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 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 which allows them to make such administrative decisions. Decisions by private individuals or corporations are not able to be reviewed.
Only decisions which are ‘administrative’ in nature may be reviewed. Examples of decisions which are not ‘administrative’ include:
Examples of administrative decisions
Some examples of decisions which are administrative in nature and therefore subject to review include:
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:
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.
What will be the Outcome of the Review?
Where an administrative review is sought by the State Administrative Tribunal or the Administrative Appeals Tribunal, the tribunal may order that the original decision:
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.
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.
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.
