ADMINISTRATIVE LAW AND JUDICIAL REVIEW
Administrative Law is the body of law that regulates government decision making. Access to reviews of government decisions is a key component of access to justice.
Administrative law offers accountability mechanisms that apply to government decision making about individual matters. Accountability mechanisms include:
- merits review— by government agencies or by tribunals
- investigations — by the Commonwealth Ombudsman and the Office of the Australian Information Commissioner
- internal agency practices — including codes of conduct and alternative dispute resolution
- judicial review— conducted by the federal courts.
Merits Review – Administrative Appeals Tribunal/State Administrative Tribunal
If a government agency has refused the grant of an application you have made or has made an adverse finding, you may be eligible in the first instance to seek a review or appeal of the decision, known as a Merits Review, :
- the Administrative Appeals Tribunal (AAT) if the decision was made by a commonwealth government body such as:
- a. Centrelink
- b. Australian Taxation Office
- c. Department of Immigration and Border Protection
- the State Administrative Tribunal (SAT) if the decision was made by a state government body and relates to matters such as:
- a. local government decisions
- b. town planning decisions
- c. residential park decisions
- d. strata title decisions
- e. land valuation and tax
- f. heritage decisions
A Merits Review is an administrative reconsideration of a case that considers the facts of a case and the law. During a Merits Review at the AAT or SAT, new information and evidence can often still be submitted for the tribunal member’s consideration.
There is a strict time limit from when a decision has been made to when a Merits Review application must be lodged. It is important that you immediately seek legal advice in order to preserve your legal rights.
The Merits Review body has the power to:
- affirm (not change) the primary decision
- set aside (dismiss) the primary decision
- remit (return) a matter to the commonwealth or state government body for reconsideration with specific directions
If you wish to seek a Merits Review of a commonwealth or state government body’s decision, it is best to seek legal advice as soon as you are served with the decision. Unfortunately, a lot of people underestimate the difficulty of the process involved in obtaining a successful Merits Review decision. Our team at FourLion Legal are skilled in this area of law and are here to assist and guide you through the process.
If you have unsuccessfully attempted a Merits Review at the AAT or SAT, you may be able to apply for a Judicial Review of the tribunal’s decision from the appropriate Court.
A Judicial Review is a review by the Court of the lawfulness or the legality of the decision of an administrative body, in this case the AAT or SAT. In other words, whether the decision maker (often a tribunal member) had the power to make that decision and if they made it fairly without error of law.
Grounds of Judicial Review include but are not limited to:
- no jurisdiction – whether the decision maker had the power to make the decision
- error of law – misunderstanding or misapplication of the law
- improper exercise of power
- taking into account irrelevant considerations
- failing to take into account relevant considerations
- improper purpose – where a decision or action whilst on its face may be proper under the law, is designed to achieve a purpose beyond the responsibility of that government body
- unreasonableness – a decision so tainted that no other reasonable decision maker would have reached it
- bad faith – where a decision is affected by corruption, bribery, dishonesty or similar malpractice
- no bias rule – a decision must be free from bias
- natural justice – to be given a reasonable opportunity to be heard; and have a decision maker who is free from actual bias or the appearance of bias
- a fair hearing rule – a person must be given fair and reasonable warning of the hearing, so they have sufficient time to prepare and present their case
Contact us for Administrative and Judicial Review advice
The threshold to be successful in Judicial Review is very high and it is a very technical area of law. Our team of experienced lawyers can provide you with advice on the prospects of success, discuss what options are available to you, guide you through the application process, prepare submissions and represent you at Court appearances. Call us on (08) 9335 6643 to book an appointment with one of our qualified lawyers about your situation .