Process and procedure for challenging a government decision

Contributed by JudyMcLean and current to 27 July 2018

Commonwealth Administrative Review

Administrative Decisions (Judicial Review) Act

There are now two courses open to any person wishing to obtain a judicial review of a Commonwealth administrative decision:

• application for review to the Federal Court of Australia under the ADJR Act and/or an application to that court under s.39B of the Judiciary Act 1903 (Cth); and
• application for declaration, injunction or prerogative writ in the High Court (the High Court would generally remit the matter for hearing in the Federal Court).

Taking the matter to the Federal Court is an attractive option because of the clear and simple procedures which the ADJR Act provides. It also provides the applicant with an opportunity to obtain a statement from the decision-maker regarding the reasons for its decision, before commencing proceedings – a right not previously provided.

Not all Commonwealth decisions may be reviewed by the Federal Court, Schedule 1 to the ADJR Act sets out the classes of decisions exempt from jurisdiction under that Act. From the viewpoint of individual rights, the most important exemptions are:

• provisions under the Migration Act 1954 (Cth) prevent resort to ADJR by a privative clause except for some peripheral matters (although matters may still be appealed where there has been a jurisdictional error permitting appeals to be heard by the Federal Court). See further Immigation and Refugees;
• decisions under the Australian Security Intelligence Organisation Act, Telecommunications (Interception) Act 1979 (Cth), and Telephonic Communications (Interception) Act 1960 (Cth); and
• decisions under certain passport regulations.

Other exemptions relate to the federal industrial relations system, the taxation assessment and appeals system, foreign investment and the National Companies and Securities regulation system. As the list of exemptions is likely to change from time to time, it should be checked before assuming that a commonwealth decision is reviewable under the ADJR Act. If not available, it is possible that the decision may be reviewable under s.39B of the Judiciary Act. Generally, the majority of the cases would fall within the ADJR Act.

Standing to make application

Under the ADJR Act, any person who is aggrieved by a decision can make application to the Federal Court. This includes the person against whom the decision was taken and may also include other parties who are able to show that their interests are adversely affected. No reference however is made to the possibility of community groups making application to the court where they have some interest in the decision, such as environmental groups. See further Environment and Planning.

Matters for review

A person aggrieved may apply for a review of:

• a decision (including a report or recommendation within the meaning of ss.3(3) and (5));
• conduct for the purpose of making a decision (s.6); and
• failure to make a decision (s.7).

The procedure is simply described as an application for an order of review

Administrative Appeals Tribunal - Commonwealth

Any person who is unhappy with an administrative decision made by an agency of the Commonwealth should first read the Act or Regulations under which the decision was made. The Act or Regulations will usually outline any right to appeal given to people affected by the decision.

This may include a right of appeal to the Administrative Appeals Tribunal (AAT). The AAT is an independent forum to which appeals can be taken against a wide range of Commonwealth government decisions, and the grounds for appeal have been laid down in wide terms.

The AAT maintains a website which provides access to information about the Tribunal and its procedures as well as access to governing legislation and the list of matters over which the AAT has jurisdiction: see www.aat.gov.au.

Decisions the AAT may review

The AAT only has the power to review a decision where an Act of the Commonwealth Parliament has given it power, or where the right is set out in a schedule to the AAT Act. The list is constantly changing. An up to date list is available on the AAT website: www.aat.gov.au. The reach of the AAT is not complete. The decision of a number of important Commonwealth tribunals may not be appealed to the AAT. These include the Security Appeals Tribunal (established by the ASIO Act 1979 (Cth)) and the Disciplinary Appeals Board under the Public Service Act 1999 (Cth), each of which has been established since the AAT came into existence.

The word decision is given an extended meaning under the Act. A failure to make a decision within the prescribed period will amount to a decision.

Applications to the Tribunal have to be in writing and may be on a special form which is available from the AAT or can be downloaded from its website: www.aat.gov.au. The application should be lodged within a prescribed time (which varies according to the legislation relevant to the decision being appealed but is no less than 28 days) from the date on which the decision was made known to the applicant, but the time may be extended by the tribunal. Application fees of $606 apply in some matters, but not in appeals relating to social security, veterans affairs or decisions made by Comcare. Where the applicant is impecunious, or is the holder of a health care card, there is provision to waive the fee.

After the application for review has been lodged, the AAT will contact the respondent authority and ask it for a statement of facts and reasons for the decision. In addition, it has to supply the Tribunal with every other document in its possession which is relevant to the decision. This set of papers, including the statement of reasons and index (section 37 or T documents) is also provided to the applicant.

The AAT reviews the decision on the merits, aiming to reach the correct or preferable decision.

Social Security or Austudy decisions

A person who wishes to appeal against a decision by Centrelink must first appeal to the Social Security Appeals Tribunal and then if necessary to the AAT. The SSAT maintains a website – www.ssat.gov.au – which provides helpful information to those considering an appeal to that tribunal. See also Social Security Entitlements.

Veterans Affairs' decisions

A veteran who wishes to appeal against a decision by the Department of Veterans Affairs must first appeal to the Veterans Review Board and then if necessary to the AAT. The VRB maintains a website – www.vrb.gov.au – which provides helpful information to those considering an appeal to that Board including links to legislation and case law.

Who may apply?

Those persons whose interests are affected by the decision, or their representatives, may apply to the AAT for a review of the decision. A broad approach is taken by the Tribunal to the issue as to whether a person’s interests are affected. Community groups and public interest organisations are given a wide right of access to the AAT. An organisation or association, whether incorporated or not, shall be taken to have interests that are affected by a decision if the decision relates to a matter which was included in the objects or purposes of the organisation or association at the time of the decision.

Reasons for the decision

Before making an application to the AAT, the person may apply to the authority which made the decision requesting a written statement setting out the facts upon which the decision was made and the reasons for the decision. The decision-maker must then provide that material within 28 days (see above under ‘ADJR Act'). In most cases, it is better simply to make an application to the AAT for review because the decision-maker's reasons will be supplied automatically to the Tribunal and to the applicant (see below).

State Administrative Review

The State Administrative Tribunal (“SAT”) commenced in January 2005. The SAT replaced the functions of nearly 50 industry and public sector boards and tribunals to create the most comprehensive administrative jurisdiction in Australia. Its focus is on informality and mediation. Under the legislation, the SAT encompasses two jurisdictions: one is the review of decisions that are currently determined by the courts, Government Ministers or public officials, and vocational licensing decisions. The other is original jurisdiction in relation to:

• disciplinary proceedings affecting a number of statutorily regulated trades and professions, including:
  • doctors
  • lawyers
  • architects
  • nurses
  • motor vehicle dealers
  • plumbers
  • electricians
  • finance brokers
  • real estate agents.
• civil, commercial or personal matters including:
  • equal opportunity cases
  • disputes about strata titles
  • guardianship matters.

The SAT is divided into four divisions:

• Human Rights and Equal Opportunity
• Resources and Development
• Vocational Regulation
• Civil and Commercial.

Procedure

The key features of the SAT are:

• A simple application form tailored to the needs of different applicants;
• Applicants to SAT or parties to proceedings may be represented by legal practitioners;
• Mediation is encouraged. SAT has the power to refer parties to attend a compulsory conference or mediation where appropriate;
• SAT gives reasons for its final decisions; and
• Hearings of SAT are public unless the enabling Act or the Tribunal specifies otherwise.

In some cases, where the subject matter of the dispute can be ascribed a monetary value of $7,500 or less, the applicant may choose to have it dealt with as a minor proceeding. In this case, the applicant may elect to have the matter dealt with without a hearing (the matter will be dealt with on documents), without legal representation, and with no appeal. All parties to the matter must abide by the applicant’s choices.

How to apply

Necessary forms for applications can be obtained from the SAT online (www.sat.justice.wa.gov.au). Applications with any supporting documents should be sent or delivered to SAT at the contact address listed at the end of this chapter. In special circumstances, such as when an applicant lives in a remote location, the SAT may agree to the application being emailed or faxed.

Further information about the SAT's jurisdiction and procedures is available from its website: www.sat.justice.wa.gov.au.

Gaining access to documents

Requests for access to documents must be made in writing and provide such information as is reasonably necessary to enable the agency to identify the document sought. Requests must be dealt with as soon as possible with a maximum time limit of 60 days. Narrow grounds for deferring a request for access are also provided. A document may be supplied in response to a request with exempt matter deleted, provided that it is practicable and the document as supplied would not be misleading. Information Access Offices must be established by agencies, and agencies are required to give access to a document at the Information Access Office nearest to the residence of the applicant which has appropriate facilities to provide access in the form requested. Charges are often made for giving access. The criteria governing the setting of charges seek to limit them to direct costs of providing access and confer a wide discretion on the agency to waive charges.

The federal Attorney-General’s Department has produced a general information pamphlet about freedom of information which can be downloaded from its website at www.ag.gov.au.

Departmental manuals, directories and indexes

To make effective use of FOI rights, applicants need to have the means of identifying the location of information in which they may have an interest. This concern is addressed by provisions in the legislation which require agencies to publish indexes and directories outlining the contents of their information systems. Moreover, certain types of documents held in agencies must be periodically published and made available on request. These are documents used by an agency in making decisions or recommendations with respect to the rights, privileges or benefits of people under any scheme administered by an agency. In particular, the legislation specifies manuals or other documents containing interpretation rules, guidelines or precedents, including precedents in the nature of letters of advice. The importance of giving a right of access to these basic documents cannot be underestimated.

Total exclusions

A number of Commonwealth agencies are not subject to the legislation in any respect, while several have been given exemption in regard to certain special classes of documents. These total exclusions are set out in schedules to the legislation. Several of the exempt agencies are engaged in commercial operations, e.g. Australian National Railways Commission, Commonwealth Banking Corporation. The rationale for their exclusion is that they would be placed at a significant disadvantage in their competition or dealings with private sector organisations in the same field if those organisations, themselves free of any duty to disclose information, were able to obtain commercial information through FOI. Others are concerned with Aboriginal self-management (Aboriginal Lands Councils and Lands Trusts), labour relations (National Labour Consultative Council) and national security (Australian Security Intelligence Organisation and Office of National Assessments).

Nineteen agencies have exemptions for particular classes of documents. Most relate to documents to do with the agency’s competitive commercial activities. Examples of other interests given protection are: the Australian Broadcasting Commission in relation to its program material, and the Department of Defence in relation to documents to do with activities of the Defence Signals Directorate and the Defence Intelligence Organisation.

Freedom of Information: State

Where a person aggrieved seeks information relating to a decision by a State government agency, access to such information may be possible under the Freedom of Information Act 1992 (WA).