Administrative Review in Tasmania
Administrative review occurs when a court or tribunal reconsiders a decision that was made by a government department or agency to assess whether it was the correct decision. In Tasmania, a lot of administrative review is conducted by the Magistrates Court and by TASCAT. This page deals with administrative review in Tasmania.
Administrative review in Tasmania is governed by the Judicial Review Act 2001, and the Tasmanian Civil and Administrative Tribunal Act 2020.
Types of administrative review
There are two main types of administrative review: merits review and judicial review.
Merits review is the review of a decision to ensure that the decision was the correct and preferable one; that is, based on the facts in front of the decision maker.
Judicial review is the review of a decision to ensure that the power exercised was properly exercised in accordance with the statute or legislation. In other words, the review is conducted to determine whether the decision was lawful.
Many merits review matters in Tasmania are dealt with by the Tasmanian Civil and Administrative Appeal Tribunal (TASCAT), which includes a Worker’s Rehabilitation and Compensation stream and an Anti-Discrimination stream.
When TASCAT conducts a merits review of a decision, it considers whether the decision is the correct and preferable one based on all the evidence and material that was before the original decision-maker as well as any further evidence and material that it decides to admit.
The Tribunal may:
- Affirm the decision
- Vary the decision
- Set aside the decision and substitute its own decision
- Set aside the decision and send the matter back to the decision-matter for reconsideration
And make any order it considers appropriate.
Judicial review in Tasmania is conducted by the Supreme Court.
A party can seek judicial review of a decision on the basis that the decision was not made lawfully.
A decision may have been unlawful for a number of reasons including:
- because it was outside the decision-maker’s scope of power or authority
- because the decision-maker took into account irrelevant factors
- because the decision-maker failed to take into consideration relevant factors
- because the decision-maker was biased
- because the decision-maker did not give a person procedural fairness.
- Is a decision reviewable?
- There are many types of decision that are subject to administrative review. These include local government decisions to grant or refuse a planning permit or a decision to issue or refuse to issue a driver’s licence. To determine whether a decision is reviewable, look at the legislation that grants the authority in question the power to make the decision.
- In order to apply for judicial review, a person must have standing. This means that the applicant must be a person whose interests are adversely affected by the decision.
- Before lodging a claim, you should first ask for reasons from the original decision maker if these have not already been provided. In many cases, you can also seek a reconsideration of the original decision from the decision maker. This is known as internal review.
Magistrates Court of Tasmania
In Tasmania, the Administrative Appeals Division of the Magistrates Court deals with administrative review under a large number of Acts. Applications for review by the Magistrates Court must be made within 28 days of receiving the decision.
The Magistrates Court has a number of powers in relation to administrative law include the power to:
- review decisions under legislation
- make declarations in relation to an entitlement to reasons or that a decision be made within a reasonable time.
- make orders to provide reasons timely or more adequately and;
- procedural orders.
Administrative law decisions made by the Magistrates Court can be appealed to the Supreme Court.
Tasmanian Ombudsman Service
A person who is unhappy with the actions of a government department or agency in Tasmania can also complain to the Tasmanian Ombudsman.
While the Ombudsman does not have the power to change a decision, it can investigate complaints and make recommendations which are publicly released. This can be very influential in getting a decision changed or policies altered.
The Tasmanian Ombudsman is also the only avenue to complain about a decision of the Independent Housing Review Committee, which investigates decisions made by Housing Tasmania regarding public housing matters.
Before making a complaint to the Ombudsman, a person should attempt to resolve the matter directly with the original decision-maker.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.