Administrative Review in WA

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Some examples of decisions which are administrative in nature and therefore subject to review include:

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• 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.

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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.

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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.

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There are four main avenues for administrative review in Western Australia:

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• 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 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.

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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.

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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.

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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.

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Where an administrative review is sought by the State Administrative Tribunal or the Administrative Appeals Tribunal, the tribunal may order that the original decision:

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• be affirmed
• be varied
• be set aside, and substitute a new decision, or order that the original decision-making authority review the matter according to the Tribunal’s directions
• be allowed to stand, and the application for administrative review dismissed.

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An application for judicial review of an administrative decision may have many and varied outcomes. In addition to those available to the tribunals, the courts may also issue injunctions to stop proceedings, declarations on legal matters within proceedings and orders requiring a tribunal to exercise power in a certain way.

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The Ombudsman’s power to resolve a complaint brought to its attention is less formal than those available to the tribunals and courts. Following an investigation into a complaint, the Ombudsman will prepare a report in which they make recommendations to the original decision-making body. It has no power to direct that the recommendations be complied with, though they generally are.

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If you are not satisfied with a decision made by your local, state or federal department and are considering an administrative review, you should seek legal advice about whether the decision is able to be reviewed and the best way of doing so. You can arrange to speak with one of our experienced civil lawyers by calling us at Go To Court Lawyers on 1300 636 846.

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