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Government Decisions

On this page

What is Administrative Law

Administrative law is concerned with challenges to a decision or action of a government official, department or authority. It may also apply when the person whose decision you wish to challenge is not a government officer but is exercising a power granted to them by a statute.

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General Information

If you want to get a government decision changed, including having any conditions removed or changed, then we suggest that you:

  1. Act quickly.
  2. Try to find the name and the position of the officer responsible for work on the case and try to discuss the case with the officer who made the decision.
  3. Work out whether it is a state decision or a federal decision. If it is unclear whether the matter is a federal or state matter, then contact the Commonwealth Ombudsman for advice.
  4. Carefully read the legislation the decision was made under.
  5. Try to obtain reasons for the decision.
  6. Select the method of review.

Before you reach the stage of approaching the ombudsman, you should attempt to resolve the problem by approaching the agency first.

You should also consider seeking legal advice that is not in any way connected with the agency. Particularly when the decision has a substantial impact on you.

When you carefully read the legislation, you may find special provisions about your right to have the decision reviewed or your right to appeal. If the legislation doesn't have these then your only choices for review will be to seek judicial review of the decision in the courts or to make a complaint to the State or Commonwealth Ombudsman, appeal to a specialist tribunal or seek judicial review by the Federal Circuit Court, The Federal Court or the High Court.

People affected by certain decisions of the Commonwealth Government or its agencies may appeal to the Commonwealth Administrative Appeals Tribunal (AAT). Similarly, people affected by certain decisions of the NSW Government or its agencies may appeal to the Administrative Decisions Tribunal or complain to the NSW Ombudsman, appeal to a specialist tribunal or court or seek judicial review by the Supreme Court of NSW.

The Law Handbook published in NSW has an informative practical chapter Complaints (free).

Judicial Review of Commonwealth Decisions

The Federal Court and Federal Circuit Court may review most administrative decisions under Commonwealth laws.

They may can do this under the Administrative Decisions (Judicial Review) Act 1977 or based on Common Law principles.

The grounds on which a decision may be reviewed under the Act are:

  • that there has been a breach of the rules of natural justice in the making of the decision
  • that procedures that should have been observed in making the decision were not observed
  • that the person who made the decision did not have jurisdiction to make the decision
  • that the decision was not authorised by the Act under which it was made
  • that the decision involved an error of law, whether or not the error appears on the record of the decision
  • that the decision was induced or affected by fraud
  • that there is no evidence or other material to justify the making of the decision
  • that the decision was otherwise contrary to law.

There are many factors that the Courts take into account under Common Law - though, in Commonwealth matters, most of these are covered by the list above. For more information see Judicial Review of NSW decisions.

These include whether or not required procedures were followed, was the individual shown procedural fairness and given a fair and unbiased hearing, did the right person make the decision, did the agency only consider matters that the Act said were to be considered, was there a hidden agenda that was being served or was the decision unsupportable on any of the evidence.

AAT

Administrative Appeals Tribunal

www.aat.gov.au

The AAT independently reviews a wide range of administrative decisions made by the Australian government and some non-government bodies. Both individuals and government agencies use its services.

It is more informal than most Courts. If the matter is suitable to be determined by the AAT, then they try to help parties resolve their differences using mediation and other methods.

Applying to the AAT explains each stage of an application to the AAT for assistance.

Federal Court

www.federalcourt.gov.au

Telephone: (02) 9230 8567

General information for the public This includes information about how cases are started in the Court, the assistance that is available for this and what is involved in attending Court.

The public are encouraged to obtain legal advice before considering issuing proceedings themselves in the Federal Court. Few people attempt to run a case here without a lawyer and there is a risk that if you fail that you may have to pay tens of thousands (or even hundreds of thousands of dollars) of legal costs to the other party.

Federal Circuit Court

www.federalcircuitcourt.gov.au/

Telephone: 1300 352 000 or (02) 9230 8567

You should get legal advice before making a decision about what to do or applying to the Court. A lawyer can help you understand your legal rights and responsibilities and explain how the law applies to your case.

If you decide to proceed yourself then you should contact the Court to discuss the documents and procedures involved.

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Federal Ombudsman' Office

www.comb.gov.au

The Office considers and investigates complaints from people who believe they have been treated unfairly or unreasonably by an Australian Government department or agency. These include the Australian Taxation Office, Centrelink, Child Support Agency, and Department of Immigration and Citizenship.

They aim to resolve complaints impartially, informally and quickly.

The Office cannot override the decisions of the agencies or issue directions to their staff. Instead, they resolve disputes through consultation and negotiation. If necessary they will make formal recommendations to the most senior levels of government.

NSW Ombudsman's Office

www.ombo.nsw.gov.au

The NSW Ombudsman is an independent and impartial watchdog. Their role is to make sure that the NSW agencies they watch over fulfil their functions properly.

They work in a similar way to the Federal Ombudsman's Office.

Judicial Review of NSW Decisions

The Supreme Court may review most administrative decisions under NSW laws.

They may can do this based on Common Law principles. Most people choose instead to apply to the Administrative Decisions Tribunal. It is very important that you get legal advice before making a decision about what to do or applying to the Court. A lawyer can help you understand your legal rights and responsibilities and explain how the law applies to your case.

The grounds considered by the Court on Common Law principles include considering whether or not required procedures were followed, was the individual shown procedural fairness and given a fair and unbiased hearing, did the right person make the decision, did the agency only consider matters that the Act said were to be considered, was there a hidden agenda that was being served or was the decision unsupportable on any of the evidence.

NSW Civil and Administrative Tribunal (NCAT)

www.ncat.nsw.gov.au

The Tribunal has the power to review decisions made by New South Wales government agencies in many areas of government

These include freedom of information, privacy and licensing matters relating to firearms, the security industry, passenger transport and the building industry.

Freedom of Information

Go direct to an agency to request copies of documents under the freedom of information (FOI) laws. They will advise you if any special form is required or whether it is sufficient to make the request by letter. You need to be give enough information so that the relevant documents can be identified from the millions of records that the Government keeps.

After a FOI request is made, government agencies must decide whether to give access to information, and whether that access should be partial or full access. An agency does not have to give access to exempted material.

There are always charges for making a FOI request.

To maximise the chances of obtaining access on the first request, some strategies include:

  1. Try asking for the document before making a formal FOI application.
  2. Narrow the request so that it is not voluminous. For example, ask to talk to someone in the relevant area about what you want to see, ask to see a list of files on the subject, or ask to see a list of the types of documents usually held by the the agency. You can also find out more about the information they keep from looking at their annual report.
  3. If a document is exempt, ask if you can have it with the exempt matter deleted. This will help you get an impression of the contents.
  4. Consult the Ombudsman if any response or service is not adequate.
  5. Act promptly on any right you have to request that the decision be reviewed by the agency. (You will be informed of that right when you are given the response to your request).
  6. If you are still not satisfied then you may apply to the Administrative Appeals Tribunal for Commonwealth issues or the Administrative Decisions Tribunal for State issues.

NSW Office of the Information Commissioner

www.oic.nsw.gov.au

Telephone: 1800 463 626


Australian Human Rights Commission

www.hreoc.gov.au

The Commission works towards an Australian society where the human rights of all are respected, protected and promoted.

Their work includes:

  • providing education and raising public awareness about human rights
  • handling complaints of discrimination and breaches of human rights
  • researching human rights issues and contributing to policy developments
  • legal advocacy on human rights issues
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Indigenous Human Rights

www.ihrna.info

Indigenous Human Rights Network Australia (IHRNA) is a network of people who advocate and promote the awareness of indigenous human rights in Australia.

They facilitate access to information, expert advice, and the sharing of best practice solutions for indigenous people and peoples from a human rights approach.

Anti-Discrimination

Anti-Discrimination Board of NSW

www.justice.nsw.gov.au/adb

Their role is to promote anti-discrimination and equal opportunity principles and policies throughout NSW.

They have an enquiry service for people who want to know about their rights or responsibilities under anti-discrimination law.

They also accept complaints of discrimination, investigate complaints and conciliate complaints when appropriate.

ADB Publications include:

Office of the Privacy Commissioner

www.privacy.gov.au

The Privacy Act regulates the way in which personal information can be collected, the accuracy of the information, how it is kept secure, and how it is used and disclosed. It also provides rights to individuals to access and correct the information organisations and government agencies hold about them.

OPA has an extensive collection of information on:

  • your rights and how to protect your privacy
  • the obligations of an organisation under the privacy laws and guidelines on how to do this
  • the complaint process - including a Complaint Checker

The OPC investigates and conciliates to resolve disputes. You will need your own legal advice to take somebody to Court if your rights are breached.

Privacy NSW

Office of the NSW Privacy Commissioner

Privacy NSW web site

The main work of Privacy NSW concerns privacy issues with NSW Government agencies.

They are also concerned with privacy issues at work, at home, in the street, in business and health information.

Acts, Regulations, Rules & Forms

Are you looking for detailed information like this, or contact details for any of the bodies mentioned on this page. If so, then start on our Administrative Law for Lawyers page.

If it isn't there, then start on our Finding Detailed Legal Information page.

Please read our warning on that page "Be careful using these resources".

The Law is not always as straightforward as it appears. We have not included any information about when and how to use that information or any traps. We assume that the Lawyers will know this.

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