Administrative review is the area of law that deals with challenging decisions made under legislation or regulations, normally by government and regulatory bodies and officials. Unlike other states in Australia, many administrative law matters in Tasmania are dealt with by the Magistrates Court.
Examples of administrative review include government decisions (for example the decision by a local government to refuse a planning permit or the decision of the Planning Minister to grant a building permit) or an authority (such as the Department of State Growth (Transport) issuing a driver’s licence)
There are two main types of administrative review: merits review and judicial review. Merits review means to review 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 different; it means to review a matter to ensure that the power exercised was properly exercised in accordance with the statute or legislation. Another way of putting this is to determine if the decision was lawful. This can mean a number of things. For example, it could mean that a decision was made ultra vires, or outside the decision maker’s scope of power or authority. Or it could mean that the decision maker took into account irrelevant factors or failed to take into consideration relevant factors. It could also mean that the decision maker was biased, acted unreasonably, was dishonest or did not give someone the ability to be heard or to give evidence before making the decision (denial of natural justice). Finally, it could just mean the decision maker misunderstood the law.
The first place to look is the legislation which grants the authority in question the power to make the decision. The three Acts that govern administrative review matters in Tasmania are the Magistrates Court (Administrative Appeals Division) Act 2001, the Judicial Review Act 2000 and the Ombudsman Act 1978.
But before lodging a claim, you should first ask for reasons from the original decision maker if you have not been given any. You can also seek a reconsideration of the original decision from the decision maker directly.
In any event, you will need to look at the legislation to see whether you can lodge an application for review. You must be a person aggrieved to have a decision reviewed. The Judicial Review Act 2000 says that this is a person whose interests are adversely affected by the decision. If it is in relation to a report/recommendation, it also means a person would be adversely affected if it was followed.
Many merits review matters are not handled by the courts; rather there are tribunals which can hear and determine these matters. The main standalone Tasmanian tribunal is the Resource Management and Planning Appeals Tribunal (RMPAT). It hears matters concerning public planning and environmental matters. Appeals can be heard by the Supreme Court of Tasmania. Other tribunals include the Worker’s Rehabilitation and Compensation Tribunal and the Anti-Discrimination Tribunal.
Matters which are not heard by a specific tribunal are heard by the Magistrates Court. This is different to the other states of Australia. The main division which handles administrative review in Tasmania is the Administrative Appeals Division of the Magistrates Court which deals with administrative review under a large number of Acts. It includes the Local Government Act in relation to decisions made by local councils.
The Administrative Appeals Division of the Magistrates Court has a number of powers in relation to administrative law. For example, the Court can:
- 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.
Applications must be made within 28 days of receiving the decision. Administrative law decisions of the Magistrates Court can be appealed to the Supreme Court, which has jurisdiction for administrative law matters under Part 3 of the Judicial Review Act.
Another way of challenging a decision made by government or regulatory bodies in Tasmania under legislation is to lodge a complaint with the Tasmanian Ombudsman. While the Ombudsman does not have the power to change a decision, they can investigate complaints and can make recommendations which are publicly released and can be very influential in getting a decision changed or policies altered. Usually however, the Ombudsman will expect that you have tried to resolve the matter with the original decision maker yourself.
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.