s decision. If there is no comment, the Ombudsman’s preliminary report becomes a final report and is sent to both parties.

Where, as a result of an investigation, the Ombudsman is of the opinion that the administrative action:

• appears to have been taken contrary to the law;
• was unreasonable, unjust, oppressive or improperly discriminatory;
• was in accordance with a rule of law, an enactment or a practice that is or may be unreasonable, unjust, oppressive or improperly discriminatory;
• was taken in the exercise of a power or discretion for an improper purpose or on irrelevant grounds;
• should have been accompanied with reasons;
• was based wholly or partly on a mistake of law or fact; or
• was wrong then he or she shall submit this opinion, together with reasons, to the Chief Executive Officer of the appropriate agency with whatever recommendations he or she thinks fit.

Such recommendations may be:

• that the matter should be referred to the appropriate agency for further consideration;
• that action should be taken to rectify or mitigate or alter the effects of the administrative action;
• that certain practices should be varied;
• that certain laws should be reconsidered;
• that reasons should be given for the action; or
• that any other steps should be taken.

It is left up to the relevant agency to comply with the Ombudsman’s recommendations and there is no obligation to do so.

Where the Ombudsman makes recommendations, however, the CEO of the authority may be requested to notify him or her within a specified time of the steps that have been or are proposed to be taken to give effect to the recommendations or, if no steps have been or are proposed to be taken, the reasons why.

Where appropriate steps have not been taken within a reasonable time of the Ombudsman’s recommendations he or she may refer the matter to the Governor in Council and to both Houses of Parliament.

Where, in the course of an investigation, a question arises as to whether the Ombudsman has jurisdiction to conduct the investigation, the Ombudsman or the party subject to the investigation may apply to the Supreme Court for a determination of that question.

Letters written by persons in prison or by patients in mental institutions addressed to the Ombudsman must immediately be forwarded unopened to the addressee by the person in charge of the institution.

The Ombudsman may not make any comment in any report adverse to any person unless that person has been given an opportunity of being heard and his or her defence is fairly set out in the report.

Obtaining access to documents

A request must be in writing and give sufficient detail to identify the document sought. The agency receiving the request, must deal with that request within 45 days, although extensions of time can be permitted.

Review of denials of access

If access to documents is refused, the individual concerned has a right to review that decision by lodging an application within 30 days of being given notice of the refusal. The application will be considered by a person other than the person who made the decision to be reviewed and will not be in a position subordinate to the original decision-maker. If the agency fails to give a decision on the application to review within 15 days, then the agency is deemed to have affirmed the previous decision to refuse access to the documents.

An applicant wishing to pursue the matter further may complain in writing to the Information Commissioner concerning the refusal of access to documents. The Supreme Court may determine a question of law which arises out of the decision of the Information Commissioner.

The objects of the Freedom of Information Act 1992 are to:

• enable the public to participate more effectively in governing the State; and
• make the persons and bodies that are responsible for the State and local government to be more accountable to the public.

This is said to be achieved by:

• creating a general right of access to State and local government documents;
• providing means to ensure that personal information held by State and local governments is accurate, complete, up to date and not misleading; and
• requiring that certain documents concerning State and local government operations be made available to the public.

Exemption from access

Despite the stated objectives, a wide range of documents are exempted from production under the Act, including:

• documents relating to Cabinet and Executive Council;
• documents relating to inter-governmental relations;
• documents containing personal information relating to a person other than the applicant;
• documents privileged from production on the grounds of Legal Professional Privilege; documents exempted by the Equal Opportunity Act 1984 (WA), the Legal Aid Commission Act 1976 (WA) or the Parliamentary Commissioner Act 1971 (WA); documents whose disclosure:
  • would reveal trade secrets of a person;
  • could reasonably be expected to impair the effectiveness of any lawful method or procedure for preventing, detecting, investigating, or dealing with any contravention or possible contravention of the law;
  • would reveal any opinion, advice or recommendation or consultation or deliberation in the course of or for the purpose of the deliberative processes of the Government, a Minister or an agency and the disclosure of which would be contrary to the public interest;
  • would be a breach of confidence;
  • could reasonably be expected either to have an adverse effect on the management of the economy of the State or result in an unfair benefit or detriment due to a premature disclosure of information concerning a proposed action of the government for the purposes of managing the economy;
  • could reasonably be expected to impair the effectiveness of any method or procedure for the conduct of tests, examination or audits by any agency;
  • would be in contempt of court;
  • would reveal information in relation to the adoption of a child or participation of a person in artificial fertilisation procedure; and
  • would reveal information about gold or other precious metals held by Gold Corporation.

Additionally, a wide range of government agencies are fully exempt from the provisions of the Act, including:

• both houses of parliament and parliamentary committees;
• the Auditor General;
• the Director of Public Prosecutions;
• the Information Commissioner;
• the Parliamentary Commissioner for Administrative Investigations;
• the Parole Board;
• the R &I Bank;
• the State Government Insurance Corporation;
• any Royal Commission;
• the Bureau of Criminal Intelligence, Protective Services Unit and Internal Affairs Unit of the Police Force of WA; and
• the Internal Investigations Unit of the Ministry of Justice.

Applications to change personal information

A person has the right to apply to a state agency for amendment of personal information about the person contained in a document of the agency if the information is inaccurate, incomplete, and out of date or misleading. The application must be in writing, sufficiently identify the document concerned, and give detail of the matters which are believed to be incorrect, give the person’s reasons for holding that belief and details of the amendment that is sought. If the agency refuses to amend the information, then a review of that decision can be obtained as above and a complaint made to the Information Commissioner if necessary.

Further information

The Commissioner for Information maintains a website containing useful information concerning how to obtain information sought and the relevant legislation and regulations at www.foi.wa.gov.au.