Administrative Review (WA)

Administrative review in WA is the process of seeking to have a decision made by a government body, official, organisation, or representative, reconsidered. Some decision by non-government authorities are also subject to administrative review, provided the decision-maker was exercising a public statutory power. Decisions by private individuals or corporations cannot be administratively reviewed.

Only administrative decisions may be reviewed. Examples of decisions which are not administrative decisions are

• whether to prosecute a person with a criminal offence;
• decisions about the making of laws;
• employment matters such as whether to hire or fire an employee;
• contractual decisions such as whether to enter into a contract.

Examples of administrative decisions

Some examples of administrative decisions which are subject to administrative review are:

• ASIC’s declaration that a person is not ‘fit and proper’ for the purposes of obtaining a financial services licence;
• The immigration minister’s decision to refuse a visa;
• Centrelink’s decision to stop paying a person a benefit;
• A council’s order that a dog be destroyed;
• A licencing authority’s refusal to grant a licence;
• A council’s decision to compulsorily acquire land.

Limitations of administrative review

An administrative review may only occur if the legislation under which the original decision was made allows it. Such legislation is called ‘enabling legislation’ because it grants the tribunal or court the jurisdiction to act.

When an applicant brings a matter before a tribunal, it must state the section of the act or regulation which empowers the tribunal to review the decision. If the act under which the decision was made does not explicitly state that administrative review to that tribunal is allowed, then the tribunal has no power to act.

Where are Administrative Decisions Reviewed?

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

• the State Administrative Tribunal (SAT) reviews state government administrative decisions
• the Commonwealth Administrative Appeals Tribunal (AAT) reviews federal government administrative decisions (and some state decisions, where the legislation specifically provides for this.)
• the law courts where a judge reviews the administrative decision (known as judicial review);
• the Ombudsman Western Australia who primarily reviews complaints made about administrative processes of state-government related entities, such as the Western Australian Police, local governments and public universities. Complaining to the Ombudsman is an avenue of last resort, as they only review decisions that cannot be reviewed by tribunals or courts.

How are Administrative Decisions Reviewed?

The State Administrative Tribunal and the Administrative Appeals Tribunal in Western Australia have the power to review a decision ‘on the merits’. This means that they can review the matter from scratch – by re-evaluating evidence, drawing conclusions, and making enquiries – and come to a different decision on the facts from the original decision-maker. A decision can only be reviewed ‘on the merits’ if the enabling legislation grants the tribunal the power to conduct such a review.

Where judicial review of a decision is sought, the court is not entitled to review the decision ‘on the merits’. It is only empowered to decide whether the method by which the original decision-maker made the decision was lawful. If the court finds that the process was lawful, then it cannot overturn the original decision, even if the decision-maker conducting the review would have come to a different conclusion on the facts.

The Ombudsman acts on complaints made about administrative decisions and initiates an investigative process. The Ombudsman can review the original decision from the beginning, as with a ‘merits’ review before the Tribunals.

What will be the Outcome of the Review?

Where an administrative review is conducted by the State Administrative Tribunal or the Administrative Appeals Tribunal, the tribunal may make an order that the original decision be:

• affirmed
• varied
• set aside, and substituted with a new decision;
• reviewed according to the Tribunal’s directions
• allowed to stand, and the application for administrative review dismissed.

An application for judicial review may have many different outcomes. In addition to those available to the tribunals, the courts may also issue injunctions to stop proceedings, declarations on legal matters within proceedings and orders requiring a tribunal to exercise power in a certain way.

The Ombudsman’s power to resolve complaints brought to his or her attention is less formal than those available to the tribunals and courts. Following an investigation, the Ombudsman will prepare a report in which they make recommendations to the original decision-maker. It has no power to enforce the recommendations.

If you are not satisfied with a government decision and are considering an administrative review, you should seek legal advice as soon as possible.

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