Introduction

Administrative law is an area of law that you will need to rely on if you wish to challenge a
decision or action of a government official, department or authority. Administrative law may also
apply when the person whose decision you wish to challenge is not a government officer but is
exercising public power (e.g. a power granted to a person by a statute). ecisions or actions
governed by administrative law are called (in this chapter) administrative decisions.
Administrative law usually only enables decisions (or actions) that are administrative in nature to
be challenged. In other words, there are other types of decisions made in government that are
not governed by administrative law. !he following are examples of decisions that may not be
governed by administrative law"
legislative decisions (e.g. the ma#ing of laws$ however, delegated legislation may be reviewable
on a similar basis to administrative decisions)$
broad policy decisions (e.g. deciding to reduce a grants program)$
employment decisions (e.g. decisions to hire an employee$ however, administrative law may
apply to public service misconduct decisions)$
criminal cases (e.g. decisions to prosecute$ however, administrative law does apply to
investigations)$ and
contract decisions (e.g. decisions by government to enter into a contract$ however, tender
processes may be sub%ect to some administrative law principles).
&xamples of administrative decisions that you may be able to challenge using administrative law
principles and mechanisms include decisions"
by a council to compulsorily ac'uire land$
by A(I) to declare a person not fit and proper to hold a financial services licence$
by a minister not to grant a visa$
of )entrelin# to cease paying a benefit$ and
to impose conditions on a licence.
Administrative decisions are usually made by government officers, but may also be made by
people who wor# in corporations or alone. If the decision involves statutory power then it is li#ely
to be regulated by administrative law.
)hallenging administrative decisions
!here are four main types of review of administrative decisions"
a reconsideration by the original decision*ma#er$
a specific statutory right to review of the decision on the merits (internally or by a tribunal such
as the +ictorian )ivil and Administrative !ribunal)$
%udicial review by a court$ or
complaint to a body such as the relevant ombudsman.
!here are also appeal mechanisms in administrative law. ,or example, an appeal from a tribunal
decision on a 'uestion of law may be made to a court if the legislation allows for it, or a tribunal
may conduct a form of appeal against a decision ma#er-s decision. Always chec# the
legislationfor the specific type of review or appeal that may be available.
!his chapter provides a brief overview of reconsideration, merits review, %udicial review, and
.mbudsman review, and describes the steps you should ta#e if you are considering challenging
an administrative decision. &ach type of review is discussed in more depth in )hapters /0./"
1udicial 2eview, /0.3" Administrative Appeals !ribunals and /0.4" .mbudsman.
2econsideration
As long as the original decision*ma#er has not exhausted their power, they may be able to
reconsider their decision. Always consider this option first, sub%ect to any time limits that might
restrict other forms of review. If you are not sure, you may as# the decision*ma#er whether they
are prepared to reconsider the matter. 5enerally spea#ing, if more than one person-s rights are
at sta#e, reconsideration may not be possible. ,or example, if there are limits to the number of
licences a decision*ma#er may grant, and a licence has been granted to someone else instead of
you, reconsideration of your matter might not be available, because it might impact on their right
to that licence.
)hec# the case of 6inister for Immigration and 6ulticultural Affairs v 7hardwa% (/88/) /89 ):2
;9< if you want a decision*ma#er to reconsider their decision, if the decision*ma#er may have
made %urisdictional errors.
2eview on the merits
A review on the merits generally means that a person will loo# again at a decision that has been
made and ma#e what they thin# is the correct and preferable decision instead. ()hec# the
relevant legislation for the limits of the merits review.) !he person conducting the review will
usually be able to consider any additional material you wish to provide to them and come to their
own decision about the facts of the case. !hey will then be able to substitute their own decision
for the decision originally made.
=ou will only have a rightto a review of an administrative decision on the merits if an Act or
2egulation gives you that right.
A right of review on the merits can be a very valuable right. If you are unhappy with an
administrative decision or action you should carefully read the Act or 2egulation under which the
decision was made to see if it gives you an express right of review. (Also chec# the Administrative
Appeals !ribunal Act 09<;()th) (AA! Act) if the decision is a )ommonwealth decision$ and the
+ictorian )ivil and Administrative !ribunal Act 099> (+ic) (+)A! Act) if the decision is a +ictorian
decision.)
(ome laws give wide rights of merits review, while others give none. !he right of review may be
to a higher official, a minister, a specialist tribunal (within or outside the departmental framewor#),
or to an independent general tribunal, such as the )ommonwealth Administrative Appeals
!ribunal (AA!) or the +ictorian )ivil and Administrative !ribunal (+)A!).
.ne of the most common rights of review is a right of review to a general tribunal such as the AA!
or +)A!. Appeals of this nature are dealt with in greater depth in )hapter /0.3" Administrative
Appeals !ribunals.
1udicial review
1udicial review is review by a court, which determines whether the decision complained about is
unlawful and of no effect. !he court then exercises its discretion regarding whether or not to grant
relief. !he court usually has no power to review the decision on its merits or determine whether
or not it was a decision the court would have made. !he court only has the power to review the
decision to see whether the decision*ma#er made the decision lawfully. ?owever, some of the
grounds of review do re'uire some consideration of the merits of the case (e.g. if the decision*
ma#er too# into account an irrelevant consideration, or if the decision is manifestly unreasonable).
And occasionally, when %urisdictional error is alleged, the court may need to ma#e findings of fact.
1udicial review vs merits review explained
.ne of the most difficult things to understand in administrative law is the difference between
%udicial review and merits review. It is important to understand this difference when analysing the
decision you wish to challenge, and the potential basis for such a challenge. In Administrative
@ower and the :aw (,iona 6cAenBie, /88<, pp. 0/C03), the difference has been explained by
way of analogy as follows"
!he decision ma#er stands poised to ma#e an administrative decision. 7efore ma#ing the
decision, they must embar# on a %ourney down a path which leads to an orchard. !rees from
within the orchard-s boundaries contain a variety of fruits. Any fruit may be pic#ed C any decision
may be made C as long as it is from a tree planted within the boundaries of the orchard.
(!his represents discretion.)
!here is only one lawful path to the orchard. If the decision ma#er digresses, strays off the path,
and pic#s some fruit from a tree outside the path, it will not be fruit from a tree in the orchard D If
the decision ma#er strays off the path, they will not be ma#ing a lawful decision D
Ehat if a fruit from a tree outside the orchard is pic#edF If challenged, the reviewer (whether a
court or tribunal) may throw away the fruit (set aside or 'uash the decision). !he court can only
throw it away if it is unlawful (outside the orchard). !he merits review decision ma#er can throw it
away for any reason (i.e. fruits from inside and outside the orchard may be discarded). !he merits
review decision ma#er D may select a new fruit for consumption, after wal#ing down the path to
the orchard in order to find it. If the reviewer is a %udicial review decision ma#er, that is, a court,
they may order another decision ma#er to start the process again and choose a new fruit. !he
court on %udicial review will generally not stand in the shoes of the decision ma#er and wal# down
the path in order to choose a new fruit D
((ee the boo# for a useful picture of this analogy. (ee www.adminlaw.com.au to order the boo#.)
)omplaint to the .mbudsman
In addition to the above forms of review, you can often complain to a complaints body such as the
relevant .mbudsman. ?owever, an .mbudsman is usually a last resort C you should exhaust
other merits or %udicial review options first. !he .mbudsman investigates complaints about
decisions of government officers and agencies, as well as systemic issues, and has a discretion
as to whether or not any complaint should be investigated.
It is best to try to solve the problem directly with the relevant agency first before approaching an
.mbudsman. After the investigation, the .mbudsman will ma#e a report but cannot directly
overturn the original decision or substitute their decision for that under review. !he functions of
the state and )ommonwealth .mbudsmen are discussed in )hapter /0.4" .mbudsman.
Gote"!here are also industry*based ombudsmen$ however, if they are not set up by a statute,
they are not part of the administrative law framewor#.