Administrative Review

Administrative review in the ACT is the review by a third party of an administrative decision made by a government agency or department. The ACT Civil and Administrative Tribunal (ACAT) is responsible for reviewing administrative decisions made under legislative powers bestowed by government departments and officials in the ACT. ACAT was established as a ‘super tribunal’ in 2008 under the ACT Civil and Administrative Tribunal Act 2008, as the consequence of the amalgamation of a number of smaller tribunals. It was one of the first so-called super tribunals to be established in Australia.

The kind of review ACAT provides is known as merits review. A merits review occurs when a decision-maker stands in the shoes of the original decision-maker and makes a decision on the merits of the case. The ACAT does not conduct judicial review, which requires a determination as to whether a decision was lawfully made. Judicial review is conducted by the Supreme Court.

Administrative review in the ACT – merits review

The ACAT has a broad jurisdiction in merits review of government decisions. It reviews decision made under more than 100 different pieces of legislation. For example, ACAT reviews state taxation decisions made under the Duties Act 1999 and the Taxation Administration Act 1999. It deals with FOI claims under the Freedom of Information Act 1989, and it deals with issues arising out of changes of name under the Births, Deaths and Marriages Registration Act 1997.

The ACAT website provides a full list of the legislation under which it has been granted jurisdiction.

Making an application for merits review

To request a merits review of a decision, a person must fill out and lodge the correct form with ACAT. However, not everybody is entitled to apply for a review of an administrative decision. Who is eligible to seek review of a decision is set out in each of the authorising laws to which the claim relates. The authorising legislation also sets out the time limits for seeking review and the powers ACAT has when dealing with an application for review.

For example, if an application is made in relation to a claim under the Freedom of Information Act 1989, that Act states that the person seeking access to documents must make an application to ACAT within 28 days of their request being refused (subject to rules about seeking an internal review). The Freedom of Information Act 1989 also stipulates what powers ACAT has when dealing with such an application. If a document is exempt under the Act and cannot be accessed, ACAT cannot grant access. Otherwise, ACAT can generally make any changes to the original decision.

When a person seeks review of a decision, the onus is on the government department or agency to show that its decision was justified. Once the decision is made, the Tribunal must give notice of the decision to people who are affected by it. It must also provide a reasons statement, setting out the Tribunal’s reasons for its decision.

Appealing an ACAT decision

A decision by the ACAT can be appealed internally either on a question of fact or law. However, an ACAT decision cannot be appealed for a further merits review. When a decision is appealed internally, it will be heard by an appeal tribunal, which may be constituted by one or more Tribunal members.

Appeals can also be made against ACAT decisions to the Supreme Court on a question of fact or law with leave from the court. However, generally the applicant must first go through the appeal tribunal process before appealing to the Supreme Court.

Administrative review in the ACT – judicial review

The ACT is one of the few jurisdictions to have codified the rules of judicial review. Judicial review occurs when an appeal court looks a decision to determine whether the decision was lawfully made. Most other jurisdictions in Australia rely on the common law for the principles of judicial review. The ACT rules are found in the Administrative Decisions (Judicial Review) Act 1989.

Only ‘eligible persons’ can apply for judicial review by the Supreme Court. Who is an eligible person depends on the legislation the original decision was made under, but can include a corporation or an unincorporated association.

For most decisions, the Supreme Court will also only hear an application for judicial review if it raises an issue of public importance. The grounds for an application must be set out and may include the following:

the decision-maker had was no jurisdiction to make the decision
there was a breach of the rules of natural justice
the person who made the decision did not follow procedures prescribed by law
the decision-maker made an error of law.

The Supreme Court may then make a number of orders when dealing with judicial review of a decision. These include making a common law writ such as a writ of mandamus (requiring a person to perform a duty they have not performed) or certiorari (ie an order setting aside the decision).

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.