The area of law dealing with complaints against government decisions is called administrative law. The purpose of administrative law is twofold:
- To enforce limits to government power
- To enable individuals to call government bodies and agencies to account in their decision making
Given the complexity of our system of government, many government decisions are delegated to government departments and agencies. Unlike Parliament, they are not directly accountable to the people. Administrative law is therefore necessary to ensure accountability of the administrative actions and decisions of government and its departments.
Before 1975, a person wishing to dispute a government decision had to rely on common law remedies (such as certiorari, prohibition and mandamus) and equitable remedies (e.g. injunction and declaration) which were only available through the courts.
Since 1975 a number of alternative remedies have been introduced at the Commonwealth level to improve access to review of Commonwealth government decisions by individuals.
Not all government dealings can be challenged under administrative law. For example, policy decisions, such as a decision to raise taxes or conscript troops for war, are excluded from administrative review. Governments are accountable for these sorts of decisions only at election time. However, the systems set up to administer these polices (for example, a taxation assessment system or a call up system) are subject to the rights of individuals to seek administrative appeal or judicial review. In other words, a person does not have the right to contest the policy as a whole but to contest the implementation of the policy as it applies to them as an individual.
Generally there are both legal and non-legal means of dealing with complaints against government departments.
The non-legal option is to request an investigation of your complaint by the relevant Ombudsman. The Commonwealth Ombudsman has jurisdiction to deal with complaints concerning Commonwealth government departments. Complaints about South Australian government agencies are dealt with by the South Australian Ombudsman (see The South Australian Ombudsman).
Having a decision reviewed legally involves taking the matter to a relevant Tribunal and/or Court. The process for Commonwealth matters and State matters is significantly different and will be discussed in further detail in the following sections.
As a Minister or head of a department cannot make all of the decisions in that department it is normal to delegate those decisions to officers, often at a minor level within the department or agency. It would be unreasonable to grant total decision making powers to lower level officials and usually only limited powers are granted to a person. Historically, many cases have argued whether the exercise of powers can be granted to the officer who has made the decision.
At the present time, the expansion of government has seen an increase in the number of decisions being made with the decision making process being controlled by departmental guidelines or manuals that contain detailed rules interpreting the terms of the statute. Under freedom of information laws these manuals must be made available to the general public, see Freedom of information. It is often useful to obtain these manuals when considering any application for review.
Is the decision a Commonwealth or State government one?
It is important to know whether a decision was made by either the Commonwealth or State governments, otherwise a lot of time may be wasted by complaining to the wrong body. For example, social security payments are all administered by Centrelink, a Commonwealth government agency, whereas the Housing Trust is a State Government agency. If there is any doubt the office of the Commonwealth Ombudsman or the State Ombudsman will be able to advise which body is responsible.
Under the common law (and prior to 1975 reforms) there was no general right to obtain reasons for a government department's decision. Obtaining the reasons for a decision can help identify if any errors were made and whether a challenge is possible or likely to succeed. Alternatively, it may also help explain to a person affected by the decision why it was correct.
When considering a challenge to a government decision it is generally regarded as an important first step to obtain the reasons for the decision. This is not always easy in situations where many standard notices are generated by computer programs.
Obtaining a copy of the decision
The first stage of attempting to find the reasons is to discuss your request with the relevant government body. This may include the officer who made a decision (such as the Authorised Review Officer named in a Social Security decision) or the officer who signed the letter advising you of a decision.
Orders for discovery
It may be necessary to issue legal proceedings to obtain more information from the administrative body about its actions - for example, by seeking an order for the discovery of documents (that is, obtaining access to the government's file and other relevant documents).
These steps may be answered by the government with a claim that the documents are subject to Crown privilege (that is, to reveal documents in its possession would irreparably harm the community's interests). This claim is subject to court scrutiny and courts in recent years have shown increasing reluctance to uphold such claims by government. However, discovery procedures and claims of Crown privilege can be slow and time consuming.
Ombudsman review of decisions not to release information
Not being able to obtain reasons may constitute a basis for a complaint to the Ombudsman, who may determine that it is fair in all the circumstances that reasons should be given.
Statutory obligations to provide reasons
There are also a number of areas where there is a statutory obligation to provide reasons for decisions. Many Acts of Parliament (primarily Commonwealth, but increasingly also State Acts) now require that reasons for decisions be provided. This obligation will of course only apply to the specific decision covered by the Act.
There are also general powers to obtain reasons for decisions. For Commonwealth government decisions, the most common of these is under the Administrative Decisions (Judicial Review) Act 1977 (Cth) [s 13]. Not only is there an enforceable right to obtain reasons for a decision, but those reasons for the decision then constitute the basis upon which a review application can be argued.
There are several limitations on the obligation to supply reasons [s 13A]. A statement of reasons may omit information relating to the personal or business affairs of a person (other than the person making the request) where it is information:
- supplied in confidence;
- the publication of which would reveal a trade secret;
- supplied complying with a duty imposed by an Act;
- whose publication is forbidden by secrecy laws.
Where such an omission occurs, a reason must be given [s 14]. In addition, the Attorney-General may give a certificate stating that certain matters cannot be disclosed as they are contrary to the public interest where:
- disclosure would prejudice Australia's security, defence or international relations;
- disclosure would reveal deliberations or decisions of Cabinet;
- the situation is one where Crown privilege can be claimed in civil proceedings.
Where information is omitted, a reason must also be given.
There is no equivalent general right to obtain reasons for decisions made by State government agencies. Individual Acts dealing with specific decisions may give a person a right to obtain reasons for a decision.
As with a complaint to a business or other organisation, a person who is unhappy with a government decision should first try to telephone or write to the officer responsible for the decision. It may be possible to have a matter resolved satisfactorily without having to engage in formal correspondence with the Minister or the department.
Negotiation is useful to find why a decision has been taken and whether the decision may be reconsidered. However, time limits often apply to applications for review so any rights to appeal a decision should not be forgotten while a person negotiates. Negotiation alone is unlikely to change a decision. Once a decision is made it is generally only altered if it is shown that the decision maker did not have all of the facts.
Many departments have an internal review system so that other officers within the department may reconsider decisions. A person dissatisfied with a decision is often required to use that internal review procedure before other avenues are available. If the decision was made under Commonwealth law, the empowering Act will generally provide the appropriate avenues of appeal.
Options for review
Complaints can be made to the original decision-maker; the responsible Minister or the local member of Parliament.
In addition, complaints can be made to the Ombudsman who also has investigative powers.
There are also options for seeking a review of the decision through administrative tribunals or the courts.
Administrative tribunals (e.g. the Administrative Appeals Tribunal, the Social Security Appeals Tribunal and the Veteran’s Review Board) have the power to review decisions and generally have the same powers as the original decision maker to vary or make new decisions, see Legal System, Tribunals.
Often more than one avenue of review may be available. To determine what avenues are available it is important to look closely at the statute under which a decision has been made. The decision-maker should assist in providing information about review rights. In deciding what type of review to apply for, a number of factors need to be considered. These include the speed and cost of the review, the issues that can be considered by the review body and the powers of that body to remedy defects in the original decision.
Both the Commonwealth and State Governments have Ombudsmans. There are many common features between the two. An Ombudsman is impartial and independent and investigates a wide range of complaints about administrative actions of government departments, local government and other statutory agencies.
The Commonwealth Ombudsman is also the Defence Force, Immigration, Law Enforcement, Postal Industry and Taxation Ombudsman.
The State Ombudsman has introduced a special service that deals with complaints against the hospital system. This service does not replace a patient's right to take civil action in negligence against a medical practitioner or hospital, which must still be pursued through the civil courts.
Either the State or Commonwealth Ombudsman will refer a person if a specialist Ombudsman is available for a particular problem. Any type of complaint about government administration can be brought to the attention of an Ombudsman and there is no charge.
Before contacting the Ombudsman, a person should try to solve the problem by talking or writing to the department or authority concerned. If there is a formal review arrangement within the department this should be used first. A person not satisfied with the response and who considers the agency is wrong in some way should contact the Ombudsman. The complaint should be as specific as possible and provide all relevant information. Where possible, copies of relevant documents should also be provided.
The Ombudsman’s Office can investigate and receive complaints from people who believe that they have been unfairly treated by Commonwealth government departments and agencies (e.g. Centrelink). This includes private contractors delivering services on behalf of the Commonwealth government.
The Ombudsman also acts in the following specialist roles:
- Law Enforcement Ombudsman
In this capacity the Ombudsman nhas a role in the oversight of the Australian Federal Police’s administrative processes associated with complaints handling.
- Defence Force Ombudsman
Can receive and investigate complaints from serving and former members of the Defence Forces or their dependants about offical actions in relation to their service. From 1 December 2016 the Ombudsman’s role has been expanded to include an abuse reporting function for the report of sexual abuse, serious physical abuse and serious bullying and harassment within Defence for those who feel unable to access internal mechanisms within Defence.
- Immigration Ombudsman
In this capacity the Ombudsman has oversight over the full range of functions undertaken by the Department of Home Affairs including powers to review immigration detention cases and facilities.
- Postal Industry Ombudsman
Investigates complaints about Australia Post and registered private postal operators.
- Overseas Students Ombudsman
Investigates complaints about privately registered education providers in their dealings with overseas students.
- Private Health Insurance Ombudsman
Investigate complaints in relation to private health insurance providers.
The Office of the South Australian Ombudsman (now known as Ombudsman SA) was created to deal with complaints against State Government agencies. Its three primary focuses are:
- Complaints – can investigate complaints about State government departments and local government councils
- Freedom of Information review – review decisions made about the supply of public information under the Freedom of Information Act 1991 (SA)
- Protection of whistleblowers– can receive information on a confidential basis from whistleblowers (i.e. people wishing to report improper or illegal actions in State or local government)
In recent years, some 40% of the complaints which have been investigated have been resolved with some benefit to the complainant, the complaint being sustained or reasonably resolved.
Not all government agencies fall within the Ombudsman’s jurisdiction. For example, complaints against the Police (see Complaints against police) and complaints against judicial officers (see Complaints against Judges and other judicial officers) are not dealt with by the Ombudsman’s office.
Before a complaint can be investigated there are five conditions that must be satisfied:
- The agency concerned must be an agency within the jurisdiction of the Ombudsman (e.g. a complaint against Police cannot be investigated)
- There has to be an identifiable administrative act
- It must be within the time limit i.e. 12 months
- The complainant must be directly affected by the act complained of
- There has to be a likely remedy available
The South Australian Ombudsman has additional powers to enter premises and to inspect documents and may, where it appears to be in the interests of an agency or the public, publish a report which will be referred to the relevant Minister. Under s 14A of the Ombudsman Act 1972 the Ombudsman also has the power to conduct a review of the administrative practices and procedures of an agency if it is in the public interest to do so.
- No cost
- Independent from government
- Reports may be published as to systematic issues arising within an agency or with delivery of a government program
- Bad practices may be remedied
- State Ombudsman can offer conciliation as well as investigation
- Cannot provide a quick solution to complex problems
- Complainant has no control over the investigation i.e. the Ombudsman does not act for the complainant specifically and they can refuse to deal with a specific matter
- Decisions are not binding
- Commonwealth Ombudsman can offer investigation only i.e. no conciliation
Who can complain?
People, companies, organisations and associations may complain. However, the person or body that complains must be directly affected by the administrative act which is the subject of the complaint [see Ombudsman Act 1972 (SA) s 15(3a)]. If a person is unable to make a complaint themselves, then a suitable representative of the person, such as a relative, solicitor or support worker may be permitted to lodge a complaint on their behalf [s 15(2)]. Complaints may be lodged through the online complaints form, in writing, by telephone or at a personal interview.
Do time limits apply?
What the Ombudsman can investigate?
The Ombudsman has the power to look into all administrative actions including:
- decisions or recommendations
- refusal or failure to take action
The Ombudsman is empowered by legislation to investigate an administrative act (a decision, or refusal to make a decision, by an officer of a government department, which is subject to review either internally, or externally) on the Ombudsman's own initiative. This power is frequently used.
Limits to the Ombudsman's investigative powers
In contrast the Ombudsman cannot investigate matters involving a judicial or legislative function of government or if the matter involves policy rather than administrative decisions.
This distinction can be difficult to draw.
In Salisbury City Council v Biganovsky (1990) 70 LGRA 71, the South Australian State Ombudsman investigated a complaint about a council policy on calculation of fees to a community group for using council premises. The Court held that the Ombudsman could investigate and report on the way that the council's policy was applied but could not report on or recommend changes to the policy itself.
See also Complaints the Ombudsman cannot investigate
Since 18 December 2017 prescribed child protection complaints may be made to Ombudsman SA and will be taken to be complaints under the Ombudsman Act 1972 (SA) [Health and Community Services Complaints Act 2004 (SA) s 28A]. Previously all complaints relating to child protection went to the Health and Community Services Complaints Commissioner in the first instance.
What is a prescribed child protection complaint?
Prescribed child protection complaints are complaints relating to health or community services that:
- are provided to, or for the benefit of, a child who may be or who has been at risk
- involve a notification (whether mandatory or otherwise) of a suspicion that a child may be at risk
- involve an investigation of a case where a child may be at risk
- are provided to, or for the benefit of, a child who is in the custody or guardianship of the Minister or someone else under the Act
and the provision of the service is an administrative act [s 28A]. However, the regulations may declare a particular complaint to be included or excluded from the definition [s 28A(8)(b)].
An administrative act is an act relating to a matter of administration (including a service, activity or omission listed above) by the Department for Child Protection, or by an employee or contractor on their behalf [see Ombudsman Act 1977 (SA) s 3 and 13(5)].
Complaints may relate to things such as:
- action or inaction by the Department in response to notifications
- communication with families or approved carers during an investigation
- the conduct of child protection officers or other Departmental staff during an investigation
- other matters relating to the conduct of an investigation
- the assessment of children and young people or their parents or guardians
- the quality of medical care or other support services
If the complaint does not concern an administrative act, and is not therefore a prescribed child protection complaint, it may still be made to the Health and Community Services Complaints Commissioner (HCSCC). For example, a child or young person under a custody or guardianship order (or their guardian) may make a complaint to the HCSCC about a privately supplied health service.
The Ombudsman may also refer some complaints to HCSCC according to an administrative arrangement they may have between them from time to time [see Health and Community Services Complaints Act 2004 (SA) s 28A(2)].
If a complaint is made to the Ombudsman, but should have been made to the HCSCC, or vice versa, the complaint will be referred by them accordingly.
Can the Ombudsman refuse to investigate?
The Ombudsman need not entertain a complaint if the matter raised is trivial, the complaint is frivolous, vexatious or not made in good faith, the complainant has not got a sufficient personal interest in the matter or the investigation of the matter is unnecessary or unjustifiable [s 17]. The Ombudsman will not usually investigate a complaint unless the person has already lodged a complaint directly with the Department and given them time to respond. The Department's Central Complaints Unit has an online complaints form and can be contacted on 1800 003 305.
The Ombudsman may investigate a prescribed child protection complaint even if a complainant has another right of appeal or review available to them [see Ombudsman Act 1972 (SA) ss 13(3) and (3b)]. For example, if a complaint may be made to the Health and Community Services Complaint Commissioner SA as well as to the Ombudsman, the Ombudsman may nevertheless proceed to investigate it.
What powers does the Ombudsman have?
When investigating a prescribed child protection complaint the Ombudsman has both the powers under the Ombudsman Act 1977 (SA) [s 13 (3)(d)] and any additional powers from the Health and Community Services Complaints Act 2004 (SA) [s 28A(6)].
The Ombudsman should have regard to the health and community services rights charter and any relevant codes of conduct under the Health and Community Services Complaints Act 2004 (SA) when investigating [s 13(3e)].
For more information about Ombudsman investigations and possible recommendations, see The Ombudsman and Health and Community Services Complaints Commissioner SA.
On first contact, the Ombudsman decides whether to investigate the complaint.
If the matter is investigated, the Ombudsman will usually ask the department, local council or agency concerned to comment on the complaint. Further information may be sought from the person making the complaint, from the department or from some other source. A frequent purpose of an Ombudsman investigation is to obtain a better explanation for a complainant. Once the investigation is completed the Ombudsman will tell both the person who made the complaint and the department what conclusions have been reached.
Investigations are carried out in private. Generally, only the department or authority concerned is told about the complaint. The State Ombudsman can endeavour to conciliate a complaint at any time [Ombudsman Act 1972 (SA) s 17A].
If the Ombudsman finds some fault in the administrative action she or he may make a recommendation to correct it. This can involve reviewing a decision, changing a procedure or some other remedy. In some cases, the Ombudsman can also recommend the payment of compensation for financial loss.
After investigating a complaint the Ombudsman considers whether the action was defective because either it was:
- against the law
- unreasonable, unjust or oppressive
- based on a law or some other rule which is unreasonable or unjust
- improperly discriminatory
- based on a mistake about the law or the facts
- based on irrelevant factors or ignored relevant factors
If an Ombudsman investigation discloses one or more of the above shortcomings in an agency’s actions or decisions, it is most likely to be reported to the agency with a recommendation that agency procedural instructions, policy or training be modified.
If the Ombudsman concludes that the action was not wrong but the person has not received a full explanation of the reasons for the action, the Ombudsman will ensure that the person receives a full explanation.
If the Ombudsman decides that a complaint is wholly or partly justified, the findings are reported to the department or authority concerned. In the report the Ombudsman may recommend [Ombudsman Act 1972 (SA) s 25(2)]:
- that the department or authority should reconsider or change its actions or decision
- that a law, rule or procedures used by the department or authority should be changed
- any other action that the Ombudsman thinks right in the circumstances (for example, that the complainant should receive an "ex gratia" payment for any financial loss).
The Ombudsman's recommendations are usually accepted by the agency concerned. If not accepted the Commonwealth Ombudsman may report to the Prime Minister and to Federal Parliament or the State Ombudsman may report to the Premier and to State Parliament. Both Ombudsmans need to resort to this power only occasionally.
There are some complaints the Ombudsmans do not have the power to investigate. When this happens the person is usually referred to some other source of review.
Limitations on the Commonwealth Ombudsman
The Ombudsman Act 1976 (Cth) specifically prevents the Ombudsman from investigating:
- actions of a government Minister
- actions of police (see complaints against police)
- actions of a judge, magistrate or coroner
- actions of a private person or company
- disputes about employment matters between government and the people who work for it (but the Defence Force Ombudsman can deal with complaints about such matters from Defence Force members)
- other actions of a few government authorities that are specifically excluded by the Ombudsman Act 1976 (Cth)
Limitations on the State Ombudsman
Similar exclusions apply to the State Ombudsman.
Of these the most controversial is the first exclusion concerning actions of a government Minister. The State Ombudsman may investigate 'a decision, proposal or recommendation (including a recommendation made to a Minister of the Crown)' [see Ombudsman Act 1972 (Cth) s 3] . However, if a matter reaches ministerial levels before a complaint is made, it may be too late for the Ombudsman to do anything. The Ombudsman cannot become involved in disputed facts and questions of law which can only be resolved conclusively by a court order. The Ombudsman's opinion may be effective where the law fails to provide an answer in a particular case, but cannot change a statute or declare that provisions of a statute do not apply.
The Ombudsman will not investigate complaints if there are better ways of dealing with it or if an investigation would not be worthwhile. For example, if the person complaining is not directly affected by the administrative act or where the complaint is:
Any person who wishes to appeal against a Commonwealth Government administrative action or decision should first read the Act or Regulations under which the decision was made or action was taken. This will usually outline any rights of appeal given to the citizen and the grounds of any rights of appeal. There is no general rule; some Acts give wide rights of appeal, others have only narrow grounds of appeal and some Acts give no right of appeal at all.
A large number of appeals are heard (either at first instance or as part of a graduated appeal process) by the Administrative Appeals Tribunal (AAT).
Objectives of the Administrative Appeals Tribunal
The objective of the AAT is to provide a mechanism of review that:
- is fair, just, economical, informal and quick
- is accessible
- is proportionate to the importance and complexity of the matter, and
- promotes public trust and confidence in the decision-making of the Tribunal.
Divisions of the Administrative Appeals Tribunal
- Freedom of Information Division
- General Division
- Migration and Refugee Division
- National Disability Insurance Scheme Division
- Security Division
- Social Services and Child Support Division
- Taxation and Commercial Division, and
- Veteran’s Appeals Division
Activities subject to the Tribunal
The jurisdiction of the AAT may either be conferred by express provision in any Commonwealth Act or by a provision in the schedule to the Administrative Appeals Tribunal Act 1975 (Cth). This is a broad test. The interests of community groups and public interest organisations are examined to determine whether their interests are affected.
Decision makers must supply a statement of reasons if asked to do so by a person affected by the decision. This can be obtained without having to file an appeal application.
How to lodge an application
Once a person is satisfied that a matter can be appealed to the AAT they must apply in writing to the AAT Registry. The application may either be on a special form, obtainable from the Registry, or by letter, giving name, address, type of decision being appealed and the date the decision was received. For some kinds of applications there is no application fee (e.g. for most appeals involving allowances or pensions). If a fee is payable the full application fee is $861 (as of 1 July 2014). Under certain circumstances a reduced fee of $100 can be paid (e.g. if a person is receiving legal aid for their application; if they hold a pension or concession card; if they are in prison). The application fee must be paid in full before the application can be accepted as valid.
For further information about application fees and the related forms see the AAT’s information page Information about application fees.
Generally, an appeal must be lodged within twenty eight days of receiving notification of the decision if reasons are provided with it, or twenty eight days after receiving a formal statement of reasons if requested under the Administrative Appeals Tribunal Act (Cth). This time may be extended by the tribunal but there are instances where an extension cannot be granted. Whilst twenty eight days is the most common time limit there are applications where a much shorter period applies e.g. decisions under section 501 of the Migration Act. There are also instances where a longer time limit applies e.g. most decisions made by the Australian Tax Office have a time limit of sixty days. For further information see http://www.aat.gov.au/applying-for-a-review/time-limits .
After an appeal is made, the original decision will continue to operate. An administrative body, making and acting on a decision, will not wait to see whether anyone decides to appeal. Obviously, cases will arise where those wishing to appeal want to prevent any action being taken on a decision which they consider wrong. The Act enables a person to apply for an order to suspend the operation of a decision until a final decision is made [Administrative Appeals Tribunal Act 1975 (Cth) s 34H for engagement of persons to conduct alternative dispute resolution processes].
Presenting a case
An applicant can be represented before the AAT by a lawyer or any other person. Proceedings of the AAT are meant to be straightforward and informal but legal representation is often strongly advisable given the demands of complex legislation and the fact that the government department is itself represented by a lawyer or skilled advocate.
The AAT does not rely solely on oral argument. Parties must provide statements of facts and contentions. It is not bound by the rules of evidence but may inform itself in whatever way it considers appropriate.
Under the Act it is possible for other people to join in and support the application of the person or body which has initiated the appeal [see Administrative Tppeals Tribunal Act 1975 (Cth) s 30]. All that is necessary is that such people have an interest in the matter sufficient to entitle them to appeal themselves.
The Act allows for conciliation conferences and other alternative dispute resolution processes to be held between the parties [s 34], designed to bring about a resolution between them without the need to proceed to a hearing. Conferences also ensure that where a matter is to proceed to a hearing, the parties identify and if possible, narrow the issues in dispute to allow an efficient hearing. Normally, they are held in private. These are an important part of the AAT's procedures and offer an opportunity for a 'no holds barred' discussion between parties.
The AAT has wide powers to call for government documents [ss 37, 38]. This power applies in cases where the Attorney-General has ruled that a person seeking a statement of reasons cannot receive certain information because it affects national security, covers Cabinet deliberations or falls within the sphere of Crown privilege [s 36]. The AAT has power to release the information to the parties despite the Attorney-General's certificate, if it is desirable in the interest of securing the effective performance of the functions of the AAT [s 36(4)].The AAT also has power to examine a governmental decision not to release documents which it considers should remain confidential or secretly classified [s 39].
Hearings are normally held in public, although the AAT has a discretion to close off part, or all, of a hearing [s 35]. In some appeals under the Freedom of Information Act 1982 (Cth) the AAT is required to conduct at least part of the hearing in private.
Powers of the Tribunal
In reviewing a decision, the AAT has authority over the matter equal to that of the original decision maker [s 43]. It is required to make its decision in writing and give reasons. Unless the legislation says otherwise the AAT may:
- affirm the decision under review
- vary the decision under review
- set aside the decision under review and either make a decision in substitution or return the matter for reconsideration in accordance with any directions or recommendations of the tribunal [s 43].
The AAT does not have the power to order costs except in some specific types of matters and circumstances, such as where there is a successful review of an adverse secuirty assessment under the Australian Security Intelligence Organisation Act 1979 (Cth) [see s 69B] or in commonwealth workers compensation matters [see Safety, Rehabilitation and Compensation Act 1988 (Cth) s 67]. In other matters the tribunal may recommend that the Commonwealth pay the cost of the application, but there is no obligation on the Commonwealth to do so. Generally each side must pay their own costs.
The law permits a party, or intending party, to apply for legal or financial asistance [s 69]. The Attorney-General must have regard to whether refusal to grant the assistance would involve hardship to the applicant and whether in all the circumstances it is reasonable to grant it and may impose conditions on any assistance granted. This provision does not apply to matters being determined in the Migration and Refugee Division or the Social Services and Child Support Division.
An appeal about a person's standing to appear before the AAT or on a question of law from the AAT to the Federal Court is permitted [see Administrative Appeals Tribunal Act 1975 (Cth) s 44]. The AAT itself may refer a difficult point of law to the Federal Court [s 45]. Some matters may be transferred to the Federal Circuit Court on the AAT's own initiative or on the application of a party [s 44AA].
An appeal does not affect the operation or implementation of a decision unless the court or a judge of the court orders otherwise [s 44A]. If an appeal is taken to the Federal Court, a party may be liable to pay costs.
The South Australian Civil and Administrative Tribunal (SACAT) largely has jurisdiction to hear matters under State Acts, along with the Administrative and Disciplinary Division of the District Court.
The South Australian Civil and Administrative Tribunal (SACAT) began operation on 30 March 2015. It replaced a number of other Tribunals and Boards such as the Residential Tenancies Tribunal and the Guardianship Board.
For more information about SACAT see the SACAT website
Objectives [s 8]
Objects of the South Australian Civil and Administrative Tribunal Act 2013 (SA) include:
- Independent decision making;
- Natural justice and procedural fairness;
- High-quality and consistent decision making;
- Transparency and accountability
- Alternative Dispute Resolution (ADR);
- Low cost;
- Plain language;
- Less formal and technical; and
- President of the Tribunal [see ss 9-11, 30];
- Deputy President(s) [ss 13-17];
- Magistrates [s 18];
- Ordinary members and senior members [ss 19-21]; and
- Assessors [s 22].
Who sits on the Tribunal? [ss 23-26]:
- Determined by the President.
- Up to three members, with the most senior member presiding.
- Decision is by the majority, but if it is equally divided then the presiding member decides.
- Questions of law are decided by the Presidential member; with ability for the Presidential member to refer the question to the Supreme Court. Additionally, when a Presidential member decides a question of law, they are able to decide any other questions remaining between the parties [s 26].
Location and contact details:
Initially SACAT will be in two locations:
Adelaide CBD: Level 4, 100 Pirie Street Adelaide 5000; and
Collinswood: Level 8, 85 North East Road, Collinswood
Telephone: 1800 723 767
For more information visit the SACAT website.
Below is a brief outline of the relevant acts that confer jurisdiction on the South Australian Civil and Administrative Tribunal (SACAT).
The key legislation for any area operating under SACAT, is the legislation of the particular area, for example for matters about Guardianship, it will be the Guardianship and Administration Act 1993 (SA). This is because procedure and processes may be different under a relevant Act (see below).
The law handbook contains this information under the various chapters about the relevant Acts, such as Housing, Guardianship and Administration, Advance Directives, etc.
The Legislation which establishes and sets out the functions of SACAT is the South Australian Civil and Administrative Tribunal Act 2013 (SA) and both the South Australian Civil and Administrative Tribunal Regulations 2015 (SA) and South Australian Civil and Administrative Tribunal (Fees) Regulations 2017 (SA)– references below are to the sections in this legislation and the regulations.
Relevant Acts are those which confer jurisdiction on SACAT (they give the power for SACAT to deal with matters under that Act) and they prevail if there is inconsistency with the SACAT legislation [s 4]. Current relevant Acts include (but are not limited to) the following:
- Advance Care Directives Act 2013 (SA);
- Adoption Act 1988 (SA) (certain decisions only) (as of 5 July 2018);
- Births, Deaths and Marriages Registration Act 1996 (SA) (certain decisions only) (as of 5 July 2018);
- Children and Young People (Safety) Act 2017 (SA) (certain decisions only) (as of 20 February and 22 October 2018);
- Community Housing Providers (National Law) (South Australia) Act 2013 (SA) ;
- Consent to Medical Treatment and Palliative Care Act 1995 (SA) ;
- Conveyancers Act 1994 (SA) (as of 4 October 2018);
- Dog and Cat Management Act 1995 (SA) (as of 1 July 2018);
- Guardianship and Administration Act 1993 (SA);
- Land Acquisition Act 1969 (SA) (certain decisions only) (as of 5 July 2018);
- Land Agents Act 1994 (SA) (as of 4 October 2018);
- Land Valuers Act 1994 (SA) (as of 4 October 2018);
- Local Government Act 1999 (SA) ;
- Mental Health Act 2009 (SA) ;
- National Parks and Wildlife Act 1972 (SA) (certain decisions only) (as of 4 October 2018);
- Residential Tenancies Act 1995 (SA) (except disputes where one party is resident interstate);
- Retirement Villages Act 1987 (SA) ;
- Residential Parks Act 2007 (SA) ;
- South Australian Housing Trust Act 1995 (SA) ;
- Valuation of Land Act 1971 (SA);
- First Home and Housing Construction Grants Act 2000 (SA) (as of 11 December 2016);
- Freedom of Information Act 1991 (SA) (as of 11 December 2016);
- Firearms Act 2015 (SA) (as of 1 July 2017);
- Animal Welfare Act 1985 (SA) (as of 14 December 2017) (certain reviewable decisions only);
- Associations Incorporation Act 1985 (SA) (as of 22 February 2018) (section 50 decisions only);
- Tobacco Products Regulation Act 1997 (SA).
For a full list of relevant Acts which confer jurisdiction on SACAT see the SACAT website.
- Fees are set out in Schedule 1 of the South Australian Civil and Administrative Tribunal (Fees) Regulations 2017 (SA) [see also reg 4].
- There are no application fees for commencing proceedings to guardianship, administration, mental health, consent to treatment, and advance care directives.
- Application for commencement of SACAT proceedings in other streams is $73.00 (as of 1 July 2018).
- Fees may be reduced if the applicant is a holder of certain concession cards. Fees may be waived in full where the person applying:
- has been approved for legal aid within the preceding three months and is paying the minimum required contribution towards their grant of aid; or
- is under 18 years of age; or
- is in prison; or
- is, in the opinion of a financial counsellor, unable to pay the fee without experiencing financial hardship; or
- is making an application to terminate a residential tenancy based on domestic abuse pursuant to section 89A of the Residential Tenancies Act 1995 (SA).
- Fees can also be reduced or waived on the basis of financial hardship or special circumstances.
- The fee for an application for internal review of a SACAT decision is $557 for individuals or $782 for prescribed corporations as of 1 July 2018.
See South Australian Civil and Administrative Tribunal (Fees) Regulations 2017 (SA) regulations 7 and 8.
See also the Fees and Charges Summary on the SACAT website.
It is an offence to knowingly provide false or misleading information to SACAT when applying for a waiver or reduction in fees - Maximum penalty of a fine of up to $1250 or imprisonment for 3 months [South Australian Civil and Administrative Tribunal Act 2013 (SA) s 93B].
SACAT Jurisdiction [South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 31- 38]:
SACAT has original and review jurisdiction:
- Original Jurisdiction - where an Act confers it, it is the original decision maker, and where that is the case there is an internal right of review process [s 33].
- Review Jurisdiction – power to affirm, vary or set aside the decision and substitute a or send the matter back to the decision maker for reconsideration (at any stage the Tribunal can invite the decision maker to reconsider their decision) [s 34].
Rehearing – must give appropriate weight to decision of original decision maker, however must reach the correct, or preferable, decision [s 34(4)].
Refer to the relevant Act as to any limitations or extensions on this power of review [ss 34(6)-(7)].
General practice and procedures:
SACAT hearings are generally in public [see South Australian Civil and Administrative Tribunal Act 2013 (SA) s 60] and a member of the public can apply to inspect various documents, transcripts, proceedings etc. [s 90, see Schedule 1 of the South Australian Civil and Administrative Tribunal (Fees) Regulations 2017 (SA) for the fees associated with the inspection of these documents].
SACAT can hear proceedings without a party being present [see s 43(2)(f)]. Proceedings are less formal than in a Court, and SACAT is not bound by the rules of Evidence and acts without regard to legal technicalities and with minimal formality [ss 8, 39]. However, the Tribunal has discretion to adopt relevant findings or decisions of other Courts or Tribunals [s 39(1)(b)].
Legal representation is generally allowed (refer to relevant Acts as to occasions where this may not be allowed); parties can also represent themselves or can seek leave of SACAT to be represented by other non-legal representation [s 56].
Proceedings can be electronically heard (video link etc.) [s 67], and will be recorded by video or audio or other recording [see further s 90(2)(d) and South Australian Civil and Administrative Tribunal Regulations 2015 (SA) reg 10].
A person who contravenes or fails to comply with an order of SACAT (other than a monetary order) is guilty of an offence. Maximum penalty $50 000 or imprisonment for 2 years [s 89(2)]. Monetary orders can be recovered in the appropriate court (Magistrates or District Court) [s 89(1); see also South Australian Civil and Administrative Tribunal Regulations 2015 (SA) reg 9].
Powers of SACAT
Similar to a charge of Contempt of Court, SACAT has the power to require person to give evidence or to produce evidentiary material [s 40] failure to comply: Maximum penalty $25 000 or imprisonment of 1 year [s 40(4)]. Disrupting proceedings is also an offence. Maximum penalty $10 000 or imprisonment for 6 months [s 93A].
SACAT has the power to enter land and buildings relevant to a proceeding [s 41] – Obstruction of this is an offence, Maximum penalty $10 000 or imprisonment of 6 months [s 41(3)].
Other powers of SACAT include:
- The decision maker must assist the SACAT– providing a written statement of the reasons for the decision and any document or thing that may be relevant to the Tribunal’s review of the decision [s 35];
- SACAT can refer any questions to a special referee for decision or opinion and can adopt in whole, in part or reject that decision or opinion [s 65];
- SACAT has the power to refer questions to experts in relevant fields [s 42];
- SACAT has the power to dismiss vexatious, improper or frivolous proceedings [s 48], or proceedings withdrawn for want of prosecution [s 47];
- SACAT has the power to cure irregularities affecting proceedings and fix mistakes in decisions [ss 83-84].
Emphasis on negotiated outcomes
SACAT has a strong emphasis on negotiated outcomes. SACAT has the power to order the parties to attend a compulsory Alternative dispute resolution conference or mediation [ss 50-51] and also has the ability to itself try and achieve a negotiated settlement of the matter [s 52]. Refer to the relevant Act that the matter arises under, such as Residential Tenancies, Guardianship, etc. for specific processes of Alternative dispute resolution.
Generally, parties pay own costs (unless specified as otherwise in relevant Acts), and costs can be ordered against a party however must be a good reason [s 57]. [See further on Costs and other orders ss 57-58, 62, South Australian Civil and Administrative Tribunal Regulations 2015 (SA) reg 11].
SACAT Appeals and Reviews [see South Australian Civil and Administrative Tribunal Act 2013 (SA) ss 70 – 73 and also the relevant Act]
The commencement of an appeal or review under these sections does not affect the operation of the reviewed or appealed decision, unless there is an order by the reviewing Court or Tribunal staying the decision [s 73(1)-(2)].
An internal review of a decision made by the Tribunal in its original jurisdiction [ s 70(1)(a)] or constituted by a registrar or other staff member of the Tribunal [s 70(1)(b)]:
- must be made within one month of the decision; however if it is just and reasonable to do so this time limit can be extended [s 70(2)];
- when the decision was made by the Tribunal constituted by a registrar or other staff member of the Tribunal, is only allowed by leave of a Presidential member of the Tribunal [s 70(1a)].
The Tribunal can review the decision on the evidence before it in the first instance alone or allow further evidence [s 70(4)].
The reviewing Tribunal may vary, affirm, set aside (and substitute or return the matter to the original Tribunal with relevant recommendations), and order any ancillary or consequential orders it considers appropriate [s 70(6)-(7)].
Note that a decision made at an internal review is a decision made as part of the Tribunal's original jurisdiction, not its review jurisdiction [s 32(2)].
Appeals against a decision of the Tribunal lie in the Supreme Court, to a single Judge or, where the Tribunal included a Presidential member, to the Full Court of the Supreme Court [s 71(1)]. However the Rules of the Supreme Court may provide that a matter go to a single Judge or the Full Court [s 71(1a)].
Unless a relevant Act says otherwise, an appeal may only be made with the permission of the Supreme Court [s 71(2)].
Refer to the relevant Act as to any limitations or extensions on this power of review [ss 34(6)-(7)]. For example, a relevant Act may provide that certain matters may not be taken on appeal to the Supreme Court.
Appeals must be made within one month of the decision; however if it is just and reasonable to do so this time limit can be extended [s 71(3)].
The Court may vary, affirm, set aside (and substitute or return the matter to the Tribunal with relevant recommendations or directions), and order any ancillary or consequential orders it considers appropriate [s 71(4)].
Questions of Law can be reserved for determination by the Full Court of the Supreme Court [s 72].
The commencement of an appeal or review under these sections does not affect the operation of the reviewed or appealed decision, unless there is an order by the reviewing Court or Tribunal staying the decision [s 73(1)-(2)].
Decisions should be fairly immediate, with more complex cases or less pressing matters, taking more time. They should also be straight forward, in line with the objects of the Act.
Always check the relevant Act for additional rights, limitations and other procedures around reviews and appeals.
In 1994 the Administrative and Disciplinary Division of the District Court was created within the South Australian District Court [see District Court Act 1991 s 8(3)]. The division has jurisdiction to hear matters under some State Acts, however many of the Acts formerlly in this jurisdiction now refer jurisdiction to the South Australian Civil and Administrative Tribunal.
The process for administrative appeals to the Administrative and Disciplinary Division of the District Court is set out in Part 6 Division 2 of the District Court Act 1991 (SA) and in Chapter 13, Part 2 of the District Court Civil Rules 2006 rr 281 - 287.
In theory, judicial review is different from any administrative appeal or a complaint to the Ombudsman. A person seeking to obtain judicial review of a decision or action will seek an order from a court that a decision be set aside, that a proceeding be restrained or that certain action be taken by a government or statutory agency. However, a court will not normally attempt to direct a government agency as to which course of action it should follow.
In deciding whether to grant judicial review, the court looks at the methods adopted by the government agency or department in coming to a decision and determines whether:
The courts do not review the actual decision on its merits, but decide whether it was properly made. It is possible that the same decision will be made by government the second time around, this time strictly following the instructions of the court about what is lawful.
The courts have seen their role as supervising the decision making powers of the agency or department and ensuring that it stays within proper boundaries. The grounds on which the courts will base a decision have developed over several hundred years and are contained in a large number of English and Australian court cases, many of the more important ones decided in the past two decades. A person who wants to be absolutely certain of her or his legal position should seek specialist legal advice.
Commonwealth or State law?
A person seeking to obtain judicial review of a Commonwealth Government action must sue the government in the High Court of Australia or the Federal Court of Australia. A person wishing to obtain judicial review of a South Australian Government action must make an application to the Supreme Court of South Australia. There is the possibility of further appeal from the Supreme Court to the High Court of Australia.
Generally, the High Court and the Supreme Court have established similar review principles on cases involving similar facts. However, with the establishment of the Federal Court, an alternative method to decide a case is set out in the Administrative Decisions (Judicial Review) Act 1977 (Cth). This provides a better alternative to judicial review in the Federal sphere. Unlike the situation in the High Court and the Supreme Court where the judges look to the long line of case law, the power of judges in the Federal Court is set out in the Act.
Who can take action?
The courts do not permit just anyone who feels the government has behaved wrongly in taking a particular administrative action or administration decision to bring a case. It must first be shown that the person has standingto sue (that is a relevant or sufficient interest in the matter in dispute).
At one time it was necessary to show some interference with a legal right, especially a right of property. In recent years it has been recognised that there are many matters not involving the loss of property that can damage or affect peoples' lives.
A person clearly has standing to sue if she or he has personally been affected by a decision or action by government. Where the action in question is more general and does not operate specifically against a particular person, judicial review may be difficult to obtain. In recent years the test for standing has broadened to include persons or organisations who can demonstrate some special interest in the subject matter.
The representatives of a group may ask the appropriate Attorney-General to initiate proceedings on their behalf. This is called an Application for a Fiat.
Prerogative writs and equitable remedies
This rarely used group of remedies is historically important in understanding administrative law and is also important in relation to decisions for which there is no remedy.
A person who wants to challenge a government action by judicial review must be prepared to do so in a higher court. There are several problems facing anyone who considers such a step, including the relatively complicated legal work involved, the consequently high legal fees and the intimidating atmosphere of the courts, created by both the physical environment and the high level of legal argument.
The remedies available are limited in effectiveness since the courts are concerned, in theory at least, only with the legality of the process rather than whether the decision under challenge was the correct one. Furthermore, all the remedies are discretionary. The court may take into account such factors as delay in seeking the remedy, the futility or usefulness of granting it, and the hardship caused to others by granting it.
- Quo warranto
Equitable remedies potentially available are:
A declaration (sometimes called a declaratory order or declaration of right) is a formal statement from the court that a decision, act or procedure is unlawful. The government will normally comply with the spirit of the decision; the problem is that a declaration is not legally binding.
When a court makes an injunction, it may order the body which has acted unlawfully to take a particular action (a mandatory injunction) or, as is more usually the case, it may order that a particular unlawful course of action cease (a negative injunction). The courts are not inclined to make mandatory injunctions because they involve the court in continual supervision of the conduct of the person or body. A court will only issue an injunction if it is satisfied that the body which has acted unlawfully may, or will, continue to do so - that is, it is a discretionary remedy. This also applies to a declaration.
Mandamus is an order requiring a public body or official to perform a duty which it has failed to perform. The important point here is that the body or tribunal must be shown to have failed to carry out a duty.
Prohibition is an order to a lower court, tribunal or similar decision making body requiring it to cease proceedings. This order should be sought where a body has failed to exercise its jurisdiction properly or failed to provide natural justice, and these proceedings are continuing. However, it should be noted that as a matter of practice people seeking judicial review of a Commonwealth body's processes in the High Court always seek prohibition regardless of whether an order has been made.
Effectively, certiorari is an order setting aside the decision of an authority. After a decision-making body has finished its proceedings and made an order, and when there has been an alleged error or abuse of process by the decision making body, the appropriate remedy is an order for certiorari to transfer the proceedings to a higher court so the matter can be reheard, and the decision of the lower court quashed (set aside). Certiorari can be sought where there has been absence or excess of jurisdiction, jurisdictional error or error of law on the face of the record, failure to observe the requirements of procedural fairness or fraud.
An order preventing a person from wrongfully exercising, or purporting to exercise, functions of a public character.
There are a number of different grounds for challenging a decision.
A court will interfere with an administrative decision or question if it can be shown to go beyond the powers given to the decision maker by Parliament. An administrative action that goes beyond this power is called ultra vires. There is a great deal of case law on the various reasons why a decision may be ultra vires. These are summarised in the following paragraphs.
Irrelevant Considerations- This is the most important ultra vires ground. If it can be shown that a government body, in reaching its conclusions, took into account factors that were not relevant to the matter, or failed to consider matters that were relevant, the court can intervene. In order to decide what is relevant it is necessary to compare the reasons given for the decision or action with those permitted by the Act.
Improper Purpose- This is probably the second most common ultra vires ground. Often, the same factual situation will justify court action on the basis of both irrelevant consideration and improper purpose. Strictly speaking, the claim here is that the decision or action, although on its face proper under the law, is designed to achieve a purpose which is beyond the responsibilities of the government body.
Unreasonableness- A much less readily available ground is to claim that a decision is so unreasonable that no reasonable body would have reached it. This is a difficult ground, because it admits initially that the decision was one that was permissible under the law. What the individual is contending is that it is so unreasonable an application of the law that it goes beyond the inferred limits of the power. Generally speaking, the courts are not inclined to replace their view of hat might be reasonable for that of an outside body, especially an elected body such as a local council.
Bad Faith- To attack an administrative action on the ground of bad faith it is necessary to show that the decision was affected by corruption, bribery or similar malpractice.
Uncertainty - A ground which is rarely available for attacking an administrative action is that it was too uncertain to be meaningful.
No Evidence- This is a relatively recent development in the review of administrative action, as the courts are more prepared now than previously to review decisions where the evidence does not appear reasonably capable of supporting the decision made.
Beyond Jurisdiction- A decision that affects the rights or interests of an individual can be challenged on the grounds that it is beyond the jurisdiction of the decision making body.
Error of Law- Normally, tribunals are free to make legal principles in the field in which they are concerned, but sometimes the law has been decided in other decisions. The tribunal must follow these established principles.
It is sometimes possible to attack a tribunal's decision on the basis that it is obvious from the record of its proceedings or the reason for its decision that it misunderstood some established principle. This is known as an error of law on the face of the record.
The courts have adopted the strict position that a person whose financial interests may be affected by the outcome of the case cannot sit in judgment.
Although the financial interest aspect is clear-cut, there are other situations where a person may be biased; perhaps by being related to someone connected with the case or through having some past professional association with one of the parties, even by having expressed views hostile to those being put by one of the parties.
This type of challenge is not concerned with the reasons given for an administrator's decision or action but with the procedures followed by the administrative body or official in reaching its conclusion. This is an important way of attacking an administrative decision or action. Although the reasons given may be perfectly legal or the action taken clearly within the authority of the administrative body, the law has always insisted that prescribed, or inferred, standards of conduct must be followed by the government in dealing with the community. Anyone wishing to challenge an administrative decision should first look at the Act under which the decision is made to see that the required procedures were followed exactly before the decision was reached. For example:
- that the official or body who was required to take an action (such as signing a letter) did so
- that all people with a right to be heard were given the opportunity to be heard
- that all notices and advertisements (whether by post, in newspapers or by any other means) were properly given
- that all times allotted for the making of objections or appeals were properly allowed
- that consultation with outside bodies or individuals was carried out
Any irregularity in following the terms of the Act may be the basis for obtaining judicial review of a decision.
Improper delegation is a narrow ground. Obviously the conduct of government administration requires that ministers, boards and other entities in which responsibility for government decisions is placed must pass over much of their work to subordinate officers. The rule of improper delegation looks at whether or not the person responsible in law for making the decision keeps control over the decision.
Still more unusual are situations where a process is declared legally improper because the decision maker has divested responsibility or acted under dictation. Divesting happens where a decision maker simply gives away her or his authority in a matter. Dictation is where the body responsible for making a decision allows itself to be dictated to by some other entity in the community, normally a person superior in status to that body.
A ground for action may exist where an administrative body applies predetermined guidelines or policy without regard to the merits of the situation.
Although ultra vires claims may be made against any type of administrative decision or action, the principles of natural justice (which from time to time receive a good amount of publicity) do not apply to all administrative decision making situations, but only bind administrative bodies where a judgment is being made which may have the effect of interfering with a significant interest of the individual.
Natural justice must be provided in a wide variety of situations where action is taken against an individual.
In situations where natural justice should be given it is important to read the Act governing the body or official responsible for the decision. Strict procedures are usually set out by the relevant Act. These may include:
- how much notice must be given of a hearing
- whether a person appearing before the tribunal can have legal representation
- how many people must sit on the tribunal
- whether the proceedings are governed by strict rules about the presentation of evidence
- whether a party is entitled to cross-examine witnesses.
The common law rules of natural justice deal with situations where Acts say nothing about what should amount to a fair hearing or have not dealt with an important aspect of the topic, such as legal representation. Often officials such as chief executive officers of government departments are not subject to firm rules, although this is less true of tribunals. The court which reviews a tribunal's actions will compare its procedures with those required by the Act and the principles of natural justice.
Finally, it depends on whether or not a court considers a particular procedure to have been fair in the circumstances and this can vary from case to case. Apart from some fundamental guiding principles, there are no absolute rules in this area and so it is difficult to estimate the chances of success. The matters which most often lead to a finding in favour of a person are:
- failure to give adequate notice of a hearing
- failure to allow legal representation
- failure to give sufficient opportunity to present the case.
In addition to reviews of Commonwealth decisions under the common law outlined above, the Federal Court may review certain decisions under the Administrative Decisions (Judicial Review) Act 1977 (Cth). This Act has made some changes to the common law. For example, as it became increasingly apparent that a good deal of harm could be done to a person simply by an adverse report or recommendation, even if not eventually acted upon (as this was not a decision), the Act provides that reports, actions or recommendations can now be challenged.
It should be emphasised that this form of statutory review fits into this category of judicial review because it operates under the same principles, that is, it is not a review of the merits of the decision as such, but a review of the processes undertaken to reach that decision so as to ensure that they were fair.
It should also be noted that this legislative review structure does not apply to all decisions. The Act has a schedule of decisions to which it does not apply and these should be considered before instituting any proceedings. This list is quite small. For this limited number of jurisdictions, prerogative remedies are required.
One of the most significant aspects of this area of review is the general right to obtain a statement of reasons for decisions [Administrative Decisions (Judicial Review) Act 1977 (Cth) s 13]. This right should be exercised within a reasonable time period. Just as there is a Schedule of decisions to which this Act does not apply, there is also a Schedule of decisions under which there is no obligation to provide reasons. Schedule II to the Act should be checked before any proceedings are undertaken.
Under the Act [Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5 Applications for review of decisions] any person who is aggrieved by a decision can make an application to the court. To be aggrievedthe person must be significantly affected by an administrative decision. This is similar to the requirement that a person have standing.
The statutory grounds on which a decision may be reviewed 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
The error of law ground is wider than the existing common law ground in that it no longer matters that the error does not appear on the face of the record.
The no evidence ground is a new development in administrative law. To establish that a decision should be reviewed because there is no evidence, it is necessary to show either:
- that the person who made the decision was required by law to reach that decision only if a particular matter was established and that there is no evidence or other material (including the facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established
- that the person who made the decision was influenced by the existence of a particular fact, and that the fact did not exist.
The improper exercise of power ground is defined in the Act and includes the traditional ground of ultra vires (beyond power), see Challenging a decision. To this can be added the ground of abuse of power, which is directed at the unusual situation where a body, especially a tribunal, deliberately exceeds its authority in order to harm a person.
Under the Administrative Decisions (Judicial Review) Act 1977 (Cth), conduct related to making a decision may be reviewed. This covers grievances with procedures before they commence or while they are proceeding. The grounds for intervention are identical to those for review of a decision.
An order can be obtained where a decision maker is under a duty to make a decision and fails to do so. Where no time limit is imposed by the law on the decision maker, the person can seek judicial review on the ground of unreasonable delay if nothing is done after a reasonable time. If the time for making the decision is specified, the ground is failure to make the decision within that period.
The Federal Court can send a matter back to the decision maker directing her or him to act in a certain way, it can quash or set aside a decision or it can declare the rights of the parties. However, in certain areas, its powers are greater than those under the old system giving another reason why this is a preferable alternative in Federal matters.
The ability to seek judicial review using prerogative remedies was once exercised by issuing what was known as a prerogative writ. Nowadays the process is much more like those used for other types of actions. The process for applying for judicial review of South Australian Government decisions is set out Part 3 of the Supreme Court Civil Rules 2006 (SA) rr 199 -201.
How is an application for judicial review commenced?
An application for judicial review can be commenced by filing documents in the Supreme Court (Form 1, Form 33, Form 39, and Form 40 which are available from the Courts SA website).
Can the application proceed after filing these documents?
No. This is a significant difference from the old prerogative writ process. Applications for judicial review can only proceed further with the Court's permission. As a result the application must also be accompanied by an:
Interlocutory Application seeking the Court's permission (to serve the application); and
Affidavit stating the orders sought and setting out, in detail, the grounds for them.
These forms can also be found on the Courts SA website.
The Court may give permission if 'satisfied that there is a reasonable basis' upon which an order for judicial review might be made. An application for permission may be heard in the absence of the defendant or the Court may adjourn the matter so that the defendant and/or other interested parties can be notified and heard. If the Court gives permission, the Court must also decide at that point whether the application will be heard by a single Judge or by the Full Court (which is normally comprised of three Judges). This can be a complex and time consuming process but is designed to avoid frivolous, incomplete or incorrect applications.
See Supreme Court Civil Rules 2006 (SA) rr 200A and 200B.
Will the decision be suspended?
Making an application does not automatically suspend the operation of the decision the subject of the application for judicial review, but the Court may suspend it or order a stay of any related proceedings [see Supreme Court Civil Rules 2006 (SA) r 201].
How much time is there to make an application?
An application for judicial review must be made as soon as practicable after the date when the grounds for review arose, and in any event, within 6 months of the date when the grounds for review arose [see Supreme Court Civil Rules 2006 (SA) r 200(1)]. If an application is commenced more than 6 months after the grounds for review arose, the action cannot proceed further without the Court’s permission [r 200(2)].
It is open to the Court to refuse an application for judicial review if there has been undue delay in bringing the application (even if it is brought within 6 calendar months) [see, for example Winen v District Court of SA  SASC 440
The Court has a general power to extend the time within which an application may be made where the justice of the case requires it [see Supreme Court Civil Rules 2006 (SA) r 117(2)(b)].
What orders can be made?
While the process for applying for judicial review has changed from the issuing preroragitve writs to summonses, this has not changed the substance of the application.
A person applying for judicial review is entitled to an order in the nature of prerogative remedies, that is:
prohibition (an order preventing an authority from acting beyond its jurisdiction or in contravention of the requirements of procedural fairness);
certiorari (an order setting aside the decision of an authority because of absence or excess of jurisdiction, jurisdictional error or error of law on the face of the record, failure to observe the requirements of procedural fairness or fraud);
mandamus (an order compelling an authority to peform a public duty);
quo warranto (an order preventing a person from wrongfully exercising, or purporting to exercise, functions of a public character.
[See Supreme Court Civil Rules 2006 (SA) r 199(2)]
An application may also include claims for other relief, such as a declaration under section 31 of the Supreme Court Act 1935 (SA) [see r 200A(6)].
There are three grounds upon which monetary compensation can be obtained for loss suffered as a result of negligence, defective administration or special circumstances arising out of Commonwealth administration:
- Payment in settlement of a claim
- Compensation for Detriment caused by Defective Administration (CDDA Scheme)
- Act of Grace payments
In addition there are provisions to allow for waiver or write-off of debts under certain conditions.
1. Payment in settlement of a claim
What types of claims can be settled in this way?
Can be used to settle claims of legal liability against the Commonwealth – usually for an action in negligence but can also be applied to actions in contract, personal injury and property damage. The Chief Executive of the relevant Commonwealth Agency has the authority to settle claims on the basis of legal principle and practice where there is a substantial likelihood of Commonwealth liability if the matter were to proceed to court.
When the option is not available
This option is not available where claimant had a right of review with the Commonwealth agency and did not exercise that right.
Conditions of settlement
Any offer of payment is not an admission of liability by the Commonwealth i.e. it won’t prejudice the rights of the Commonwealth in the event of future litigation. This means they can still dispute liability and damages in any future court proceedings, despite an offer having been made.
The claimant will be required to sign a deed of release as a condition of settlement. This indemnifies the Commonwealth against further litigation.
Can I get a review of a decision under this scheme?
Decisions under this scheme are not reviewable.
How to apply
Anyone who considers they have suffered economic loss as a result of negligence by a Commonwealth Department or Agency may make a claim to the authorised officers of the Agency or Department. The claim must be in writing and include appropriate details of the alleged negligence and the loss suffered.
2. Compensation for Detriment caused by Defective Administration (CDDA Scheme)
What types of claims can be dealt with by this scheme?
Where it can be shown that an individual or group has suffered loss as a result of poor administration on the part of a government agency, the Compensation for Detriment caused by Defective Administration scheme (CDDA) can provide compensation on a discretionary basis. The scheme is intended to compensate those to whom there is no legal obligation to pay compensation so, unlike payment in settlement of a claim, legal liability is not required.
The intention of the scheme is to restore claimants to the position they would have been in had there been no administrative error. Compensation can be granted for both financial and non-financial loss (i.e. pain and suffering which the claimant can demonstrate having suffered despite taking reasonable steps to mitigate the loss).
The sorts of decisions that are frequently dealt with by the scheme are Centrelink entitlements and child support and tax liabilities. Where a decision has been unreasonably delayed and causes loss to a person the CDDA is designed to address any loss incurred as a result.
What is ‘defective administration’?
‘Defective administration’ is defined as an unreasonable failure by an agency to implement appropriate administrative procedures, comply with existing administrative procedures or to provide proper advice. The fact that an error has been made is not sufficient in itself to give rise to a payment under this scheme – it must also be established that the error in question was unreasonable.
Are decisions under the CDDA scheme reviewable?
Decisions made under the CDDA scheme are not appealable or reviewable. Complaints about the scheme can be made to the Commonwealth Ombudsman.
How to apply
Applications are made directly to the Department or Agency concerned.
3. Act of Grace payments
What types of claims can be dealt with under this scheme?
There are three broad categories in which Act of Grace payments will be considered:
- where the application of legislation produces unintended anomalous, inequitable, unjust or otherwise unacceptable results in the particular circumstances
- where the matter is not covered by legislation but it is intended to introduce legislation and it is considered desirable in the particular case to apply the benefits of the proposed legislation retrospectively
- where the particular circumstances of the case lead to the conclusion that there is a moral obligation on the part of the Commonwealth to make a payment
For a claim to be considered under this scheme there must be special circumstances warranting the payment of compensation, that is, there must be something distinctly anomalous or inequitable about the individual’s situation.
Are decisions about Act of Grace payments reviewable?
There is a right of review against the procedural aspects of the making of Act of Grace payments.
How to apply
Applications must be made to the Department of Finance and Deregulation. There is no required form to be completed by the application should provide the following information:
- full name, date of birth, postal address and telephone number
- the relevant circumstances forming the background for the request for payment
- details of the amount being requested in payment
- the reasons why you think an act of grace payment should be approved
- whether an application for review has been made with the relevant Department of Agency – this is required before an Act of Grace payment can be made
- whether the matter has been appealed to the Ombudsman, a tribunal or a court
- copies of any relevant documents, including letters between yourself and the Department or Agency involved
For further information you can telephone the Special Financial Claims Section of the Department of Finance and Deregulation on 1800 227 572.
Inquiry agencies, public authorities and public officers (including public sector employees or contractors) have an obligation to report matters that they reasonably suspect involve corruption or serious misconduct or maladministration in public administration to the Office of Public Integrity (the OPI), unless it has already been reported [see Independent Commissioner Against Corruption Act 2012 (SA) ("the Act") s 20 and the Commissioner's Directions and Guidelines]. Obstructing the making of a complaint, as well as the making of a false or misleading complaint, are offences against the Act.
The OPI assesses all complaints and reports and makes recommendations as to whether they should be investigated and, if so, who should investigate (the ICAC, the Ombudsman or the public authority itself). No action may be taken if the matter is assessed as trivial, vexatious or frivolous or the matter has previously been dealt with by an inquiry agency (such as the Ombudsman) or public authority and there is no reason to re-examine the matter [s 24(4)].
Matters raising potential issues of corruption must be referred to either the ICAC or another law enforcement agency for investigation [s 24(1)]. In case of matters that raise potential issues of serious or systemic maladministration, and it is in the public interest to do so, the ICAC may exercise the powers of an inquiry agency (such as the Ombudsman) [s 24(2)(b)]. The ICAC may only exercise the powers of an inquiry agency (such as the Ombudsman) in case of matters that raise potential issues of serious misconduct in public administration, if it is connected to potential issues of either corruption or serious or systemic maladministration it is otherwise investigating [s 24(2)(c)].
Other than conducting investigations and using the powers of an inquiry agency, the Independent Commissioner Against Corruption may [s 7]:
- assist inquiry agencies (such as the Ombudsman) and public authorities identify and deal with misconduct and maladministration, refer complaints to them and give directions and guidance to public authorities in dealing with them
- evaluate the practices, policies and procedures of inquiry agencies (such as the Ombudsman) and public authorities with a view to advancing comprehensive and effective systems for preventing or minimising corruption, misconduct and maladministration, and
- conduct or facilitate the conduct of educational programs designed to prevent or minimise corruption, misconduct and maladministration
- review legislative schemes relating to public administration on the request of the Attorney-General
To find out more information or make a complaint see the ICAC website
Complaints against a council may arise from a decision made by the council or an action they have taken. They may include complaints about services provided or conduct of council employees or council members.
The first step in any complaint against a council is to contact your council office or your local council member to make the complaint.
For contact information for all South Australian councils see the Local Government Association of SA website.
The complaints process may vary depending on the type of matter it is so it is important to ask the council for assistance in how to make a complaint for a particular matter. For instance, a complaint about animal control under the Dog and Cat Management Act 1995 will have a different procedure to a complaint about how a property has been valuated.
If you are not satisfied with the outcome you can ask the council for an internal review [see Local Government Act 1999 (SA) s 270]. This request must be made in writing. Councils must make available their policy and procedures for conducting an internal review.
If the complaint has not been resolved through internal review you can contact the South Australian Ombudsman. The Ombudsman has the power to investigate complaints against local government agencies. They also conduct reviews of freedom of information decisions made by councils.
Certain council decisions can also be reviewed by the South Australian Civil and Administrative Tribunal (SACAT) [see, for example, section 256 of the Local Government Act 1999 (SA)].
Schedule 2A of the Local Government (General) Regulations 2013 (SA) provides for a Code of Conduct for council employees. This code includes, amongst other provisions, that a council employee cannot seek out or receive a gift or benefit that influences their performance as an employee. Each council is also required to maintain a register of gifts and benefits of a certain value received by employees.
See Local Government (General) Regulations 2013 (SA) Schedule 2A.
A Code of Conduct for council members has also been adopted [see Local Government (General) Regulations 2013 (SA) reg 7]. A copy of the Code of Conduct for members can be located in the South Australian Government Gazette.
For information on how to object to property valuations see Complaints about taxation (State government).
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.