Administrative law attempts to:
- support fair, consistent, lawful and impartial decision making;
- overturn violations or abuses of administrative powers;
- make officials responsible and accountable for their decisions;
- help protect the interests and rights of the public; and
- provide a right of review for affected parties.
Australia’s system of government relies on the principle that no single person in a government department or agency should be able to make a decision that affects a person’s rights without the decision being reviewable. Administrative law helps provide a pathway to overturn a government decision that does not fall in your favour.
Grounds of judicial review of administrative decisions
The grounds of judicial review of administrative decisions fall into three categories:
- illegality;
- irrationality; and
- procedural impropriety.
If a decision maker has demonstrated any of the above in making their decision, there are potential grounds for judicial review.
Illegality
In the case of Council of Civil Service Unions v Minister for the Civil Service (1985) AC 374 at 410, Lord Diplock emphasised that “the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it”. In essence, this refers to the concept that a decision maker must not act ultra vires – in other words, outside of the powers vested in them by the government.
If a decision maker fails to follow the law, violates legal principles or policies that apply to the decision maker’s specific role or governing body, or otherwise makes a decision that they do not have the power or authority to make, the decision may be deemed “illegal” and will be subject to judicial review.
Illegality may also extend to other circumstances, including (but not limited to) situations where a decision maker fails to take relevant considerations into account in making a decision, blindly follows policy guidelines without exercising their discretion in considering the facts of a particular matter, or otherwise takes into account factors that should not apply to a specific situation or circumstance.
Irrationality
Irrationality refers to decisions that are deemed particularly irrational or unreasonable. This generally involves decisions that are considered so blatantly unreasonable so as to constitute irrationality, absurdity or sheer intransigence on part of the person making the decision.
In the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, Lord Greene stated that the courts may interfere in situations where a decision maker has come to a “decision on a competent matter that is so unreasonable that no reasonable authority could ever have come to it”.
In Council of Civil Service Unions v Minister for the Civil Service at 410, Lord Diplock elaborated on this statement by stating that the grounds for irrationality would apply in circumstances where “a decision […] is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the questions to be decided could have arrived at it”.
It is generally difficult to meet the threshold for establishing irrationality. Accordingly, irrationality is most often argued in combination with other grounds for judicial review to increase the applicant’s chances of bringing a successful review claim.
Procedural impropriety
The grounds of procedural impropriety rest upon the underlying principles of natural justice. In essence, procedural impropriety mainly involves two of the most important elements of procedural fairness (and what is commonly referred to as the “two pillars” of natural justice): “the fair hearing rule” and “the rule against bias”.
The fair hearing rule concerns the requirement for decision makers to provide the opportunity for a person whose interests or rights may be affected by a decision to be heard before the decision is made.
In the case of Kioa v West (1985) 159 CLR 550 at 563, Gibbs J stated that the “fundamental rule is that a statutory authority having power to affect the rights of a person is bound to hear him before exercising the power”.
The rule against bias encapsulates the concept that a decision maker is required to approach a situation in which they are required to make a decision with an open and unbiased mind, meaning they must be free of any elements or prejudice or prejudgment.
Ways to challenge a decision
Merits review (issues regarding discretion)
While Australia has a wide variety of mechanisms in place to promote uniformity in decisions made by government decision makers, the reality is that different decision makers may still provide different outcomes. If a particular government decision maker has made a decision that you do not agree with, it could be advantageous to have another decision maker reconsider the facts and merits of your case and re-evaluate applicable law and policy to enable then to re-determine the matter.
Depending on the type of decision made, a merits review might be undertaken internally or externally. Internal reviews are a quick and simple method of having a more senior decision maker within the same department or agency reconsider a matter, whereas external merits reviews involves an independent body reviewing the matter afresh.
The Queensland Civil and Administrative Tribunal (QCAT) and the Australian Appeals Tribunal (AAT) are two common examples of independent bodies that regularly conduct external merits reviews.
QCAT and the AAT only have jurisdiction to review an administrative decision if legislation specifically provides that they have jurisdiction to hear the matter; not all decisions can be reviewed externally.
Most matters commonly require the applicant to file an applicant for review within 28 days of the decision being made, and a lawyer should assist you with making the application to maximise your changes of having the initial decision varied, set aside or otherwise amended.
A merits review will usually result in one of the following outcomes:
- the decision is confirmed;
- the decision is varied;
- a new decision is given; or
- the original decision is set aside and the original decision maker will reconsider the matter (usually with directions)
Judicial review (issues regarding the law)
Decision makers in government are required to work pursuant to legislation. In exercising their discretionary power, decision makers have a statutory duty to take into account all relevant legislation, regulations, requirements and general principles of administrative law in considering and weighing the merits of a particular matter: R v Hunt; Ex parte Sean Investments Pty Ltd (1979) 180 CLR 322.
The fundamental purpose of judicial review is to ensure that powers are exercised for the purpose that they were created for and in the way they were intended to be exercised. In the case of Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-6:
“The essential warrant for judicial intervention is the declaration and enforcing of the law affecting the extent and exercise of power: that is the characteristic duty of the judicature as the third branch of government. In Victoria v Commonwealth and Hayden, Gibbs J said that the duty of the courts extends to pronouncing on the validity of executive action when challenged on the ground that it exceeds constitutional power, but the duty extends to judicial review of administrative action alleged to go beyond the power conferred by statute or by the prerogative or alleged to be otherwise in disconformity with the law. The duty and the jurisdiction of the courts are expressed in the memorable words of Marshall J in Marbury v Madison:
‘It is, emphatically, the province and duty of the judicial department to say what the law is’.”
If a decision maker interprets the law incorrectly (e.g. they make a decision that they do not have the power to make or they fail to do something they are legally required to do in relation to a specific decision), the decision will generally be open for judicial review.
Judicial review is commonly considered an appropriate next step in circumstances where a merits review has already been conducted. The courts largely have discretion to dismiss an application for judicial review where they consider such measures inappropriate in the circumstances.
If an applicant has not sufficiently explored merits review as a viable alternative for having their decision reviewed, an application for judicial review may be considered premature. As a more senior decision maker may often be inclined to deviate from a decision made by an original decision maker, merits reviews are largely considered the appropriate initial step to having a decision reviewed.
Where the applicant is not content with the results of the merits review, judicial review commonly follows the merits review as the next appropriate step.
Judicial review traditionally encompasses numerous common law principles and legal procedures that have been developed by courts over centuries in their endeavour to regulate and monitor the actions of public officers.
This branch of administrative law is limited to considering the “legality” as opposed to the “merits” of the actions of a government authority: Hamblin v Duffy (1981) 34 ALR 333. Applications must be filed within 28 days of a written decision being provided to the applicant. In rare circumstances, the courts may have limited discretion to extend this application period.
Complain to an ombudsman
Depending on the type of decision made, you may be eligible to make a complaint to an ombudsman (e.g. the Commonwealth Ombudsman) if you are not happy with the outcome of the decision or the general actions of an administrative government decision maker.
The traditional core function of the ombudsman is to investigate complains concerning the actions and general conduct of public authorities and executive government bodies: Gleinster v Dillon [1976] VR 550 at 551. The ombudsman institution is bound by the Ombudsman Act 1976 (Cth) and the Ombudsman Act 2001 (Qld).
Gibbs Wright Litigation Lawyers can assist you in making a complaint and putting your best argument forward.
The type of review and enforceability offered by an Ombudsman is limited, and accordingly, this method of review will generally only be advisable in circumstances where no relief is available through judicial review or merits review. Most ombudsmen, including the Commonwealth Ombudsman, only have the power to recommend a particular resolution or action that they consider appropriate in the circumstances, but the power rarely extends to allow the ombudsman to enforce their recommendations on a particular agency on public authority.
This means that an agency or public authority that have been found by the ombudsman to be at fault is generally not bound to comply with the ombudsman’s recommended resolution processes.
Overturn unfavourable administrative decisions
Regrettably, many government officials will frequently make unlawful and/or unreasonable decisions. These decisions can often have very significant consequences. Examples of decisions that could have a severe impact both on individuals and a population at large include decisions relating to the acceptance of mining leases, a decision to close a particular pub or restaurant, or a ruling that an asylum seeker is not eligible for settlement in Australia. Administrative decisions can often be costly for businesses and devastating for individuals.
Almost all decisions by government bodies are reviewable through administrative law legislation. The legislation differs from state to state, and different rules and regulations will apply to different types of matters, ranging from local government matters to matters on a federal level. Regardless of whether a decision is made on a local, state or federal level, administrative law legislation can be very powerful.
Gibbs Wright Litigation Lawyers are skilled administrative lawyers. We have experience fighting government decisions at all levels of government.
How an administrative lawyer can help
If a decision has not been made
If a decision has yet to be made, Gibbs Wright Litigation Lawyers can advise you and help you with your obligations during the decision-making process to ensure you are providing the decision maker with supporting material that will maximise your chances of receiving a favourable decision.
Although your rights of review are usually extensive, receiving good legal advice and assistance early on in can be highly advantageous in minimising any uncertainty or delay relating to your matter during the decision making process, and it may also save you from having to go through long review processes.
Decisions take time. Achieving a favourable result at the first decision-making level is by far the most efficient and cost-effective result you can achieve, and receiving legal assistance early on in the process will promote your chances of having a decision made in your favour at the first instance.
If a decision has been made
Gibbs Wright Litigation Lawyers generally become involved once a decision has been made, and almost exclusively when the decision is not a favourable one.
In order to achieve the best possible result for our client, Gibbs Wright Litigation Lawyers will usually undertake the following steps:
Step 1
We will first check whether you are still within the applicable time period provided (if any) to lodge an application for review of a decision. In some cases, decisions can be overturned regardless of how much time has lapsed, while other decisions may require you to act quickly.
Step 2
We will then consider whether it is likely that a more favourable decision could be made in place of the current decision in the circumstances.
If we consider it unlikely that a more favourable decision could be made, we may advise you that it would not be worthwhile to challenge the decision. However, most decisions are largely discretionary, and more often than not, we will be able to identify various factors that can be challenged to increase your prospects of achieving a more favourable result.
Step 3
If we consider that you have good prospects of success, we will need to consider all applicable factors that are relevant to support the argument that the decision should be overturned. Usually, we will try to establish whether an application can be made on one or more of the following grounds:
- A breach of the rules of natural justice occurred in relation to the making of the decision;
- Procedures that were required by law to be observed in relation to the making of the decision were not observed;
- The person who purported to make the decision did not have jurisdiction to make the decision;
- The decision was not authorised by the enactment under which it was purported to be made;
- The making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made;
- The decision involved an error of law (whether or not the error appears on the record of the decision);
- The decision was induced or affected by fraud;
- There was no evidence or other material to justify the making of the decision; or
- The decision was otherwise contrary to law.
Step 4
Depending on the type of decision made and the government department or agency that made the decision, we will consider the most appropriate approach in the circumstances, and we will then progress your matter accordingly.
Depending on the specific circumstances of your case, we may consider it appropriate to adopt one or more of the following approaches:
- internal review mechanisms (for example, negotiating with the agency);
- external review mechanism (for example, an ombudsman or commissioner); and/or review by a court or tribunal.
The legislative regime
Administrative law can be enforced through a variety of mechanisms. To dispute a decision made at the Commonwealth level, one or more of the following Acts may apply:
- Administrative Appeals Tribunal Act 1975 (Cth)
- Ombudsman Act 1976 (Cth)
- Administrative Decisions (Judicial Review) Act 1977 (Cth)
- Judiciary Act 1903 (Cth)
At the Queensland level, one or more of the following Acts may apply:
- Judicial Review Act 1991 (Qld)
- Ombudsman Act 2001 (Qld)
- Queensland Civil and Administrative Tribunal Act 2009 (Qld)
- Judicial Review Act 1991 (Qld)
For when you need assistance
Gibbs Wright Litigation Lawyers can assist you with all aspects of administrative law to achieve a decision that is favourable to you, including providing advice, negotiating, drafting applications and appearing in court on your behalf – whatever stage of the process you require assistance with, we have you covered.
