Administrative Review in Queensland is an area of law which can be confusing. The legal concepts surrounding administrative review and administrative law in general can seem quite subjective. In reality, though, administrative review is simply an avenue for a the review of decisions made by the executive arm of government, including government agencies, departments and officials, ministers, and even tribunals and courts. This includes a vast array of decisions, such as a decision whether or not to grant a blue card, or a decision to grant access to information under freedom of information laws.
Administrative law historically has been an area of the common law, which is that area of law that has evolved through case law, legal traditions and conventions. Queensland, along with the Commonwealth government, Tasmania and the ACT, has partly codified (enacted legislation regarding) the area of administrative review.
There are two kinds of administrative review of decisions, which are based on different principles and are procedurally quite distinct. The first kind of review is known as merits review, which, as the name implies, is a review of a decision based on its merits. The reviewing tribunal member must make a decision which is within the powers vested in the original decision-maker under the legislation, and therefore stands in their shoes to make the ‘correct and preferable’ decision. This kind of review is usually conducted by a specialist administrative tribunal which is created by statute for the purpose of reviewing administrative decisions (amongst other specific functions). In Queensland, this tribunal is the Queensland Civil and Administrative Tribunal.
The second kind of review is known as judicial review and is conducted by the Queensland Supreme Court under the Judicial Review Act 1991. It is a review of a decision based on determining whether or not the decision was legally made, as opposed to determining whether the preferable or correct decision was made.
In Queensland, the Queensland Civil and Administrative Tribunal has both original and review jurisdiction in accordance with the Queensland Civil and Administrative Tribunal Act 2009, and the accompanying rules under the Queensland Civil and Administrative Tribunal Rules 2009 and the Queensland Civil and Administrative Tribunal Regulation 2009.
The piece of legislation (Act, Rules or regulations) under which the original decision-maker made his or her decision must also specify that administrative review is possible via QCAT. This is known as the ‘enabling act’. If the enabling act does not specify as such then QCAT does not have the jurisdiction to conduct a merits review. In most cases, an application for administrative review must be made within 28 days of the decision being made, which review is conducted by way of a fresh hearing.
The decision-maker is obliged to assist QCAT by providing the tribunal with his or her reasons for decision and any evidence or facts which helped him or her reach that decision. QCAT may order that the decision be stayed (suspended or withheld) pending the outcome of the review. QCAT may also order that the decision-maker reconsider his or her decision, in which case the decision-maker has 28 days to amend, set aside/quash, or amend the decision. If QCAT does not send it back to the decision-maker for reconsideration, it may substitute its own decision for that of the original decision maker (thereby setting aside the original decision), or confirm or amend the original decision.
The Judicial Review Act 1991 is modelled on the Commonwealth Administrative Decisions (Judicial Review) Act 1977. This allows for the judicial review of a decision, as well as the failure to make a decision, under authorising enactments.
Only people whose interests are adversely affected by the decision, or whose interests would be adversely affected by a decision, can bring an application for judicial review under the Judicial Review Act. Section 20 of the Act limits the grounds on which a person can bring an application for review. These grounds include that there was a breach of the principles of natural justice, that there was no legal jurisdiction under the legislation to make the decision or that it was unauthorised (known as acting ‘ultra vires’), that there was no evidence to justify or support the decision, that the decision was erroneously made, or that there was an improper exercise of power.
Most applications for judicial review must be filed with a registry of the Supreme Court of Queensland within 28 days of the decision being made, or of the alleged failure to make a decision. The Court has power to make certain orders under the Act, including:
- setting aside or quashing a decision
- referring the matter back to the original decision-maker for reconsideration
- declaring the rights of the parties, and
- ordering that the original decision-maker do something or refrain from doing something.
Judicial review of decisions of lower courts and tribunals has a slightly different procedure. The Queensland Supreme Court no longer has the power to issue prerogative writs to lower courts (writs which order the lower court to do something), and reviews are done by way of an application for judicial review, which must be done within three months of the grounds for review arising.
When applying for Administrative Review in Queensland, you also need to be mindful of Commonwealth legislation that may affect the proceedings. This legislation includes: Administrative Decisions (Judicial Review) Act 1977 (Cth), the Administrative Appeals Tribunal Act 1975 (CTH), the Ombudsman Act 1976 (CTH), and the Freedom of Information Act 1982 (CTH).