Administrative Review (NSW)

Administrative review is the process of a court or tribunal reviewing a decision that has been made by a government department or agency. Administrative review may be a review of a decision ‘on the merits’ (merits review). Alternately, it may be limited to considering whether the decision was lawfully made or whether there was a legal error (judicial review). This page deals with administrative review in New South Wales.

Jurisdiction

In New South Wales, the NSW Civil and Administrative Tribunal (NCAT) is the statutory body that hears merits reviews of state government decisions.

Application for judicial review in New South Wales are made to the Supreme Court’s administrative law list.

NSW Civil and Administrative Tribunal

NCAT deals with a wide range of civil and administrative matters.

NCAT’s administrative review division hears merits reviews of government decisions about:

• firearms licences
• privacy of personal information
• working with children checks
• state taxation
• community services including decision about children’s education, adoption services and financial support to persons with disability.

The NSW Civil and Administrative Tribunal is governed by the Civil and Administrative Tribunal Act 2013.

Merits review process

A person wanting to seek a merits review by NCAT must complete an application form setting out the details of the decision being reviewed and the grounds for seeking review. If the application is not being made within 40 days of the decision, the applicant must give a reason for lodging the application out of time.

A fee is payable upon lodging an application for administrative review. Parties are generally self-represented in NSWCAT matters. A party can be represented by a lawyer with the tribunal’s leave.

After an application has been received, parties will be invited to attend a case conference to identify issues and explore ways the dispute may be resolved. The matter may then be listed for mediation if it is appropriate.

If the matter cannot be resolved at the case conference or through mediation, the parties will be asked to file written material in support of their case and then to attend a hearing.

The hearing will be heard by a single tribunal member, who will make a decision after hearing evidence and submissions. NCAT members can make a range of orders including:

• affirming the decision
• reversing the decision
• substituting a new decision
• sending the matter back to the original decision-maker to reconsider.

The Tribunal will give parties written notice of the decision and what rights they have to appeal the decision. A party can also request that the Tribunal member provide reasons for its decision.

Appeals against NCAT decisions

Some NCAT decisions can be appealed to the NCAT Appeal Panel. Other types of NCAT decisions, such as decisions about Working With Children Checks, cannot be appealed.

The Appeal Panel considers appeals on errors of law. A merits review will be conducted only if the Appeal Panel grants leave.

Appeal Panel decisions cannot be appealed to NCAT. Some Appeal Panel decisions may be appealed to the Supreme Court on a question of law.

Judicial review by the Supreme Court

Judicial review is the process of reviewing whether a decision made by a government department or agency was lawful or whether there was an error of law. In New South Wales, judicial review is governed by the common law and heard by the Supreme Court.

A party may seek judicial review of a government decision on one or more grounds. Common grounds for seeking judicial review are:

• That there was an error of law by the decision-maker
• That the decision-maker failed to give the applicant procedural fairness
• That the decision was not supported by the legislation it was purportedly made under
• That the decision-maker took into account an irrelevant consideration
• That the decision-maker did not take into account a relevant consideration
• That there was no evidence to support the decision
• That the decision-maker failed to give adequate reasons for the decision.

An application for judicial review must be made within 28 days of the administrative decision to be reviewed.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.