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Administrative Review in Victoria

Written by Michelle Makela

Michelle Makela is one of our Legal Practice Directors and the National Practice Manager. She holds a Bachelor of Laws, a Bachelor of Science (Psychology) and a Master’s in Criminology. Michelle has had a varied career, working in commercial litigation, criminal law, family law and estate planning. Michelle joined Go To Court Lawyers in 2011. She now supervises a team of over 80 solicitors across Australia.

Administrative review is the area of law that deals with challenging and reviewing decisions made under legislation or regulations, normally by government and regulatory bodies and officials. In Victoria, the review can be heard either in the Supreme Court or a tribunal such as the Victorian Civil and Administrative Tribunal. Examples of administrative review include reviewing government decisions such as the decision by a local government to refuse a planning permit or the decision of the Planning Minister to grant a building permit, and reviewing decisions made by an authority such as VicRoads.

Types of administrative review

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. This means that the reviewer essentially makes a new decision.

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. 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.

A decision may also be made unlawfully if 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.

Administrative review in Victoria

There are three main venues for administrative review in Victoria; the Victorian Civil and Administrative Tribunal (“VCAT”), the Supreme Court of Victoria and the Victorian Ombudsman. But before lodging a claim with any of these bodies, 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.

In any event, you will need to be someone with “standing to sue” – a person able to bring an action to have the decision reviewed. In some case you need to be an aggrieved person, in other case you can simply be a person interested in the decision. For example, the Administrative Law Act 1978 explains the general rules regarding who can have a decision reviewed in the Supreme Court.

Victorian Civil and Administrative Tribunal

Many merits review matters are not handled by the courts; rather there are tribunals which can hear and determine these matters. The major Victorian tribunal is the Victorian Civil and Administrative Tribunal (“VCAT”) established under the Victorian Civil and Administrative Tribunal Act 1998. VCAT deals with many of the administrative review decisions which arise under Victorian law. There is a specific Division of VCAT that handles administrative decisions, and this Division has two Lists which hears these kinds of matters: 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). Usually, the relevant legislation under which the decision was made will also need to state that VCAT is able to hear administrative reviews of the matter in question. VCAT has a list of the types of applications which can be made.

Supreme Court of Victoria

Decisions of VCAT itself and of other Victorian tribunals can be subject to administrative review in the Supreme Court of Victoria. Judicial reviews are most often heard in the Supreme Court. Unlike VCAT, the Supreme Court has general jurisdiction to hear administrative review matters. The Supreme Court has four main orders which 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 forcing the original decision maker to do something) and an injunction (an order forcing the original decision maker not to do something they would have done).

Victorian Ombudsman Service

Another way of challenging a decision made pursuant to legislation by government or regulatory bodies in Victoria is to lodge a complaint with the Victorian Ombudsman. Whilst 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, and will refer you back to them if you have not done so prior to bringing a complaint to the Ombudsman.

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