Administrative Review (WA)
Administrative review is the review by a court or tribunal of a decision made by a government department or agency. Administrative review can occur at a state or at a federal level. This page deals with administrative review in Western Australia.
Merits review vs judicial review
Administrative review is conducted in two ways. Some decisions are subject to merits review and others are subject to judicial review.
Merits review is the review of a decision ‘on the merits’. This is where a court or tribunal looks at the original decision and considers all the evidence and material on which it was based. It then decides whether the original decision was the correct and preferable one.
Judicial review is the review of a decision based on whether the decision was made lawfully. A court conducting judicial review will assess whether the original decision-maker made an error or law. An error of law may have occurred for a range of reasons including that the decision-maker did not accord a person procedural fairness or did not take into account a relevant consideration.
What decisions are reviewable?
Decisions by government departments and government-related authorities are subject to administrative review, as well as decisions by some non-government authorities, provided they are exercising a public statutory power.
Decisions by private individuals and corporations are not reviewable. Only decisions that are ‘administrative’ in nature may be reviewed.
Some examples of decisions that are administrative in nature and therefore subject to review include the following.
- ASIC declarations that an applicant is not ‘fit and proper for the purposes of obtaining a financial services licence
- an Immigration Minister’s decision to refuse a visa
- a Centrelink decision to stop paying benefits
- a council decision to order the destruction of a dangerous dog
- a licencing authority’s decision to refuse a licence
- a council’s decision to purchase land through compulsory acquisition.
Limitations on administrative review
An administrative decision may only be reviewed if the legislation on which it is based allows for this. These laws are called ‘enabling’ laws because they enable the court or tribunal in question the jurisdiction to review the decision.
When an applicant applies for administrative review, it must state the section of the act or regulation that allows the tribunal to review the decision. If the act on which the decision is based does not specifically state that administrative review to that tribunal is allowed, then the tribunal has no power to act.
Administrative review in WA
There are four main avenues for administrative review in Western Australia.
At the state level, the State Administrative Tribunal (SAT) reviews state government-related administrative decisions and the Ombudsman of Western Australia investigates complaints about state government processes and decisions.
At the federal level, the Commonwealth Administrative Appeals Tribunal (AAT) reviews federal government-related administrative decisions. It may also review some state decisions, where the legislation specifically provides for this.
Judicial review of government decisions is conducted by the courts.
The Ombudsman WA also reviews government decisions when it receives, investigates and resolves complaints about government agencies or departments.
Administrative review by SAT
The SAT has the power to review decisions by a range of state government departments and agencies. SAT reviews decisions on the merits.
Decisions that may be reviewed by SAT include decisions about child protection, decisions about working with children checks, decisions about building and construction, decisions about government housing and decisions about firearms and security licences.
After reviewing a decision, SAT may make an order that:
- affirms the decision
- varies the decision
- sets aside the decision, and substitutes it with a new decision.
Administrative review by the AAT
The AAT conducts administrative review of Commonwealth government decisions. The decisions it reviews include decisions by Centrelink, decisions about child support, decisions about migration and decisions about workers’ compensation.
The AAT reviews decisions on their merits.
Judicial review by the courts
In Western Australia, judicial review of state government decisions is conducted by the Supreme Court.
Judicial review of Commonwealth government decisions is conducted by the Federal Court and Federal Circuit and Family Court of Australia (FCFCA).
The Ombudsman WA has a range of functions including investigating and resolving complaints about state government agencies, statutory authorities and the WA Police. The complaint should contain all the details about what happened, why the decision was wrong and what outcome you are seeking,
A person can make a complaint to the ombudsman by post, fax on online.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.