Administrative Review in Victoria
Administrative review is the area of law that deals with challenging and reviewing decisions made by government departments and agencies. In Victoria, administrative review can be conducted either by the Supreme Court or by a tribunal such as the Victorian Civil and Administrative Tribunal. This page deals with administrative review in Victoria.
Types of decisions that are reviewable
At state level, administrative review includes reviews of decisions to grant or refuse a planning permit, decisions about working with children checks, decisions about child welfare matters, decisions under the Domestic Animals Act, and decisions about victims of crime assistance application.
Merits review vs judicial review
The two main types of administrative review are merits review and judicial review. Merits review is the review of a government decision to ensure that the decision was the correct and preferable one. In other words, the court or tribunal decides what is the correct decision based on all the evidence and material front of the decision maker. This means that the reviewer essentially makes a new decision.
Judicial review involves reviewing a government decision to ensure that the decision-making power was properly exercised in accordance with the statute or legislation. In other words, judicial review assesses whether the decision was lawful.
A government decision may be unlawful for a number of reasons, including:
- the decision was made ultra vires (beyond the power). This means that the decision was outside the decision maker’s scope of authority
- the decision-maker took into account irrelevant factors
- the decision-maker failed to take into consideration relevant factors
- the decision-maker failed to give the applicant procedural fairness
- the decision-maker made an error of law.
In determining whether a decision maker exercised his or her power within the law, the first place to look is the legislation which grants that decision maker the power to make the decision.
Administrative review jurisdictions
There are two main venues for administrative review in Victoria. These are the Victorian Civil and Administrative Tribunal (VCAT) and the Supreme Court of Victoria.
The Victorian Ombudsman also investigates complaints about actions and decisions by public authorities. However, its powers are limited to investigating complaints, providing reports and making recommendations.
Seeking review of a decision
Before seeking a review of a government decision, you should ask for reasons from the original decision maker. You may also be able to seek a reconsideration of the original decision from the decision maker.
In order to seek a review of a government decision, a party must have standing. This means that they must be affected by the decision. In some cases, the applicant must be an aggrieved person. In other cases, it can simply be a person who has an interest in the decision.
The Administrative Law Act 1978 sets out the rules regarding who can have a decision reviewed in the Supreme Court.
Victorian Civil and Administrative Tribunal
The Victorian Civil and Administrative Tribunal (VCAT) deals with many of the administrative review decisions that arise under Victorian law.
There is a specific Division of VCAT that handles administrative decisions, and this Division has two lists that hear these kinds of matters. These are the Review and Regulation List (which hears general disputes regarding government decisions and licensing authorities) and the Planning and Environment List (which primarily hears disputes about planning decisions made by local councils).
For a decision to be reviewed by VCAT, the legislation under which it was made will need to state that VCAT can hear administrative reviews of decisions under the Act.
Supreme Court of Victoria
The Supreme Court of Victoria deals with all administrative review matters that are not heard by VCAT. This includes judicial review of decisions made by Victorian government authorities and review of decisions made by VCAT.
Unlike VCAT, the Supreme Court has general jurisdiction to hear administrative review matters. This means that it can review decisions made by government agencies and departments even where the legislation does not specifically provide for this.
The Supreme Court has the power to make four main orders that address administrative decisions that are found to be made in error. These are:
- orders of declaration (an order explaining the proper law)
- writs of certiorari (an order to set aside the decision)
- writ of mandamus (an order compelling the original decision-maker to do something)
- injunctions (an order forcing the original decision maker not to do something they would have done).
Victorian Ombudsman Service
A decision made by a Victorian government or regulatory body can also be complained about to the Victorian Ombudsman.
Whilst the Ombudsman does not have the power to change a decision, he or she can investigate complaints and make recommendations that are publicly released and can be very influential in getting a decision changed or policies altered. Usually, however, the Ombudsman will expect that a person has tried to resolve the matter with the original decision-maker first, and will refer them back to the original decision-maker if this has not been attempted prior to bringing a complaint to the Ombudsman.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.