Administrative Review in WA
Administrative review in WA refers to the process of seeking to have a ruling made by a government body, organisation, official or representative, reconsidered. Only decisions by government departments and government-related authorities are subject to administrative review, as well as some non-government authorities, provided they are exercising a public statutory power – in other words, there is a law that allows them to make such administrative decisions. Decisions by private individuals or corporations are not able to be reviewed.
Only decisions that are ‘administrative’ in nature may be reviewed. Examples of decisions that are not ‘administrative’ include:
- criminal cases- whether to prosecute in a criminal case
- legislative matters – the making of laws
- employment matters – whether to hire an employee
- contractual decisions – whether to enter into a contract.
Some examples of decisions that are administrative in nature and therefore subject to review include:
Examples of administrative decisions
- ASIC’s declaration that an applicant is not ‘fit and proper for the purposes of obtaining a financial services licence
- a minister’s decision to refuse a visa
- Centrelink’s decision to stop paying benefits
- a council’s 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 of administrative review
An administrative review in WA decision may only be reviewed if the legislation on which it is based allows it. These laws are called ‘enabling’ laws, because they grant the tribunal in question the jurisdiction to act.
When an applicant brings a matter before a tribunal, it must state the section of the act or regulation which 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.
Where are Administrative Decisions Reviewed?
- There are four main avenues for administrative review in Western Australia:
- the State Administrative Tribunal (Western Australia) (SAT) – reviews state government-related administrative decisions
- the Commonwealth Administrative Appeals Tribunal (AAT) – reviews federal government-related administrative decisions (and some state decisions, where the legislation specifically provides)
- the Law Courts – known as a judicial review – where a judge reviews the administrative decision
- the Ombudsman of Western Australia – primarily reviews complaints made about administrative processes of state-government-related entities, the Western Australia Police, local governments and public universities. It is an avenue of last resort, as the Ombudsman will only review decisions that are not able to be reviewed by tribunals or courts.
How are Administrative Review in WA Decisions Reviewed?
The State Administrative Tribunal and the Administrative Appeals Tribunal have the ability to review a decision ‘on the merits’. This means that the tribunal can review the matter from scratch – re-evaluate evidence, draw different conclusions, make new enquiries – and come to a different decision on the facts presented. A review can only be made ‘on the merits’ if the enabling legislation grants the tribunal the power to do so.
Where judicial review of an administrative decision is sought, the Court is not entitled to make a review ‘on the merits’. Rather it can only decide whether the method by which the original decision-maker made the decision was lawful. If the Court concludes that the process was indeed lawful, then it cannot overturn the original decision, even if the Court itself would have come to a different conclusion on the facts.
The Ombudsman acts on complaints made about administrative decisions and initiates an investigative process. The Ombudsman can review the original decision from the beginning, as with a ‘merits’ review before the Tribunals.
Related Content
Stamp Duty in Western Australia
Obligations of Real Estate and Business Agents (WA)
Sexual Harassment in Western Australia
Busselton Civil Lawyers | Expert Civil Solicitors
Manjimup Civil Lawyers | Expert Civil Solicitors
Adult Guardianship (WA)
Commercial Leases (WA)
Perth Civil Lawyers: Experienced Dispute Resolution Solicitors