Review of Government decision making

Administrative law is concerned with the review of the administrative actions of Government. In general terms, the courts cannot review the merits of any decision but are limited to determining whether the decision maker has acted fairly, within power and according to law. Merits review of certain administrative decisions is vested in a range of non-judicial bodies.

Review by the courts and tribunals

The courts or tribunals may review administrative decisions or actions. Generally, the courts may only review the legality of administrative decisions or actions, while tribunals can review some decisions on the merits of the decision.

Relevant courts at the federal level are:

• High Court of Australia
• Federal Court of Australia
• Family Court of Australia
• Federal Magistrates Court of Australia

Federal tribunals include:

• Administrative Appeals Tribunal
• Human Rights and Equal Opportunity Commission
• Australian Industrial Relations Commission.

Judicial review under administrative law

A person who wishes to test the lawfulness of a Government decision can seek judicial review of that decision by the courts.

Section 75(v) of the Constitution provides that the High Court has jurisdiction in all matters in which “a writ of mandamus, or prohibition or an injunction is sought against an officer of the Commonwealth’.

Judicial review may also be available in the Federal Court under section 39B of the Judiciary Act 1903.

The Administrative Decisions (Judicial Review) Act 1977 provides for judicial review of the legality of administrative decisions made under Commonwealth enactments.

A person aggrieved by an administrative decision under an enactment can, subject to certain exceptions, obtain reasons for the decision and seek review of the decision by the Federal Court, or the Federal Magistrates Court, on specified grounds. These grounds include a breach of the rules of natural justice, that there was no evidence to justify the decision or the decision maker took an irrelevant matter into account. The court is limited to reviewing whether the decision was made in accordance with law, not its merit.

Merits review

Many Government decisions are subject to independent merits review. In general terms, the purpose of merits review is to decide whether the decision was the “correct and preferable’ decision. If not, a new decision can usually be substituted.

Administrative Appeals Tribunal

The Administrative Appeals Tribunal (AAT), as established under the Administrative Appeals Tribunal Act 1975, has the power to independently review, on the merits, a broad range of administrative decisions made by Commonwealth Government Ministers and officials, authorities and other tribunals.

The AAT has jurisdiction to review administrative decisions in a wide range of areas including social security, taxation, veterans’ affairs, compensation and freedom of information. The AAT can only review decisions over which it has specifically been given jurisdiction. This is generally conferred by the legislation under which the original decision was made.

The AAT’s jurisdiction list (of the decisions it may review), may be found here.

There are also specialist tribunals dealing with particular topics, for example, the Migration Review Tribunal, the Social Security Appeals Tribunal, the Refugee Review Tribunal and the Veterans’ Review Board.

Other avenues of review of Commonwealth decisions

Apart from review by the courts or the Administrative Appeals Tribunal, individuals can obtain review of administrative actions and decisions of Australian Government agencies by a range of other means:

Ombudsman

The Ombudsman Act 1976 empowers the Commonwealth Ombudsman to investigate the administrative actions of Australian Government agencies. This can be done either in response to a complaint from a member of the public, or under the Ombudsman’s “own motion’ power (section 5). The Ombudsman acts to safeguard the public in its dealings with Australian Government agencies and to ensure that public administration is accountable, lawful, fair, transparent and responsive.

The Ombudsman has the power to compel the production of documents and to interview officers about their actions (section 9), although most investigations are conducted in a cooperative framework without the need to exercise formal powers.

If the Ombudsman thinks that there has been an error or deficiency in the actions of an agency, he or she can recommend that the agency take a specified action to remedy the error or deficiency (section 15). If the Ombudsman thinks that an agency has not taken adequate steps to redress any defective administration, he or she can report to the Prime Minister or Parliament (sections 16 and 17).

Merit Protection Commissioner

The Merit Protection Commissioner assists agencies to meet the requirements of the APS Values and APS Code of Conduct through the administration of the statutory review of actions scheme and the performance of statutory and other functions as are prescribed by section 50 of the Public Service Act 1999 and the Public Service Regulations 1999.

Workplace Authority

The Workplace Authority has a role under the WR Act to assist employers and employees to make all types of workplace agreements which are available under that Act.

The OEA is responsible for:

• accepting lodgement and issuing receipts after lodgement of all workplace agreements, including in accordance with transmission of business provisions under the WR Act;
• assisting employers and employees with content in workplace agreements;
• providing agreement making advice to employers, employees and industrial organisations; and
• providing advice appropriate to an employer’s specific needs.

Freedom of Information Act

Decisions under the Freedom of Information Act 1982 are subject to internal review and external merits review in the Administrative Appeals Tribunal (sections 54 and 55).

The Act also provides an individual with a right to apply to an agency to have personal information about him or her that is incorrect, out of date or misleading either amended or annotated (section 48). This corresponds to an equivalent right under principles 6 and 7 of the information privacy principles in section 14 of the Privacy Act 1988.

Privacy Act

The Privacy Act 1988 requires Australian Government agencies to handle personal information in accordance with the 11 information privacy principles set out in section 14 of the Act. Failure to comply with any of the principles gives an individual affected by the failure a right to complain to the Office of the Privacy Commissioner. The Privacy Commissioner has extensive statutory powers to investigate complaints and to determine remedies if appropriate.

Human Rights and Equal Opportunity Commission

Australian Government actions may also be the subject of review by the Human Rights and Equal Opportunity Commission on human rights or anti-discrimination grounds.