Administrative review in New South Wales is the process by which a decision made by a government department or government official is reviewed and possibly reversed.
There are two types of administrative review: reviews made by an independent decision-maker on the merits of the decision (known as ‘merits review’), and a review of whether a decision was lawfully made (known as ‘judicial review’).
In New South Wales, the main statutory body to which a person can apply for a merits review of a decision is the NSW Civil and Administrative Tribunal, which began operating on 1 January 2014. You can make an application for judicial review of a decision to the Supreme Court of NSW’s Administrative Law list.
NSW Civil and Administrative Tribunal
The NSW Civil and Administrative Tribunal came into existence on 1 January 2014 as a ‘super tribunal’, meaning it took over the jurisdiction of over 20 NSW tribunals that no longer exist, such as the NSW Administrative Decisions Tribunal. The rules for how it operates are in the Civil and Administrative Tribunal Act 2013.
The Tribunal has multiple divisions, including:
- the Consumer and Commercial Division
- the Administrative and Equal Opportunity Division, and
- the Occupational Division.
Each division is governed by its own set of rules and has its own jurisdiction to conduct administrative review.
Merits review jurisdiction
In order to conduct a merits review, the NSW Civil and Administrative Tribunal must be given jurisdiction under another piece of legislation to do so. This is called its administrative review jurisdiction. For example, the Administrative and Equal Opportunity Division has jurisdiction to review decisions made by the NSW Office of State Revenue in relation to:
- state taxation issues
- decisions made in relation to granting firearms licences
- decisions made whether to release information held by a government agency under the Government Information (Public Access) Act 2009, and
- decisions made in relation to working with children checks.
Merits review process
The rules for how the Tribunal will conduct a merits review are contained in the Administrative Decisions Review Act 1997.
Only certain people can apply for merits review of a decision; this depends on the kind of decision that is being reviewed. Application forms for a merits review must be lodged with the Tribunal. The Tribunal must then decide what the correct and preferable decision was based on the facts and the relevant law.
Generally speaking, you require leave to be represented by a legal practitioner. The Tribunal will give you written notice of the decision and what rights you have to appeal the decision.
You can also request that the Tribunal member give you reasons for their decision, which they may refuse to do in certain circumstances (eg if a request to review wasn’t made within a reasonable time after the decision).
Rights of appeal – Administrative review in New South Wales
In certain circumstances, you can apply for an internal merits review of a decision made by the Tribunal.
The Appeal Panel effectively steps into the shoes of the Tribunal member who made the earlier decision. It can consider new evidence and make such orders as it considers appropriate.
You cannot seek a further merits review by the Supreme Court of NSW, but you can make an appeal on a question of law.
Judicial review is the process of reviewing whether a decision made by a government department or government official was lawful.
Unlike the Commonwealth and certain other States and Territories (eg Queensland), NSW has chosen not to create legislation for how judicial review is undertaken but instead is based on common law.
There are a number of grounds for judicial review, including:
- there was an error of law by the decision-maker, or
- the decision-maker did not take into account relevant material.
Supreme Court of NSW reviews
The Supreme Court of NSW has jurisdiction to undertake judicial review. Such hearings are usually included in the Administrative Law list, which is part of the Common Law division of the Court. The rules for how to apply for judicial review are found in Part 59 of the Uniform Civil Procedure Rules 2005.
Generally speaking, an application for judicial review must be made within 3 months of the administrative decision to be reviewed. Usually, the evidence relied on by the original decision-maker is sufficient for the Supreme Court to reach a decision.
A specific summons form must be lodged for a judicial review application.