A decision is an outcome that is handed down from a government agency or department to a person. Decisions can be wide-ranging with common examples including rejected visas, rejected license applications and failed claims for welfare support. An individual can appeal an administrative decision via two main methods: merits review and judicial review. These are two separate processes with different eligibility requirements, and which result in different outcomes.
Merits review
A merits review will usually be the first method of appeal. The basis of review is that on the merits of the case, a different decision should have been made. This means that the new decision-maker will examine the facts of the original decision and determine what is correct and lawful. Take for example Patrick who has applied for welfare support but has had his claim rejected. If after looking at all the evidence, the review body decides that Patrick lawfully complied with all of the criteria in the Social Security Act 1991 (Cth), then factually and logically, the only correct decision is to allow the appeal.
Determining your right to a merits review
It is important to note that the right to a merits review is purely statutory. Statute law created by parliament establishes and governs every government department. Therefore, to initiate an appeal, the responsible legislation that governs the department must explicitly state that a merits review of a decision is permitted. We’ll refer back to the above example. If Patrick would like to have the merits of the original decision reviewed, he must first find authority that it can be done. Part 4 of the Social Security (Administration) Act 1999 (Cth) explains that decisions by social security officers can be appealed internally first. If that doesn’t result in a preferred decision, then Part 4A states that the decision can be reviewed externally in the Administrative Appeals Tribunal (AAT). And finally, a person may appeal the tribunal decision to a court.
What is the process?
The merits review process is often quicker and cheaper than initiating court proceedings. You will note from the example, that a merits review body can conduct reviews internally or externally. An internal review means that a superior or a specialist appeals officer within the government department will review the original decision. Depending on the department and the legislation, sometimes the responsible Minister (as the highest ranking official in that department) is able to conduct merits review.
External review is the next step in the appeal process. For Commonwealth departments, the AAT super tribunal is the likely destination of most appeals as it has a wide jurisdiction to hear most matters. Specialist boards and committees can also conduct external review. Each state and territory has its own generalist tribunals to hear matters regarding state or territory government departments. An ombudsman is also a form of external review. The ombudsman can review government decisions but only as a last resort. They are mainly investigative bodies and therefore do not have determinative powers to set aside or replace a decision.
Possible outcomes
After the review is complete, the decision-maker will decide whether the appeal should be allowed. If they believe the original outcome is incorrect, then they can substitute a new decision for the previous one.
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Judicial review
A judicial review of a decision takes place in a court instead of an administrative review body. A court has original jurisdiction to hear such cases – i.e. the matter can be brought before a court if the legislation doesn’t provide for merits review mechanisms. Alternatively, as stated earlier, an individual can appeal a matter from an administrative review body to the courts. Judicial review looks at whether a decision-maker has made errors of law, rather than examining the facts of the matter. To provide an example, an error of law could be that the administrative officer had placed too much emphasis on a specific criterion or had misunderstood, incorrectly interpreted or wrongly applied public policy.
What is the process?
A judicial review is much like any court proceeding and therefore similar preparatory steps will be involved. An appellant will need to show that they have standing (they have sufficient connection to the case to actually bring a matter to the court). They must also show that the court has jurisdiction to hear their case. Generally, at the Commonwealth level, the High Court of Australia, Federal Court and the Federal Circuit Court will have jurisdiction to hear administrative review cases. Meanwhile each state and territory’s highest court will be able to hear matters regarding state government decisions. An appellant must also have sufficient grounds for review.
Possible outcomes
If a court decides that the decision was not wrongfully made, then the original decision will stand. Otherwise a court can quash or prohibit the original decision, declare that a decision is wrong (but not change it), issue an injunction or mandate that the administrative decision maker perform some conduct. A court cannot create and substitute a new decision as is the case with merits review.
Next steps
Administrative law can be highly complex at times especially when dealing with the decisions of multiple people and their reasoning. If you’re still unsure, have a chat to an administrative law expert who can help you.
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