Administrative Review In NSW

Administrative Review In NSW

Administrative Review In NSW

In NSW, administrative decisions can be challenged through the judicial review process. Government officials, tribunals and judges can be held accountable and their decisions reviewed if they are not lawful, correct or fair.

Find out more about the Administrative Review process in New South Wales, the different types of review and where applications can be made.

Let’s take a closer look.

What Is Administrative Review?

An administrative review process can alter, review, reverse, or confirm a decision made by a government department or official in New South Wales. Administrative law helps to regulate government decision-making by offering accountability mechanisms via the review process. It ensures that judges, tribunals and decision makers act lawfully, within the scope and purpose of their legal powers.

The two types of Administrative Reviews are merit and judicial review.

Establishment of the review process has several benefits, which include:

  • Shining a light on administrative decision making
  • Influencing the initial decision maker
  • Providing a guide to the primary decision maker
  • Imposing an obligation to offer reasons for decisions

As well as the Administrative Review process, the Federal Administrative law system provides additional accountability mechanisms, such as investigations led by the Commonwealth Ombudsman. The Ombudsman is an independent investigating body that recommends mprovements to a process or decision.

NSW Administrative Law

Administrative law deals with decisions made by NSW government officials, departments and bodies. When they make a decision that affects an individual, they must follow specific procedures, such as only making decisions within their power, giving a person an opportunity to respond, taking relevant information into account and acting with procedural fairness. Serious denial of procedural fairness may result in a jurisdictional error, which means, if a decision does not comply with the rules, an individual can seek a review of the decision.

The Primary Tenents Of Administrative Law

Over the last 500 years, the courts of Australia and England developed Adminisrrative law. The primary tenents ensure that when making administrative decisions, certain factors are met and help ensure the correct procedure is followed, when making decisions they must be:

  • Legal
  • Fair
  • Participative
  • Accountable
  • Consistent
  • Rational
  • Proportional
  • Impartial

Recent Judicial Review History

Developments within the law are ongoing and driven by cultural changes and the relevance of government decisions to the everyday lives of Australians. Administrative decisions can intrude into every aspect of society. Legislative changes aim to protect the public interest through regulation of activities which may harm the community, and ensure that a level of fairness is established. Consequently, the increased impact and intrusion of government decision making for its citizens, has led to the introduction of mechanisms for more scrutiny of the decisions.

In recent times, administrative law reforms from the 1970s have dramatically influenced judicial review. This includes the establishment of the Federal Court of Australia, the office of the Ombudsman and the Administrative Appeals Tribunal. Most significant was the enactment of the Judicial Review Act 1977.

NSW Civil And Administrative Tribunal (NCAT)

NCAT was established in 2014 and operates as per the legislation contained in the Civil and Administrative Tribunal Act 2013. The tribunal took over the jurisdiction of more than 20 tribunals that no longer exist in New South Wales.

There are several divisions within the tribunal, each with its own rules and jurisdiction including the following:

  • The Consumer and Commercial Division
  • Occupational Division
  • Equal Opportunity Division

Types Of Administrative Review In New South Wales?

In New South Wales, two types of Administrative Review can occur; judicial review and merits review.

A judicial review will ensure that a decision is made legally and within the limits of the power of the decision maker.

A merits review conducted by NCAT will ensure correct decisions will be made.

Merits Review

A merits review can determine whether the decision made was based on the facts and relevant law, and reviewed based on the merits of the decision. The merits review process aims to provide the review applicant with the correct administrative decision and improve the quality and consistency of future decision making.

To apply for a Merits review in NSW, an application can be made to the NSW Civil And Administrative Tribunal. 

Rules that govern the conduct of a merits review, is stated in the Administrative Decisions Review Act.

Merits Review Jurisdiction

NCAT will conduct a merits review with a specific jurisdiction under the original legislation called an Administrative Review Jurisdiction. 

The types of cases that the NSW Civil and Administrative Tribunal manage are broad and diverse. For example, they may review firearms licences decisions made by a government agency. These cases are managed through NCAT’s Administrative and Equal Opportunity Division. They can also review decisions made by the NSW State Revenue Department regarding taxation and state grants. Additionaly, they may also review community service cases, the release of information held by government agencies, working with children checks and occupational licenses.

Rights Of An Appeal

In certain circumstances, a person may wish to apply for an internal merits review of decisions made by the tribunal. An appeal panel will consider any new evidence and the decision made by the tribunal member. They will make the correct decision based on facts and relevant legislation.

Further merits review by the Supreme Court of NSW are not permitted. 

Judicial Review

A judicial review will determine whether the decision made by the government department or official was lawful. The judicial review aims to ensure the legality and prevent unlawful decisions from remaining on the public record. The Supreme Court of NSW will assess or examine a decision utilising common law principles.

Unlike some other states and territories in Australia, the NSW government has chosen not to create judicial review legislation, but rather allow judicial review decisions to be contained within the realm of common law. Common law principles include; establishing whether procedures were followed, whether there was an unbiased and fair hearing, and if procedural fairness was demonstrated.

There are several grounds where a judicial review may be considered including;

  • Ignoring relevant material
  • An error of law, such as reaching a mistaken conclusion or misinterpretation of the law
  • Relying on irrelevant material
  • The decision maker did not have jurisdiction
  • No evidence to justify the decision
  • Breach of natural justice, the right to a fair unbiased hearing

To apply for a judicial review in NSW, applications must be lodged with the NSW Supreme Court. Hearings are included in the Administrative Law List within the common law division of the court. Part of the judicial review application includes lodging a specific summons form with the Supreme Court of NSW.

An application for a judicial review must be made within three months of the administrative decision.

Federal Administrative Review Reform In Australia

In February 2023, the Australian Government announced landmark changes to Australia’s system of Federal Administrative Review. The key focus of the new Federal Administrative Review is that it will be independent, fair, accessible, efficient and user-focused. The new reform will establish a merit based and transparent system of appointments.

The Administrative Appeals Tribunal (AAT), will be replaced with a new administrative body called The Expert Advisory Group. The new group will provide expert advice on legislative and policy issues and comprises highly qualified and experienced members, such as a former High Court judge, a former Federal court judge and various professors.

Summary

An administrative review process can alter, review, reverse, or confirm a decision made by a government department or official in New South Wales. Administrative law can help regulate government decision-making by offering accountability mechanisms via the review process. It helps to ensure that judges, tribunals and decision makers act lawfully, within the scope and purpose of their legal powers. 

The two types of Administrative Reviews in NSW are merit and judicial review.

A merits review can determine whether the decision made was based on the facts and relevant law, and reviewed based on the merits of the decision. In NSW, applications for a merits review can be made at the NSW Civil And Administrative Tribunal. The tribunal has several divisions, each with its own rules and jurisdiction. 

A judicial review will determine whether the decision made by the government department or official was lawful. In NSW, a judicial review application, must be lodged with the NSW Supreme Court. Hearings are included in the Administrative Law List within the common law division of the court. Unlike some other states and territories in Australia, the NSW government has chosen not to create judicial review legislation, but rather allow judicial review decisions to contained within the principles of common law. 

There are several grounds where a judicial review may be considered, including; an error of law and ignoring relevant material.

In February 2023, the Australian Government announced landmark changes to Australia’s system of Federal Administrative Review. The Administrative Appeals Tribunal (AAT), will be replaced with a new administrative body called The Expert Advisory Group. The new group will provide expert advice on legislative and policy issues and comprises highly qualified and experienced members, intending to remain independent, fair, accessible, efficient and user-focused.

Administrative decisions can intrude into every aspect of society. Legislative changes aim to protect the public interest through regulation of activities which may harm the community, and ensure that a level of fairness is established.

FAQs

What Are The Grounds For Administrative Review?

A merits review will determine whether the decision made was based on the facts and relevant law, and reviewed based on the merits of the decision. The merits review process aims to provide the review applicant with the correct administrative decision and improve the quality and consistency of future decision making.

The judicial review aims to ensure legality and prevent unlawful decisions remaining on the public record.

There are several grounds where a judicial review may be considered, including;

  • Ignoring relevant material
  • An error of law, such as reaching a mistaken conclusion or misinterpretation of the law
  • Relying on irrelevant material
  • The decision maker did not have jurisdiction
  • No evidence to justify the decision
  • Breach of natural justice, the right to a fair unbiased hearing 

What Happens In Administrative Review?

An administrative review process can alter, review, reverse, or confirm a decision made by a government official or department in New South Wales. They will make the correct decision based on facts and relevant legislation. 

As well as the Administrative Review process, the Federal Administrative law system provides additional accountability mechanisms, such as investigations led by the Commonwealth Ombudsman.

Administrative law can help regulate government decision-making by offering accountability via this review process. It helps to ensure that judges, tribunals and decision makers act lawfully, within the scope and purpose of their legal powers.

NCAT will conduct a merits review with a specific jurisdiction under the original legislation called an Administrative Review Jurisdiction. For example, they may review firearms licences decisions made by a government agency, review decisions made by the NSW State Revenue Department regarding taxation and state grants, community service cases and working with children checks.

Simon Fletcher is the Principal Solicitor at FletchLaw. He has been admitted as a solicitor to the High Court of Australia and the Supreme Court of New South Wales. His academic qualifications include of a Bachelor of Laws, a Graduate Certificate in Professional Legal Practice and a Master of Applied Laws (Mediation and Family Law Dispute Resolution). He can offer assistance in a wide variety of legal areas.

Do you have a problem with Administrative Review in NSW or any other legal issue? Call us on 02 9159 9026 to find out how we can help.

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