Types of review available for government decisions

Contributed by JudyMcLean and current to 27 July 2018

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 Freedom of Information Act; and
• in appropriate cases, complaint to the Australian Human Rights 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.

Common law grounds and remedies

In general terms, to obtain an idea of the issues that arise as common law grounds for judicial review, 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.

What is meant by judicial review?

If the decision or action complained of is by the Commonwealth, it may be possible to appeal to the Administrative Appeals Tribunal, or to the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”). The decision on which procedure to use and the ultimate chances of success are greatly enhanced by easy access to most documents held by the decision-maker, which is possible under the Freedom of Information Act 1982 (Cth).

In Western Australia, there is no statutory right to judicial review. A person aggrieved by a State government decision is limited to the complex (and expensive) system of common law judicial review. The State Administrative Tribunal (SAT), which commenced in January 2005, is an amalgamation of nearly 50 previously existing industry and public sector boards and tribunals. The SAT has a review function in relation to a range of administrative decisions previously determined by the courts, Government Ministers or public officials, as well as vocational licensing bodies. It also has original jurisdiction in disciplinary proceedings and civil, commercial or personal matters.

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 is quashed, that a proceeding is brought to a halt, or that certain action is 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. Alternatively, decisions to raise taxes or conscript troops for war, though both obviously directly impacting on members of the community, are decisions of government policy. A government is accountable for these sorts of decisions only at election time. There are systems which are set up to administer and review other government decisions, for example, a taxation assessment appeals system. The review of these decisions is subject to the individual right to seek judicial review, administrative appeal or make a complaint to the Ombudsman. An individual may be aggrieved where 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.

In the first situation, if refused a social security pension, an individual may seek judicial review or lodge an administrative appeal. In the second situation, where an answer to a letter is not received, a complaint to the Ombudsman would be suitable. The first situation is a review of an actual decision whereas the second situation is a complaint about the way in which a government department is carrying out its work.

Administrative review in WA

refers to the process of seeking to have a ruling made by a government body, organisation, official or representative, reconsidered. Only decisions by government departments and government-related authorities are subject to administrative review, as well as some non-government authorities, provided they are exercising a public statutory power – in other words, there is a law which allows them to make such administrative decisions. Decisions by private individuals or corporations are not able to be reviewed.

Only decisions which are ‘administrative’ in nature may be reviewed. Examples of decisions which are not ‘administrative’ include:

• criminal cases- whether to prosecute in a criminal case
• legislative matters – the making of laws
• employment matters – whether to hire an employee
• contractual decisions – whether to enter into a contract.

Some examples of decisions which are administrative in nature and therefore subject to review include:

• ASIC’s declaration that an applicant is not ‘fit and proper’ for the purposes of obtaining a financial services licence
• a minister’s decision to refuse a visa
• Centrelink’s decision to stop paying benefits
• a council’s decision to order the destruction of a dangerous dog
• a licencing authority’s decision to refuse a licence
• a council’s decision to purchase land through compulsory acquisition.

An administrative review in WA

decision may only be reviewed if the legislation on which it is based allows it. These laws are called ‘enabling' laws because they grant the tribunal in question the jurisdiction to act.

When an applicant brings a matter before a tribunal, it must state the section of the act or regulation which allows the tribunal to review the decision. If the act on which the decision is based does not specifically state that administrative review to that tribunal is allowed, then the tribunal has no power to act.

In summary:

There are four main avenues for administrative review in Western Australia:

• the State Administrative Tribunal (Western Australia) (SAT) – reviews state government-related administrative decisions
• the Commonwealth Administrative Appeals Tribunal (AAT) – reviews federal government related administrative decisions (and some state decisions, where the legislation specifically provides)
• the Law Courts – known as judicial review – where a judge reviews the administrative decision
• the Ombudsman of Western Australia – primarily reviews complaints made about administrative processes of state-government related entities, the Western Australia Police, local governments and public universities. It is an avenue of last resort, as the Ombudsman will only review decisions that are not able to be reviewed by tribunals or courts.