Thursday, 22nd of March, 2018

Government, Administration and Justice


What is an Ombudsman?

The office of the Ombudsman plays an important role in ensuring government accountability. Ombudsman offices provide a means of complaint or appeal for people who have encountered problems with the administrative actions of government departments; other departments and authorities can make complaints as well. The range of Ombudsman offices – financial, legal, energy, indicate the broad range of topics with which an Ombudsman can become involved on behalf of a complainant. There is a long history attached to the office of the Ombudsman. The office dates back to the Control Yuan in China some 2000 years ago. The original Ombudsman of China did not advocate for the individual but rather for the system as a whole. The Swedish institution, which began in 1809 is largely identified with systemic improvement, not with individual representation, but there is little doubt that it has acted to uphold the rights and interests of individuals. The role of the Ombudsman exists in many different cultures and government systems. 

Ombudsman Offices

The Tasmanian Ombudsman

The functions of the Ombudsman in Tasmania are to ‘investigate the administrative actions of public authorities to ensure that their actions are lawful, reasonable and fair.’ He can initiate an investigation when there is a complaint and also on his own initiative. Government departments, local councils, water and sewerage corporations, prisons, state-owned companies, energy companies, and Government Business Enterprises fall under the jurisdiction of the Ombudsman.

The Commonwealth Ombudsman

The Commonwealth Office of the Ombudsman ‘handles complaints, conducts investigations, performs audits and inspections, encourages good administration, and carries out specialist oversight tasks’. The Commonwealth Ombudsman Act establishes the offices of the Defence Force Ombudsman, the Postal Industry Ombudsman, and the Overseas Student Ombudsman. These offices are all held by the Commonwealth Ombudsman. Other areas that the Commonwealth Ombudsman has jurisdiction over include Immigration, Law Enforcement, Taxation, and the ACT.

The Office of the Ombudsman office is not answerable to State or Federal Parliament, as it is an independent office. The Ombudsman may recommend changes to administrative practices or even to existing legislation. It should be stressed that the Ombudsman does not act as an advocate for complainants. The role of the office is to carry out investigations independently and impartially, and to make recommendations that are for the benefit of all. The end result of an investigation may not always satisfy a complainant but the fact that the grievance has been looked at by an independent body should be reassuring.

The Telecommunications Industry Ombudsman

This Ombudsman is not a government agency, but an independent group, provided for under the Telecommunications (Consumer Protection and Service Standards) Act 1999. This Ombudsman deals with complaints about telecommunication services such as Telstra and Optus, etc. They can be contacted via email and phone, 9am to 530pm, Monday to Friday. Their hotline is 1800 062 058, and they provide an online complaint form.

The Financial Ombudsman Service

The Financial Ombudsman helps resolves problems and disputes with banks through dispute resolution services. They receive complaints from individuals and small businesses. They investigate complaints and can make decisions that are binding on a financial provider. Their contact details are: Level 5, 31 Queen Street, Melbourne, VIC 3000. They are contactable Monday to Friday 9am to 5pm. The telephone contact is 1300 780 808. Email is:

Defence Force Ombudsman

The Defence Force Ombudsman is part of the Commonwealth Ombudsman Office. This ombudsman investigates complaints about administrative actions and employment matters. They can investigate complaints from serving members only after the internal grievance mechanisms are exhausted, unless there are exception circumstances. Ex-service personnel or their families can make a direct complaint. Complaints should be directed to the Commonwealth Ombudsman.

Tax Ombudsman

The Tax Ombudsman is actually a specialist team within the Commonwealth Ombudsman office. They recommend attempting to resolve issues with the ATO before proceeding to the Ombudsman complaint mechanism. See the website for details. Contact the Commonwealth Ombudsman for this specialist area.

Legal Ombudsman

There was an office of this name in Tasmania, however it was abolished and its functions taken over by the Legal Profession Board of Tasmania.

The Energy Ombudsman

The Energy Ombudsman is a purely state function, so there is a Tasmanian Energy Ombudsman. For greater detail, see the Energy Ombudsman section.

State and Federal Ombudsmen Offices

The Ombudsman carries out a series of other functions related to the administration of government. These often cover specific statutes, and the areas that an Ombudsman can investigate are different at State and Federal levels. Generally speaking, a Commonwealth Ombudsman receives complaints and hears appeals on Commonwealth matters. State Ombudsmen, such as the Tasmanian Ombudsman, receives complaints and hears appeals arising from State administrative functions.


At the State level, the Tasmanian Ombudsman can receive complaints and hear appeals on issues that arise from local government and Tasmanian state government department decisions. This includes such bodies as:

  • Hobart City Council (and other municipal councils); ans
  • State government departments, such as the Department for Primary Industry, Parks, Water, and Evironment (DPIWE).

The Tasmanian Ombudsman provides a free, independent complaint handling service to investigate complaints about administrative actions of Tasmanian Government Departments, most statutory authorities and Local Government. The Ombudsman is also the final review body for Right to Information requests.

The Ombudsman is an independent person who investigates complaints by gathering evidence from both sides, whilst not acting as an advocate for either, and making a decision based on the principles of what is generally accepted to be fair and reasonable. The Ombudsman has the power to make recommendations to government departments, most statutory authorities or councils for remedial action or reversal of a decision.

In Tasmania, the statutory functions of the Tasmanian Ombudsman include:

The Commonwealth

The federal, or Commonwealth Ombudsman, addresses administrative complaints and appeals that arise from Commonwealth legislation and Commonwealth departments. As mentioned, this includes areas such as:

  • the Defence Force;
  • the Postal Industry;
  • Overseas Students;
  • Immigration;
  • Law Enforcement;
  • Taxation; and
  • The Australian Capital Territory (ACT).

The Commonwealth Ombudsman is an independent person appointed to investigate complaints about Commonwealth Government agencies like Centrelink or the Tax Office, and has headquarters in Canberra.

The Ombudsman’s Office has two important functions. Firstly, the Ombudsman can investigate and resolve citizens’ complaints. Secondly, but equally as important, the Ombudsman can improve public administration by identifying problems within the system and recommending changes which will prevent further occurrences of the same problem.

Most complaints to the Ombudsman concern agencies like the Australian Taxation Office, Centrelink and the Child Support Agency. Many of these complaints came from people living in regional Australia.

The Commonwealth Ombudsman’s Office was one of the first government agencies to go online. The Ombudsman’s website provides access to information, contact details for any of its offices and an electronic complaint form.

For some years now the Ombudsman’s Office has operated a National Complaints Line (telephone 1300 362 072) which enables people living in regional Australia to connect with their nearest Ombudsman Office for the cost of a local call. Australians living away from the main population centres suffer the same types of problems as other Australians. They all pay tax and members of such communities are involved with the Child Support Agency, Centrelink or the Department of Veterans’ Affairs for income support payments and other services. Employment services, training and education are also important issues in regional Australia.

Complaints about the government agencies mentioned account for most of the Ombudsman’s work. Many of these complaints are caused by simple agency or client error and around 50 per cent of cases are resolved in less than a week. Complex cases can take much longer to resolve.

A person with a complaint should always try to resolve their problem with the government agency concerned before coming to the Ombudsman’s Office. The Ombudsman’s Office may not investigate if the person has not tried the agency first.

The Commonwealth Ombudsman has powers under numerous Acts. Some of these are Commonwealth, and some are ACT. The most important of the Commonwealth Acts are the:

Other areas of jurisdiction, such as immigration and defence are covered in the Ombudsman Act 1976. This Act gives authority to the Ombudsman office to receive and investigate complaints in these areas.

What Can the Ombudsman Investigate?

What the Ombudsman can Investigate

The Ombudsman can investigate complaints about the administrative actions of government departments or authorities.

In Tasmania, this includes most bodies (known as ‘public authorities’) established by the State government, as well as local councils. A few agencies are specifically excluded from its jurisdiction. The Ombudsman’s office will advise whether a particular body falls within the State or

Commonwealth Ombudsman’s jurisdiction

The Ombudsman has the power to look into:

  • administrative actions of a department or prescribed authority;
  • decisions or recommendations;
  • refusal or failure to take some action or to make a decision or recommendation; and
  • delays in taking action or in communicating with a complainant.

In addition, under section 28(1) of the Ombudsman Act 1978 (Tas) the Ombudsman may investigate actions that:

  • appear contrary to the law;
  • are unreasonable, unjust, oppressive, or improperly discriminatory whether or not they are according to a law;
  • were taken in the exercise of a power/discretion and were so taken for an improper purpose or on irrelevant grounds or on the basis of irrelevant considerations;
  • required an explanation but none was given; and
  • were made wholly or partly on a mistake of law or fact or were wrong.

Under the Right to Information Act 2009 (Tas) section 44, the public may apply to the Ombudsman for a review and, if warranted, a fresh determination in relation to agency decisions to exempt information. The office also provides assistance and advice to agencies with regard to the interpretation and administration of the Right to Information Act, as well as workshops on the Right to Information Act. As this is a new Act, the website provides comprehensive cover.

What the Ombudsman Cannot Investigate

The Tasmanian Ombudsman cannot investigate:

  • private disputes between citizens or between an individual and a private enterprise;
  • action taken by a government minister and cabinet;
  • actions in relation to a Bill, regulation, rule or bylaw;
  • actions of Parliament generally;
  • legal proceedings;
  • royal commissions;
  • judges/magistrates;
  • action taken by a legal adviser to the Crown, by the Tasmanian Industrial Commission or by the State Service Commissioner.

The Ombudsman cannot investigate matters where a government policy is clearly being implemented as intended. However, recommendations or advice given to a minister by a department or authority or the way a ministerial decision is implemented can be investigated. If, in the Ombudsman’s view, the advice is wrong or the decision has been incorrectly implemented, then the Ombudsman can advise the minister to that effect.

Employment Matters

Under the provisions of the Tasmanian State Service Act 2000 (Tas), employment matters affecting public servants generally are dealt with by the State Service Commissioner. Decisions taken by the Commissioner are specifically excluded from the Ombudsman’s jurisdiction. However, there are circumstances under the Public Interest Disclosures Act 2002 (Tas) that allow for the State Service Commissioner to pass a disclosure issue to the Ombudsman.

There are some authorities, including local government, which are not covered by the State Service Act. In those cases, the Ombudsman may be the appropriate avenue of redress. The Ombudsman’s Office can advice on this.

Can the Ombudsman Refuse to Investigate a Complaint?

The Ombudsman may decline to investigate complaints if a suitable alternative remedy is available or if the Ombudsman considers investigation would not be worthwhile.

Some of the matters which the Ombudsman will consider when deciding if a complaint should be investigated are:

  • is the complaint trivial, frivolous or vexatious? An example of this is where a person complained about a penalty of 19 cents for late payment of council rates: the Ombudsman declined to investigate the complaint on the grounds that the complaint was trivial;
  • is the complainant directly or sufficiently affected by the matter being complained about?
  • could the matter still reasonably be resolved by internal complaint procedures?
  • is there an alternative review process by a court or tribunal available, e.g. the Resource Management and Planning Appeals Tribunal?

There may also be times when a complaint is best investigated by the Ombudsman even if there are other complaint handling mechanisms such as:

  • if there are personal factors (such as age or health) which may affect a complainant’s ability to obtain redress elsewhere;
  • if the facts might be better established using the Ombudsman’s investigative powers, e.g. few of the ordinary legal limitations on the production of evidence in court, especially those that protect the disclosure of the files of government authorities, apply to the Ombudsman’s investigations.

The intention generally is to avoid unnecessary duplication of efforts and resources whilst at the same time endeavouring to ensure justice is achieved for a complainant.

Time Limits

As a general rule the Tasmanian Ombudsman cannot investigate actions taken more than two years before the complaint is made.

Complaining to the Ombudsman

Who Can Complain?

Anyone can complain to the Ombudsman; individuals, organisations or incorporated bodies. Even a government agency can complain about the administrative actions of another agency. Complaints must normally be made by the person affected by the administrative action but in special circumstances the complaint may be lodged by an agent such as a close relative, a welfare officer or a solicitor.

When to Complain

The Ombudsman acts as an office of last resort. This means that a person should first try to resolve their problem by talking or writing to the agency concerned. If they have not already done so, the Ombudsman will usually refer them back to the agency.

Sometimes the matter can be resolved satisfactorily just by asking a department to reconsider its action or decision. However, if the person is still not satisfied, or if there is an unreasonable delay in answering their request, then they should contact the Ombudsman.

How to Make a Complaint

The Tasmanian Act refers to complaints being made in writing. However, in practice the Ombudsman is willing to receive complaints orally, by email, by telephone or in person. The Ombudsman aims to make it as simple and as easy as possible for a person to air a grievance. The Ombudsman may require them to provide details in writing, in which case the Ombudsman’s staff will provide any assistance which is necessary. Difficulty with English or some other problem should not deter a person from complaining. Interpreter services can be arranged if necessary. The website has been made more accessible with ESL links.

Appointments can readily be made by telephoning the hotline, or lodging an inquiry online. Officers may also undertake site visits.

What Should be Included in the Complaint?

The person should state the facts of the dispute, avoiding their own opinion. They should identify the administrative action or decision which has caused the complaint, giving:

  • the name of the government agency;
  • the date or dates on which the actions occurred; and
  • if known, the person who took the action.

They should include the reasons why they consider the action or decision to be defective or unreasonable and what they would like done about it.

If the complaint is made in writing, they should include copies of any relevant written material which might assist the Ombudsman’s enquiries or bring this with them if they come in person.

In the course of an investigation the Ombudsman may copy materials provided by a complainant and forward them to the authority complained about. Hence any information a complainant wishes to keep confidential should be marked ‘confidential for the information of the Ombudsman’. This may however have the effect of slowing down an investigation.

What will it Cost?

There is no charge for the Ombudsman’s services.

Conduct of Investigations

The conduct of the Ombudsman’s investigation can be summarised as follows:

  1. The Ombudsman is required to undertake investigations in private, otherwise investigations may be conducted in such manner as the Ombudsman thinks fit.
  2. The Ombudsman needs to establish the facts about a complaint. For this purpose the Ombudsman has wide powers to inspect government premises and files, to require persons to answer questions and to examine witnesses on oath. In most cases departments are very cooperative and investigations are carried out informally.
  3. The complainant is entitled to know the outcome of any investigation. A more detailed report on the conduct of the investigation may also be made available but the Ombudsman is not required to do so. The reason for this is that sometimes a report may contain material which is privileged or otherwise highly confidential.
  4. The Ombudsman adheres to the principles of Natural Justice, allowing an authority and individuals an opportunity to respond to the views formed by the Ombudsman.
  5. If the Ombudsman is unable to investigate a complaint or decides at any point not to proceed further, the reasons for that decision will be explained to the complainant.
  6. Penalties are prescribed for hindering or obstructing the Ombudsman or for failure to comply with a lawful requirement of the Ombudsman.

Procedures upon Completion of an Investigation

When investigating a complaint, the Ombudsman may find administrative actions to be defective on a number of grounds, including that the action:

  • appears to be contrary to law;
  • is unreasonable, unjust or oppressive;
  • is in accordance with a particular law, but the law itself is unjust or unreasonable;
  • involves improper discrimination against an individual or category of persons;
  • involves the exercise of a discretion which was based on irrelevant considerations; or
  • in all the circumstances, was wrong.

The Ombudsman may also decide that although an agency’s decision may have been reasonable it did not explain its reasons adequately and may recommend that it does so.

The Ombudsman cannot substitute a decision for that of a department or authority. If there is nothing unfair or improper about the way a decision has been reached, the Ombudsman will not go on to consider whether, in the same circumstances, a different decision might have been made.

Recommendatory Powers

The Ombudsman may make such recommendations as the Ombudsman thinks fit, for example, that a decision be changed or at least reconsidered; that a practice upon which a decision was based should be varied; or that a law should be amended or repealed. The Ombudsman may also request that a head of an agency notify the steps taken to give effect to any recommendations. Sometimes the Ombudsman will recommend that an ex gratia payment be made to a complainant to compensate for the consequences of an administrative action which, although lawful, was in the circumstances unfair or unreasonable.

What if the Agency does not accept the Ombudsman’s Recommendations?

The Ombudsman cannot force a department or authority to accept recommendations. However, under the Ombudsman Act, the Ombudsman can report directly to the relevant minister on the matter. If the recommendation is still not implemented, the Ombudsman may send a report to the Premier and ultimately table it in both Houses of the State Parliament.

The power to publicise the results of an investigation by tabling a report in Parliament or through the annual report is the Ombudsman’s ultimate sanction. The Ombudsman is also vested with the discretion to make reports (through the media) to the public.

Complaints Against Police

Under both the State and Federal Ombudsman Acts the Ombudsman has power to deal with complaints made by citizens against police and by prisoners against the prison authorities.

People who believe they have been treated unfairly by the police should be aware that they are entitled to make a complaint and should not be afraid to exercise their right to do so. They should be aware that any delay in making a complaint will make it more difficult to investigate.

Some complaints against police are of a minor nature and referred to as customer service issues. These matters may be easily reconciled. An interview of the complainant by a more senior police officer may be sufficient to resolve the matter. The Ombudsman can check with the complainant that they are happy with the outcome if this course of action is taken.

Internal Investigation

The majority of more serious cases are referred in the first instance to Police Internal Investigations. This is a body within the police service which police consider to be independent. Complainants are advised that they may subsequently take the matter up with the Ombudsman if they are dissatisfied with Internal Investigation’s findings. It is rare for the Ombudsman to conduct the final investigation.

How to make a Complaint

Complaints can be made in writing or by word of mouth. In this case a Police Internal Investigations officer will take a written statement or conduct an audio interview with the person making the complaint and any witness they have. However, it may be better to get legal advice and make a complaint in writing. The Police Internal Investigations officer should be invited to interview witnesses and advised if a medical report is being prepared.

Where physical mistreatment is alleged to have occurred, the person should go to a doctor as soon as possible and obtain a written report. A detailed description of the actions which caused the injury should be given to the doctor so that the doctor can say whether or not the injury is consistent with that account. The report can be forwarded later.

What Happens Once the Investigation is Completed?

When the internal investigation has been completed, the Commissioner of Police or a delegate (usually the Deputy Commissioner) reviews the internal investigation and finds either that:

  • the complaint is unsubstantiated and no further action is warranted; or
  • a criminal charge should be laid against a police officer; or
  • disciplinary proceedings should be commenced; or
  • the police officer should be counselled or cautioned regarding the conduct.
  • The complainant will be advised of the outcome.

Review by the Ombudsman

Generally speaking, complainants are required to take their complaint direct to the police first for II investigation. If complainants remain dissatisfied after this internal investigation then the Ombudsman will review that investigation to ensure it has been carried out correctly. When the Ombudsman reviews a complaint that has already been investigated by II, or some other police officer on their behalf, it is not the Ombudsman’s role to carry out the police task of investigating crime and offences and reinterviewing all the witnesses. If the Ombudsman is satisfied that a complaint has been properly investigated, then it will not go any further. It is only if a review of the Police Internal Investigation shows a deficiency in the investigative process that the Ombudsman will take the matter further.

Once the Ombudsman has reviewed a matter, one of the following decisions may be made:

  • seek further investigation and review by the police;
  • find the complaint sustained;
  • find the complaint not sustained;
  • find that because of conflicting evidence, it is not possible to be satisfied one way or the other whether the complaint is sustained;
  • decline to take the matter further because court action is pending; or
  • conduct a separate investigation.

The Ombudsman has broad powers to re-investigate a complaint against the police. Documents must be made available and individuals can be required to answer questions. There is also power to conduct a formal hearing and a police officer, the complainant or any independent witness can be questioned on oath.

In certain circumstances the Ombudsman will investigate complaints without requiring them to be investigated by the police first. This is a matter for the discretion of the Ombudsman.

The Ombudsman does not give legal advice. Complaints about penalty notices and most complaints about being charged by police will not be investigated by the Ombudsman. It is the Court’s role to decide the facts in these cases.

Normally, the Ombudsman will not commence an investigation into any administrative action where more than two years has elapsed since the action was alleged to have taken place.

The Energy Ombudsman: Tasmania

There is no Commonwealth Energy or Water Ombudsman. Energy is always a State issue. The Tasmanian Energy Ombudsman can receive, investigate and resolve complaints about energy entities. The complaints may be about any service the electricity or natural gas company provides to consumers including:

  • Disputed accounts and high bills;
  • Debts and arrears;
  • Disconnection or restriction of supply;
  • Actions of a supplier that affect your property;
  • Reliability and quality of supply (including claims for compensation);
  • Connection or transfer issues; and
  • Poor customer service.

To make awards and register agreements between parties

The Energy Ombudsman has a determinative power to make monetary or other awards against an electricity entity. Under the Energy Ombudsman Act 1998 (Tas) provides for a determination with an award of up to $20,000 and, with the approval of the entity concerned (such as Aurora), an award of up to $50,000 may be made (s23(2)). The Energy Ombudsman may also order an entity to waive charges, provide services or to take or refrain from taking an action which will ensure a fair outcome in all circumstances (s24).

To identify and review systemic issues arising out of complaints

A significant proportion of the role of the Energy Ombudsman is to identify issues that appear to be occurring repeatedly. The resolution of these problems may simply involve re-emphasis of an existing policy or procedure, or it may involve considerable behavioural or policy change. The ultimate aim is to ensure customers are dealt with in a fair and reasonable manner and that their rights and responsibilities are communicated and well understood.

To assist energy entities to develop procedures to resolve complaints

In addition to complaints resolution, the Act prescribes a pro-active function. This includes the identification and review of issues arising out of complaints. For example, there may be a significant number of complaints claiming erroneous or conflicting advice given to customers. Investigations may find internal communication problems within an entity’s operations. The Energy Ombudsman must also be pro-active in assisting entities to develop procedures to resolve complaints.

The Energy Ombudsman is an industry ombudsman and does not act as an advocate for the complainant or the energy entity and, unlike a lawyer, has no client.

Dismissing Complaints

Under section 10 of the Energy Ombudsman Act 1998, the Energy Ombudsman must dismiss a complaint if:

  • the complaint lacks substance; or
  • the complaint is frivolous, vexatious or was not made in good faith; or
  • the complainant became aware of the circumstances that gave rise to the complaint more than two years before the complaint was made; or
  • the complainant has been given reasonable explanations and information and there would be no benefit in further entertaining the complaint; or
  • the complaint has been resolved; or
  • court proceedings which relate to the subject matter of the complaint have been commenced; or
  • all of the issues arising out of the subject matter of the complaint have been adjudicated upon or otherwise dealt with by the Regulator or a court, a tribunal, a board or another person under a law of Tasmania, the Commonwealth, a Territory of the Commonwealth or another State.

Who can make a complaint?

Any member of the public can approach the Energy Ombudsman’s office to lodge a complaint against any of the energy companies in Tasmania (s6). This can be done in various ways: telephone, a visit in person to the Energy Ombudsman’s office, writing and detailing the relevant issues of complaint, fax or e-mail. The energy entities in Tasmania are Government-owned commercial organisations:

  • Aurora Energy Pty Ltd is solely responsible for the retail and supply of energy to industrial, commercial and residential customers: this area constitutes 99% of complaints received by the Energy Ombudsman;
  • Transend Networks Pty Ltd is responsible for the distribution of power from dams and generators and owns the energy infrastructure such as pylons and sub-stations;
  • The Hydro Electric Corporation is responsible for power generation and owns the dams and generators.

Complaints to the Energy Ombudsman received by telephone can be handled in an informal and quick manner. Interviews are available by appointment to discuss complaints with any of the officers if desired. However, internet complaints are increasingly popular as the use of the internet and email grows.

Types of Complaints

A complaint can be broadly defined as a grievance, or an expression of dissatisfaction with an energy entity’s policies, procedures, charges, employees, agents, quality of service or products sold or provided.

The Energy Ombudsman can only investigate and resolve complaints from people who have tried and failed to resolve problems with energy entities and as a result feel powerless in attaining a satisfactory outcome.

An example of a simple dispute resolution would be where a customer has been refused re-connection until they pay an amount in arrears. After discussions with Aurora, the customer may be offered an easier payment arrangement.

An example of a complex dispute where there is little chance of resolution through negotiated outcome would be a surge liability claim where the energy entity denies all liability. Such a complaint may end with a formal determination.

Freedom of Information and the Right to Information

Commonwealth - Freedom of Information

Commonwealth Legislation

The Freedom of Information Act 1982 (Cth)

The Commonwealth was the first to introduce freedom of information legislation in Australia in 1982, followed over a ten year period by all States and Territories. The Commonwealth Freedom of Information Act 1982 (the FOI Act) is administered by the Information Commissioner.

Pro-disclosure culture

The objects of the FOI Act are a clear statement of the intention to promote disclosure of information held by government. The objects include to:

  • give the Australian community access to information by requiring agencies to publish the information, and provide a right of access
  • contribute to increased participation in government processes and increased scrutiny, discussion and review of government activities
  • increase recognition that information held by government is a national resource
  • promote public access to information, promptly and at the lowest reasonable cost.

The FOI Act sets out a process for ensuring the public's right to access documents held by government, but it does not prevent agencies from disclosing information outside that process.

The Commonwealth Act exempts a number of agencies from the operation of the Act or exempts certain types of documents. These include some agencies engaged in commercial operations such as the Commonwealth Banking Corporation, or security organisations such as the Australian Secret Intelligence Service and the Australian Security Intelligence Organisation. The only exempt agency under the Tasmanian Act is the TT-Line. However, certain categories of information are exempted from the operation of the Tasmanian Act by various Acts of parliament. These include confidential records under the Mineral Resources Development Act and some Council documents under the Local Government Act.

Requests for Information

Who Can Apply?

Any person can apply for information. A ‘person’ can be an individual, a next of kin applying for information about a deceased person, or a body corporate or unincorporate. The person does not have to be resident in Tasmania or an Australian citizen to apply. No reason need be given for wanting information.

How to Apply?

Requests for information must be in writing and must contain sufficient details of the information required to enable the agency to identify the information sought (s15). There is no official form required by the Act, however most agencies have a printed form available. Requests should then be sent to the agency which is believed to have the information. Commonwealth agencies are required to publish ‘statements of affairs’ which include categories of documents the agency holds (s8(2)(g)(ii)).

Time limits

Under the Commonwealth Act the time limit for fulfilling a request is 30 days, with provision to extend the period for a further 30 days in certain exemption cases (s15(5)-(6)).

Assistance and Consultation

An applicant should be given assistance and, where appropriate, the opportunity to consult with the agency, so as to enable them to be provided with the information sought.


There are no charges under the FOI Act. The fee structure was abolished as the fees were seen as a substantial barrier to achieving greater access to information.

Freedom of Information Decisions

Information may be provided in the following ways:

  • the applicant may inspect the record;
  • the applicant may receive photocopies of the record;
  • the applicant may hear tapes or view films; and
  • a transcript may be provided.

Where a document contains both exempt and non-exempt information, a copy of the document can be supplied with deletions noted (s22).

Decisions Not to Provide Information

An applicant may be refused access to information for the following reasons:

  • the applicant is not entitled to the information, for example, the information sought is exempt under Part IV;
  • provision of the information is deferred because it is required to be, and is not yet published, or it is prepared for presentation to Parliament, and is yet to be presented (s21);
  • the work involved in giving access would unreasonably divert the resources of the agency from its other operations, having regard to the amount of information and difficulties in identifying, locating or collating the information and difficulties in identifying, locating or collating the information (known as a voluminous request) (s24).

The applicant must be notified in writing of the decision, be given a statement of reasons for the decision and be advised of the right of review.

Nature of the Information


Documents or parts of documents can only be withheld if they are exempt under the FOI Act. Exempt documents are:

  • documents affecting national security, defence, international relations
  • Cabinet documents
  • documents affecting the enforcement of the law and public safety
  • documents to which specified secrecy laws apply
  • documents subject to legal professional privilege
  • documents affecting the national economy
  • documents containing material obtained in confidence
  • documents, disclosure of which would be contempt of court or Parliament
  • documents disclosing trade secrets or commercially valuable information
  • electoral rolls and related documents

Exempt documents are usually essential to protect the system of government, or the legitimate interests of third persons who deal with government. The interests of government include national security, the administration of justice, and the ability of Ministers to make decisions. Exemptions are intended to provide a balance between the rights of the public to obtain access to government held documents, the interests of third parties, and the functioning of government. The rationale for the exemptions is that disclosure of the particular information would:

  • cause damage to business interests. Commonwealth-State relations or law enforcement;
  • breach personal privacy, confidentiality, or secrecy; or
  • have an adverse effect on operations of agencies or their decision making processes.

Public Interest Test

In determining whether disclosure would be contrary to public interest, the Commonwealth Act sets out two stages. The first stage is looking at whether the document is already conditionally exempt. Under s11A(5) conditionally exempt documents must be disclosed unless the disclosure is contrary to public interest. So, first it must be determined if the document falls into this category.

The public interest test is set out at section 11B  Factors favourable to disclosure to be taken into account after this point include whether access to the document would promote the objects of the FOI Act, inform debate on a matter of public importance, promote effective oversight of public expenditure, or allow a person to access his or her own personal information (s11B(3)). As with the Tasmanian Act, there is a list of irrelevant factors, though not so extensive (s11B(4)). These include whether disclosure would result in embarrassment to the Commonwealth government, or a loss of confidence in the government, the disclosure could result in a misinterpretation or misunderstanding of the document; the author has high seniority in the agency to which the request was made; or the document could result in confusion or unnecessary debate. Some of these factors are obviously highly subjective. Who decides what is ‘unnecessary debate’ or whether there would be ‘misunderstanding of the document’?

There are guidelines that agencies and Ministers must have regard to in making a decision on public interest, which are published by the Information Commissioner. There is a general pamphlet for the public available on public interest. The guidelines are also available.

Matters to be taken into account include informing the community, assisting in addressing deficiencies in government, promote effective oversight of public expenditure, and many of the other factors explicitly stated in the Tasmanian Act.

The FOI Act also provides a series of documents that are automatically considered to be conditionally exempt. These are documents that bear on:

  • Commonwealth-state relations;
  • Deliberative processes of government;
  • Financial or property interests of the Commonwealth or Norfolk Island;
  • Certain operations of agencies (for example, security agencies);
  • Personal privacy;
  • Business;
  • Research; and
  • The economy.

Exemptions are to be claimed only where the relevant information is genuinely sensitive and real harm will be caused by their disclosure. They are not to be claimed simply because they are technically available. See Part IV of the FOI Act. An agency is not bound to refuse disclosure of a document which falls within an exempt category; that is, the exemptions are "permissive", and a document can be disclosed whether it is exempt or not under the FOI Act. More than one exemption may be claimed.

Information not Available Under FOI

The FOI Act does not apply to information contained in a record which may be inspected by the public in accordance with another Act; or information which may be purchased from an agency or which is available through the Archives Office.

Age of the Information

A person is entitled to information of any age held by an agency if it relates to that person’s personal affairs. Otherwise a person is entitled only to information which is incorporated in a record of an agency on or after 1 December 1977 for Commonwealth documents.

Personal Information

Personal information about an individual is usually accessible to that individual only. Information is exempt if its release to an applicant would involve the unreasonable disclosure of a third party’s personal affairs. People who find information in their personal records which is incorrect, misleading, incomplete or out of date also have the right to seek to have the records amended. Regardless of when a file was created, an individual can access their personal documents. If a third party requests access to another person’s personal information, the body of whom the information is requested must consult with the individual whose information has been requested.

Review and Complaint

The Office of the Australian Information Commissioner (OAIC) website provides a comprehensive discussion of the review process.

Applicants seeking a review of an FOI access decision can access an internal review by the agency or the Information Commissioner. The immediacy of this right is intended to provide an incentive for agencies to ensure the best possible access decision is made at first instance. Reviews are usually merits based.

Information Commissioner reviews (IC reviews) are a simple, practical and cost-efficient system for external merits review. Most matters are reviewed on the basis of the submissions and papers provided by the parties, rather than through formal hearings. Agencies and ministers are required to assist the Information Commissioner to make the correct decision.

Review officers will consider the primary material in their early evaluations of the merits of the review case and make preliminary inquiries of the agency or minister involved. An application may be resolved by agreement between the parties, but in other cases the Information Commissioner may issue a written determination affirming, varying or setting aside and substituting the access decision. Applicants who disagree with the Information Commissioner's decision can apply to the Administrative Appeals Tribunal (AAT) for review of the Information Commissioner’s decision.

An FOI applicant does not bear an onus of proof in either IC review or AAT review. This means that they do not have to further argue their case, rather, in an IC review, the agency or minister must establish that their decision is justified. In AAT proceedings, the agency or minister refusing the FOI request must establish that a decision adverse to the FOI applicant should be given.

To manage access requests that are clearly unreasonable, the Information Commissioner can restrict an applicant's access rights by declaring the person to be a vexatious applicant.

You can request a review in writing or online. You can also make a complaint in a similar way. See the OAIC website for details about the online forms, and for the FOI Fact Sheet on review and complaint rights.

Tasmania - Right to Information

Right to Information in Tasmania

Government agencies hold an enormous amount of information about each one of us personally and also of a more general kind. This information is in many forms. Personal information is contained in files, reports and computer records. General information is contained in reports, submissions, manuals of procedure and rules. It is on the basis of this information that government agencies make the decisions that affect our lives. It is therefore very important that citizens have access to such information. However, there was never any general right in law to have access to information held by government agencies, and it is only with the advent of freedom of information (FOI) legislation that citizens have such a right.

In 2009, the Tasmanian government passed the Right to Information Act 2009 (Tas). This replaced the Freedom of Information Act 1991 (Tas). So, in Tasmania, we now refer to freedom of information as the right to information. In addition to the Right to Information Act, there is also the Right to Information Regulations 2010.

The legislation

The Legislation

The Right to Information Act 2009 (‘the Tasmanian Act’) is a comprehensive Act, defining the boundaries of citizen rights to access government information, where that information would not be available without a request. This includes:

  • procedures for applications for disclosure of information 
  • assessment of applications
  • reviews of decisions
  • government agencies or bodies that are exempt from disclosure obligations
  • the public interest test
  • offences under the Act
  • protection against civil and criminal prosecutions and
  • directions to the Ombudsman over guidelines for processes and factors to be taken into account in assessing information disclosure requests.

The Regulations set out the minimum information to be contained in an application for assessed disclosure, and the minimum information to be provided to an applicant by a public authority.


There are four types of disclosure defined in the Act. Only ‘assessed disclosures’ are governed by the Tasmanian Right to Information Act (hereinafter 'the Tasmanian Act'):

  1. Required disclosures, which are required by law. Annual reports are an example;
  2. Routine disclosures, made by a public authority in relation to information deemed to be of public interest;
  3. Active disclosures, which are what disclosures made in response to a request for information placed outside the framework of the Tasmanian Act. This would include information such as an informal request over the telephone for information. An example would be phoning the Department of Premier and Cabinet and asking when the Premier’s next press meeting would be scheduled; and
  4. Assessed disclosures, which are disclosures assessed and made under the Tasmanian Act. This covers information in the possession of a public authority or Minister that is not otherwise available by one of the three previous types of disclosure.

Assessed disclosure is the disclosure of last resort and applications for assessed disclosure have dropped off since the Tasmanian Act commenced as most public authorities have put schemes in place to release information without the need for an application.  Public authorities are required to advise the public disclosure schmes and generally do so via their websites.

Applications for assessed disclosures

Under section 7 of the Tasmanian Act, any person has a legally enforceable right to be provided with information by a public authority or Minister. This right is subject to exemptions.

Exclusions from disclosure of information requirements

Section 6 of the Tasmanian Act lists the persons or public authorities who are excluded from disclosing documents in their possession where those documents are unrelated to the administration of their role. These persons and public authorities are:

  • the Governor;
  • a court;
  • a tribunal;
  • the Integrity Commission;
  • a judge;
  • an associate judge;
  • a magistrate;
  • the Solicitor-General;
  • the Director of Public Prosecutions;
  • the Ombudsman;
  • the Auditor-General;
  • the State Service Commissioner;
  • the Anti-Discrimination Commissioner;
  • the Public Guardian;
  • the Health Complaints Commissioner;
  • Parliament; and
  • a Member of Parliament.

Exempt Information

Part 3 of the Act also list types of information which may be exempt.  Exempt information falls into two categories:-
information which is exempt by nature:

  • Executive Council information (s25);
  • Cabinet information (s26);
  • Internal briefing information of a Minister (s27);
  • Information not relating to official business (s28);
  • Information affecting national or state security, defence or international relations (s29);
  • Information relating to enforcement of the law (s30);
  • Legal professional privilege (s31); and
  • Information related to closed meetings of council (s32).

And information which is only exempt if it is to the public interest to release the information, including:

  • Information communicated by other States or Territories (s34);
  • Internal deliberative information (draft etc) (s35);
  • Personal information of a third party (s36);
  • Information reated to the business affairs of a third party (s37); and
  • Information related to the business affairs of a public authority.

Public interest test

The public interest test is set out at section 33 and is simply that information will be exempt if the principal officer of a public authority or a Minister considers, after taking into account all relevant matters, that disclosure is contrary to public interest, then the information is exempt from disclosure. The Public Interest test only applies to categories of information set out in Sections 34-42. That is, if the information you are requesting does not meet one of the exemptions listed in Sections 25 to 32 or Sections 34 to 42, then even if the public authority or Minsiter consider its disclosure would be contrary to the public interest to disclose the information, they must give you the information.

Schedule 1 of the Tasmanian Act contains a non-exhaustive list of matters to be considered in deciding whether disclosure is contrary to public interest. This includes matters such as promoting or harm public health or safety, or both, whether it would promote or harm the administration of justice, and whether the disclosure would be contrary to the security or good order of a prison or detention facility.

Schedule 2 sets out the matters that are irrelevant to the consideration of a decision maker in assessing whether the disclosure would be contrary to public interest. These irrelevant considerations are:

(a) the seniority of the person who is involved in preparing the document or who is the subject of the document;

(b) that disclosure would confuse the public or that there is a possibility that the public might not readily understand any tentative quality of the information;

(c) that disclosure would cause a loss of confidence in the government;

(d) that disclosure might cause the applicant to misinterpret or misunderstand the information contained in the document because of an omission from the document or for any other reason.

Schedule 3 sets out considerations that are relevant in allowing or refusing a request. These are dissimilar to those that were contained in Schedule 1, in that the considerations are finance, time, and resource based.

Right to Information Applications

The application

Applications for information can be made to any public authority or Minister (s13). The specifics of the information requested need not be known – how could the information be known before it is disclosed? The Act only requires ‘reference to the information contained in a particular document or record without specifying the subject matter’.

The difficulty with all administrative decisions is that decision making can be very subjective, despite guidelines. A decision maker has discretion to decide whether disclosure of the document would, for example ‘promote or harm public health or safety’. If a person requested the Minister of Health to disclose information about an outbreak of salmonella, the Minister or their delegated officer may decide that it would harm public health and/or safety to disclose the information, where another person may argue that it would promote public health and/or safety to have more information available. This is why there is an appeal process.

Under the Regulations, an application must contain the following information (s4):

  • the name of the applicant;
  • the address of the applicant, for communication on matters relating to the application;
  • the daytime contact details of the applicant;
  • the general topic of the application;
  • details of the information sought by the applicant;
  • details of any efforts undertaken by the applicant, before the application was made, to obtain the information sought;
  • the date of the application;
  • the signature of the applicant;
  • if the application includes a request for personal information of the applicant, proof of identity of the applicant.

What information is required of the public authority for an application?

Public authorities must provide a minimum of information to an applicant about the assessment procedure (s5, Regulations). This information is:

  • an outline of the objects of the Act;
  • the address to which an application is to be made;
  • a statement to the effect that an application is to be made in writing;
  • the application fee payable under section 16 of the Act;
  • the time within which an application is to be decided;
  • a statement to the effect that an applicant may apply to the Ombudsman for a review, under section 45(1)(f) of the Act, of a decision, if the applicant has not received notice of the decision within the period specified in, or calculated under section 15.

Note, that under section 16 of the Act, all applications for assessed disclosure require an application fee of 25 fee units. A fee unit for the 2011-2012 year is $1.40. This changes yearly.

Time limits

Under section 15 an application for assessed disclosure must be answered within 20 working days of acceptance of the application. Negotiations over disclosure must occur within 10 working days of acceptance of the application. The time allowed for an answer can be extended by agreement with the applicant. If the request is both or either complex or voluminous in nature, the Ombudsman may extend the time allowed beyond 20 days(s15(4)).


The charges currently stand at 25 fee units per application. Fee units are altered each year in accordance with the consumer price index (CPI) for Hobart.

Right to Information Decisions

Deferral or Refusal of a request

The Tasmanian Act empowers decision makers to refuse a request if the request is for information that they have already made available (s12), the request unreasonably diverts resources of a public authority (s19), or the application is repeat request or vexatious (s20).

A deferral may also be an outcome of an application. This means that the public authority or Minister can defer providing the information if it is information prepared for presentation to Parliament that has not yet been presented, or where the information has already been marked for disclosure at a later date, not exceeding 12 months (s17).

Who makes the decision?

The person who makes the decision is either the responsible Minister, a principal officer, or a delegated officer. (s21). The Principal Officer of a public authority or a Minister has the power to delegate the decision making power (s24).

Reasons for the decision

A decision maker who decides that:

  • information is exempt information; or
  • defers provisions of information (s17); or
  • views the request as unreasonably diverting resources (s19); or
  • as a repeat or vexatious request (s20)

is required to give reasons for the decision, the name and designation of the person who made the decision, the right to apply for review, who to apply to for review, and the time within which to apply for a review (s22). There is a discretion as to whether to confirm the existence of the information requested where the information was classed as exempt information (s22(4)).


Nature of the information

Information not Available Under RtI

Information is available in other forms from the government. This includes information published by public authorities, such as annual reports. Section 9 of the Tasmanian Act states that requests cannot be made for information that are already accessible to the public, including records that are available for a reasonable cost.

Personal Information

Under section 36 of the Tasmanian Act, personal information of a person is exempt from disclosure to a third party if its disclosure would reasonably be of concern to the third party and it is contrary to the public interst to disclose the information. Bob can make an application for Sally’s personal information, but before it is released Sally will be consulted and an assessment of the public interest will occur. For instance, if Bob wants Sally’s address and Sally has a restraint order against Bob then Bob would not get the information.

In Tasmania, you can make a request for information concerning herself under the Personal Information Protection Act 2004 (Tas) (PIP Act). The PIP Act process should meet the same timleines as an RTI act request, but is not subject to the application fee or other restrictions. 

If a public authority refuses to deal with you under the PIP Act then your application becomes a formal application for assessed disclosure.

Review of Decisions

Internal review

There are two stages to the review process. The first is an internal review, and the second is an external review. Internal review can happen where a decision has been made by a delegated officer, not the principal officer – the Minister or the Principal Officer of the public authority (s43(1)). An application must be made within 20 working days after notice of the decision. This application will then be considered by the Minister or Principal Officer. A request for a review of a refusal for personal information must be made within 10 days of notice (s43(2)).The time limit for a response is 15 working days.

External review

A request for an external review goes to the Ombudsman, only after there has been an internal review (s44). An applicant can go straight to external review if the initial request was decided by the Minister or Principal Officer. The applicant has 20 days from being informed of the result of an internal review, or after 15 days has elapsed since the application for an internal review was lodged, to make an application for external review (s44(2)). Section 45 sets out other grounds for external review applications to the Ombudsman not covered by section 43.

The Ombudsman has extensive powers to settle reviews (s47), and the review published by the Ombudsman must provide written copies to all parties. If the Ombudsman intends to make a decision adverse to a public authority or Minister s/he must make a draft of the decision available to the affected party (s48(1)). In any other case, the draft must be made available to both parties involved (s48(2)). Final decisions can only be reviewed for accidental mistakes or omissions (s48(3)). As with the initial decision maker, the Ombudsman cannot include any exempt information in the decision, and can decide whether to confirm or deny the existence of the information requested.

Whistleblower Legislation

The Public Interest Disclosures Act 2002 (Tas)

The Public Interest Disclosures Act was instituted in order to ‘encourage and facilitate disclosures of improper conduct by public officers and public bodies, to protect persons making those disclosure and others from reprisals, to provide for the matters disclosed to properly investigated and dealt with.’ The Act empowers public officers who have reasonable grounds to believe that another public officer or body has engaged in improper conduct can disclose the improper conduct (s6). This also limits the scope of the Act in that it does not cover disclosures from all Tasmanians, only those who meet the definition of public officer.

Disclosures in any of the following circumstances are called ‘protected disclosures’ (s14), and there is no civil, administrative or criminal liability on a person who makes a protected disclosure (s16). Disclosures can be made to the public body involved, the Ombudsman, and depending on whether it falls within the interest of either party: the State Service Commissioner or the Commissioner of Police (s7(1)). If a disclosure is about the Commissioner of Police, then the disclosure is to be made to the Ombudsman (s7(3)). If a disclosure concerns a member of Parliament, the relevant party is the President of the Legislative Council, or the Speaker of the House of Assembly (s7(4)). Disclosure may be anonymous (s8).

Legal professional privilege is not affected by this Act (s11), and disclosure cannot be made about conduct that preceded the passage of the Act by more than 3 years (s10).

The Act protects individuals from reprisals for disclosing improper conduct (s19) and includes a provision for obtaining damages where reprisal does occur (s20). The Ombudsman has an active role under the Act to investigate disclosure (Part 6, Division 3).

The Public Interest Disclosures Act 2002 has been part of the legislative reform that saw the passage of the Right to Information Act 2009. Section 90 of the Public Interest Act exempts information from the Right to Information Act where the information is disclosed in relation to disclosures of improper conduct and detrimental action (Part 2 of the Act), where the information would likely lead to identification of a person who made such a disclosure, or where the information would identify a person against who a disclosure was made.

The consequences of a finding of improper conduct or detrimental action are generally contained within recommendation issued by the investigator – the Ombudsman (s57). A person about who a disclosure has been made has a right of defence under section 55  and the Ombudsman cannot make a report until that person has had an opportunity to be heard. The outcome of an investigation by the Police Commissioner (ss12 and 75), State Service Commissioner (s28) or the Integrity Commission (s29A) will be internal. If the matter is referred to the Ombudsman, who determines that it is a public interest issue, the Ombudsman will issue a report. This may be exempt from disclosure under the Right to Information Act, depending on whether the report falls into any of the exemption categories, the report is intended for Parliament but has not been presented yet (deferral of disclosure), or the report will be available within a year through other avenues (s17).


Commonwealth - Privacy


The Commonwealth Privacy Act 1988 lays down strict privacy safeguards which Commonwealth (federal) and Australian Capital Territory (ACT) government agencies must observe when collecting, storing, using and disclosing personal information. The Act also gives individuals access and correction rights in relation to their own personal information. The Act also creates the Office of the Australian Information Commissioner.

The Act only applies to the wider community, including the private sector and state and local governments, in relation to specific categories of information: tax file number information, and consumer credit information. Other Commonwealth laws contain privacy provisions relating to information about health insurance claims, data matching, information about old criminal convictions. and personal information disclosed by telecommunications companies.

Privacy issues arise in a wide range of areas and circumstances. Privacy legislation deals mainly with information privacy – the handling of personal information. Other privacy issues include video surveillance, telephone interception or ‘bugging’, and physical intrusion into private spaces which often fall under criminal procedure legislation. The Privacy Commissioner’s office can provide general advice.

The Privacy Act has a number of major concerns which include protecting the personal information collected by Commonwealth Government departments and agencies; ensuring that Tax File Numbers (TFNs) are collected and used only for tax-related purposes; ensuring that an individual’s personal credit information is correctly managed and that personal privacy is not infringed; and the Act also gives people rights in relation to how their personal information is handled by many private sector organisations.

The private sector provisions of the Privacy Act aim to give people greater control over the way information about them is handled in the private sector by requiring organisations to comply with ten National Privacy Principles (NPPs), which are listed in the Privacy Principles section.

In summary, organisations now must take reasonable steps to make individuals aware that it is collecting personal information about them, the purposes for which it is collecting the information, and who it might pass the information on to.  There are some restrictions on the uses an organisation can make of personal information and on when an organisation can disclose personal information or transfer it overseas.

The Privacy Commissioner/The Office of the Australian Information Commissioner

Recent changes have seen an overlap between the websites of the Privacy Commissioner and the Office of the Australian Information Commissioner (OAIC). The functions of the Privacy Commissioner have been integrated into the OAIC, incorporating both Freedom of Information and Privacy issues into one office. Their contact details are available online.

Privacy Principles

There are two sets of standards in privacy principles. They are binding on the organisations to which they apply, and individuals can make a complaint if they believe that the principles have been breached.

The first is the Information Privacy Principles, which set standards required of Australian and ACT government agencies in their data collection, management and disclosure practices. The second is the National Privacy Principles which apply to private sector organisations. Again, individuals can make complaints if they believe their rights have been breached under the Privacy Principles as applicable to the public or private sector.

Information Privacy Principles

The ‘Information Privacy Principles’ for Commonwealth and ACT government agencies are currently available online. There are 11 principles in total, covering:

  1. Manner and purpose of collection of personal information: collection of information for a record or generally available publication must be for a lawful purpose and directly related to that purpose;
  2. Solicitation of personal information from a specific individual: ensure that the person is aware of the purpose for which the information is being collected, that it is authorised under law, and to who the information may be disclosed by the collector;
  3. Solicitation of personal information generally: where personal information is solicited for inclusion in a generally available publication, the collector shall take steps to ensure the relevance of information collected, and that the information does not unreasonably intrude upon the personal affairs of the individual;
  4. Storage and security of personal information: a record-keeper must ensure there are reasonable safeguards to prevent loss, unauthorised access, use, modification or disclosure, or any other misuse of information, by non-involved parties or by parties who have a limited right of access;
  5. Information relating to records kept by record-keeper: records of information kept must be accessible, except where the record-keeper is required or authorised to refuse access. Records must contain information on the nature and purpose of the information, classes of individuals concerned, and the age of the records. Persons entitled to access the information should be helped to obtain access;
  6. Access to records containing personal information: an individual should have access to their personal information as according to law. There may be a lawful reason to refuse access;
  7. Alteration of records containing personal information: a record-keeper must take reasonable steps to ensure the accuracy or information in a record, or to append a record to the original record indicating updates or changes;
  8. Record-keeper to check accuracy, etc. of personal information before use: a record-keeper must take reasonable steps to ensure the accuracy, completeness and up-to-date nature of records;
  9. Personal information to be used only for relevant purposes: information shall not be used except for a purpose to which the information is relevant;
  10. Limits on use of personal information: information can only be used for the purpose for which it was obtained unless the individual concerned consents to another use, the record-keeper believes use of the information is necessary in a situation threatening life or health of the individual, the law permits another use, or it is reasonably necessary for the enforcement of the criminal law; and
  11. Limits on disclosure of personal information: disclosure is limited to the purpose for which the information was obtained, consent of the individual concerned, and for similar reasons to those contained in Principle 10.

National Privacy Principles

The National Privacy Principles, applicable to private sector organisations are accessible online.

  1. Collection: what an organisation can collect, how to collect from third parties and, generally, what they should tell individuals about the collection.
  2. Use and disclosure: if certain conditions are met, an organisation does not always need an individual's consent to use and disclose personal information.  There are rules about direct marketing.
  3. Information quality: an organisation must take steps to ensure the personal information it holds is accurate and up-to-date, and is kept secure from unauthorised use or access.
  4. Security: as above
  5. Openness: an organisation must have a policy on how it manages personal information, and make it available to anyone who asks for it.
  6. Access and correction: this gives individuals a general right of access to their personal information, and the right to have that information corrected if it is inaccurate, incomplete or out-of-date.
  7. Identifiers: generally prevents an organisation from adopting an Australian Government identifier for an individual (e.g. Medicare numbers) as its own.
  8. Anonymity: where possible, organisations must give individuals the opportunity to do business with them without the individual having to identify themselves.
  9. Trans-border data flows: outlines how organisations should protect personal information that they transfer outside Australia.
  10. Sensitive information: sensitive information includes information such as health, racial or ethnic background, or criminal record.  Higher standards apply to the handling of sensitive information.

Protecting Private Information

Investigating Complaints and Preventing Breaches

The Privacy Commissioner, under the OAIC investigates complaints against agencies or organisations where an individual alleges a breach of the Privacy Act. There is also a power to investigate without a complaint being lodged, where a breach of the Privacy Act is suspected, for example where the media has highlighted a problem. Prevention of breaches is carried out by conducting audits, and monitoring government data-matching, as well as by issuing guidance material, such as the Privacy Principles, to keep standards up to the Privacy Act requirements.

Tax File Numbers

Tax File Numbers (TFNs) are unique numbers issued by the Australian Taxation Office to identify individuals, companies and others who lodge income tax returns with the office. Individuals who do not quote their TFN to employers and financial institutions have tax deducted from their income or interest payments at the highest marginal rate. Quotation of TFNs is also a condition of receipt of most Commonwealth government assistance payments.

The Privacy Commissioner has issued TFN Guidelines under section 17 of the Privacy Act. The guidelines are legally binding and aim to restrict the use of TFN information. Unauthorised use or disclosure of TFNs is also an offence under the Taxation Administration Act 1953 (Cth). The TFN rules are also partly contained in the Income Tax Assessment Act 1936.

The Data-Matching Program (Assistance and Tax) Act 1990 provides for and regulates the matching of records between the Australian Taxation Office and the assistance agencies using the tax file number in part of the process.

Credit Reporting

The Privacy Act at Part IIIA provides safeguards for individuals in relation to consumer credit reporting. In particular, it governs the handling of credit reports and other credit worthiness information about individuals by credit reporting agencies and credit providers. The Act ensures that the use of this information is restricted to assessing applications for credit lodged with a credit provider and other legitimate activities involved with giving credit. The legislation does not directly affect commercial credit information.

The key requirements of the Act include:

  • strict limits on the type of information which can be held on a person’s credit information file by a credit reporting agency, and limits on how long the information can be held on file;
  • limits on who can obtain access to a credit file held by a credit reporting agency - generally only credit providers may obtain access and only for specified purposes, whilst real estate agents, debt collectors, employers, and general insurers are barred from obtaining access;
  • purposes for which a credit provider can use a credit report obtained from a credit reporting agency limited to, among others:
  • assessing an application for consumer credit or commercial credit (but the credit provider must seek consent if they are using a consumer credit report to assess an application for commercial credit, or using a commercial report to assess an application for consumer credit),
  • assessing whether to accept a person as guarantor for a loan applied for by someone else,
  • collecting overdue payments;
  • prohibition on disclosure by credit providers of credit worthiness information about an individual, including a credit report received from a credit reporting agency, except in specified circumstances, which include: where the disclosure is to another credit provider and the individual has given consent, to a mortgage insurer or to a debt collector (but credit providers can only give limited information contained in or derived from a credit report issued by a credit reporting agency);
  • rights of access and correction for individuals in relation to their own personal information contained in credit reports held by credit reporting agencies and credit providers.

What does the Privacy Act mean to consumers?

The Act means consumers now have the right to know:

  • why a private sector organisation is collecting their personal information;
  • what information it holds about them;
  • how it will use the information; and
  • who else will get the information.

Except for some special circumstances, individuals have a right to get access to personal information an organisation holds about them and to have the information corrected or annotated if the information is incorrect, out-of-date or incomplete. Consumers can also make a complaint if they think their information is not being handled properly. A consumer could also apply to the Federal Court or the Federal Circuit Court for an order to stop an organisation from engaging in conduct that breaches the National Privacy Principles (NPPs).

Who does the Act apply to?

The Act applies to organisations in the private sector. An organisation can be an individual, a body corporate, a partnership, an unincorporated association or a trust. It covers:

  • businesses, including not-for-profit organisations such as charitable organisations, sports clubs and unions, with a turnover of more than $3 million;
  • federal government contractors;
  • health service providers that hold health information (even if their turnover is less than $3 million);
  • organisations that carry on a business that collects or discloses personal information for a benefit, service or advantage (even if their turnover is less than $3 million);
  • small businesses with a turn-over of less than $3 million that choose to opt-in;
  • incorporated State Government business enterprises;
  • any organisation that regulations say are covered.

Who is not covered?

The provisions do not apply to:

  • state or territory authorities, e.g ministers, departments, courts and local government councils;
  • political parties and acts of political representatives in relation to electoral matters;
  • most small businesses with an annual turnover of less than $3 million;
  • acts or practices in relation to employee records of an individual if the act or practice directly relates to a current or former employment relationship between the employer and the individual;
  • act or practices of media organisations in the practice of journalism.

How does the Act work?

The NPPs set the base line standards for privacy protection. Organisations may have and enforce their own codes. These codes must be approved by the Privacy Commissioner as having obligations at least equivalent to the NPPs and meet other requirements. The code must have an independent code adjudicator to handle complaints. If the code does not provide for a complaints handling mechanism the Privacy Commissioner is the code adjudicator. Organisations that do not have their own code must comply with the NPPs set out in the Privacy Amendment Act. The Privacy Commissioner handles complaints in these circumstances.

Other Privacy Legislation

Wrongful, quashed and spent convictions

The Commonwealth Spent Convictions Scheme under Part VIIC of the Crimes Act 1914 allows a person to disregard some criminal convictions after ten years (or five years in the case of juvenile offenders) and provides protection against unauthorised use and disclosure of this information. It covers convictions for minor federal, state and foreign offences, with the protections available varying according to which type of offence (federal, state or foreign) gave rise to the conviction. The scheme also covers pardons and quashed convictions.

There are some exclusions from the scheme, but they are very limited. Complaints about a breach of the provisions may be investigated by the Privacy Commissioner. 

There is no spent conviction legislation in Tasmania, however under the Anti-Discrimination Act 1998 (Tas) a person must not discriminate against another person on the ground of an irrelevant criminal record (s16(q)).


The Telecommunications Act 1997 (Cth) contains a number of provisions dealing with the privacy of personal information held by carriers, carriage service providers and others.

Part 6 provides for the development of industry codes and standards in a range of consumer protection and privacy areas. The Privacy Commissioner must be consulted on any privacy codes. The codes are voluntary in the first instance, but breaches can be enforceable by the Australian Communications Authority.

Complaints - Privacy

Individuals may complain to the Federal Privacy Commissioner if they believe that their privacy has been infringed because of a breach of:

  • Information Privacy Principles (Cth government);
  • National Privacy Principles (private sector);
  • credit reporting provisions;
  • Tax File Number Guidelines;
  • Commonwealth Spent Convictions Scheme;
  • Pharmaceutical Benefits and Medicare Program Guidelines.

Contact information is available on the website of the Office of the Information Commissioner for privacy complaints. Phone enquiries can be made on 1300 363 992.

Metadata retention


The Telecommunications (Interception and Access) Amendment (Data Retention) Act 2015 (Cth) requires  telecommunications providers to retain, for two years, a defined set of metadata about the circumstances of the communications made through their services.  

Metadata consists of information about the circumstances of a communication; not the substance of the communication.  For a telephone call, for example, metadata will include the phone numbers used to begin a conversation, but not what was actually said in the conversation.  Similarly, for an e-mail correspondence, metadata will consist in the e-mail addresses used, but not what was written in the exchange.  Metadata does not consist of web-browsing history.

As such, the set of metadata now required to be retained is of six types: 

1.  The identity of the subscriber to a communications service; 
2.  The source of the communication; 
3.  The destination of the communication; 
4.  The date, time and duration of the communication; 
5.  The type of the communication; and 
6.  The location of the equipment used in the communication.

More information about these types of metadata, including examples of what they consist in, may be accessed here.

Data that is retained by telecommunications providers is protected as "personal information" by the Privacy Act 1988 (Cth), and by the Australian Privacy Principles.  Personal information includes information about an identified individual, or an individual who is reasonably identifiable, no matter the form in which the information is kept.

The Commonwealth Attorney-General's website contains additional information on metadata retention, and its implementing legislation.




Tasmania - Privacy


In Tasmania, privacy is regulated by the Right to Information Act 2009 which is covered in the ‘Right to Information’ section, and the Personal Information Protection Act 2004. Other legislation that impacts on privacy includes the Telecommunications (Interception) Tasmania Act 1999, the Police Powers (Controlled Operations) Act 2006, and the Police Powers (Surveillance Devices) Act 2008.

The Tasmanian Ombudsman investigates complaints concerning all of these acts, and also reviews decisions issued under the Right to Information Act.

Privacy is important in all areas of the law, including the criminal law. It is a balance between the interests of the state in preventing and punishing crime, and the rights of citizens, no matter whether they are under investigation for possible criminal offences. Just as personal information held by government bodies is protected from general and unregulated dissemination, so is information held by the police where that information has been obtained by an invasion of privacy, such as by use of a surveillance device. Rights of access to such information are diminished because of the necessity of the administration of justice, in contrast to the access permitted to private citizens seeking disclosure from government authorities concerning their personal information.

Personal Information Protection Act 2004 (Tas)

The Personal Information Protection Act (the PIP Act) is subordinate to other legislation where its provisions are inconsistent with other legislation. This means that the Right to Information Act will take precedence over the PIP Act if there is an inconsistency in the provisions.

The PIP Act allows a person to apply for and have access to personal information held by a personal information custodian (Schedule 1 – Clause 6). There are three points to address in terms of this right to apply for access. Firstly, an application isn't guaranteed to result in access. Access MAY be granted, but it is not a MUST. Secondly, access to personal information is not access to the document that contains the personal information. Personal information, when provided under a request through the PIP Act, will usually be provided in the form of an extract of the document containing the information. This personal information can be both or either information or an opinion about a person. Furthermore, the person's identity must be apparent or reasonably ascertainable (Guideline 1/2013). Thirdly, ‘personal information custodian’ (PIC) is a very broad term, and can refer to:

  • A public authority
  • Any body, organisation or person who has entered into a personal information contract relating to personal information
  • A prescribed body

In relation to the second dot point, a personal information contract can be between a government body/public authority, such as the Hobart City Council or DPIPWE, and a private company. For example, the HCC might enter into a contract with a private company to collect and store information on dog owners. This would mean that the private company would be a personal information custodian for the purposes of a person who wants to access information stored about them and their ownership of dogs.

A request to a PIC to access personal information must be in writing. You may also request that information held is amended if you find it is incorrect (s17A). If a personal information custodian refuses your request to see your personal information or does not respond within 20 working days then on receipt of a second written request they must treat your request as an application for assessed disclosure under the Right to Information Act 2009 and the timelines and review rights under that Act apply. At the end of the process, if there has been no grant of access, an applicant can make a complaint to the Ombudsman, be it either under section 44 of the Right to Information Act 2009 or the PIP Act section 18.

The PIP Act has two sets of personal information: personal information collected before the commencement of the Act, and personal information collected after. Personal information collected after the commencement of the Act is to be treated in accordance with all the principles set out in Schedule 1 of the Act (s6). The principles exclusive to information collected after commencement are:

  • A personal information custodian must not collect personal information unless the information is necessary for one or more of its functions or activities
  • A personal information custodian must not assign a unique identifier to an individual unless it is necessary for it to carry out any of its functions efficiently.
  • Anonymity: Wherever it is lawful and practicable, individuals must have the option of not identifying themselves when entering transactions with a personal information custodian.
  • A personal information custodian must not collect sensitive information about an individual unless the individual has consented, or the collection is required or permitted by law; or the collection is necessary to prevent or lessen a serious and imminent threat to the life or health of any individual.

Information collected before the commencement of the Act is to be governed in accordance with principles 2, 3, 4, 5, 6 and 9 only.

There is a requirement in the Act that all personal information custodians comply with these Personal information protection principles (ss16 and 17). Complaints are managed by the Ombudsman.

There are exemptions to the provisions of the Act. These are:

  • Courts and tribunals;
  • Public information;
  • Law enforcement information where non-compliance is reasonably necessary for law enforcement functions and activities;
  • Employee information;
  • Unsolicited information – information given without being sought to a public information custodian; and
  • The use of information for basic purposes, such as storage, communication with a public sector body, and the information is basic personal information (such as name and age).

Criminal Procedure Legislation

The Telecommunications (Interception) Tasmania Act 1999, the Police Powers (Controlled Operations) Act 2006, and the Police Powers (Surveillance Devices) Act 2006 are statutes that concern criminal procedure: the activities of police in investigating criminal matters.

Police powers under these Acts tend to be concerned with listening to, observing, or recording the interactions of people, some of who will be under a criminal investigation, and others who are incidental to that criminal investigation by association. The Telecommunications (Interception) Tasmania Act 1999 enables the Tasmania Police Service to be classified as an agency for the purposes of the Commonwealth Act of the same name. The Commonwealth Act creates powers to intercept telecommunications, i.e. listen to conversations. The Tasmanian Act creates obligations to do with storage of records, inspection of records, and the keeping and destruction of restricted records. A restricted record is a record in the possession of the Tasmania Police, created pursuant to the Act.

Section 8 of the Telecommunications Act stipulates that restricted records are required to be kept in secure place to prevent access by people not entitled to deal with it, and these records must be destroyed once the Commissioner of Police is satisfied that there is no likely permitted use for the records.

The Police Powers (Controlled Operations) Act 2006 concerns operations conducted or intended to be conducted for the purpose of obtaining evidence that may lead to a prosecution of a person for a relevant offence, that also involves or may involve controlled conduct. Controlled conduct is conduct that would otherwise constitute a criminal offence. This Act involves authorisation of, for example, undercover officers to engage in criminal conduct in an investigation, or even something as simple as trespass. Obviously, this can impinge on the privacy of people investigated.

There are strict requirements for authorisation of controlled operations (s9). Enough information must be provided to allow the decision maker to decide whether or not to grant the application. This would be information that illustrated the likelihood of obtaining evidence, the type of offences suspected, and the public interest in preventing the continuation of the offences.

Importantly, the Act contains provisions to do with record keeping (Part 4, Division 2), and unauthorised disclosure of information (s26). A person investigated and a person investigating have protection in that a person who discloses any information to do with a controlled operation is guilty of an offence punishable by up to 2 years imprisonment. Document keeping requires record keepers to maintain all the documentation relating to authorisation of controlled operations under the Act. However, there are no requirements for destruction of documents.

The Police Powers (Surveillance Devices) Act 2006 contains controls on the use, communication and publication of information obtained through use of a surveillance device warrant issued under the Act. Section 33(1) is directed toward where information, whether protected or not, is published, whether or not it jeopardises an investigation. The penalty is up to 2 years imprisonment. Section 33(2) where publication of information prejudices or will prejudice the effective conduct an investigation or the health and safety of any person attracts a maximum penalty of 10 years imprisonment. Both provisions require intentionality of the act or recklessness. These provisions do not apply to information that has been disclosed in court or have entered the public domain (s33(3)). Section 34(1)(b) provides for the destruction of records or reports obtained by use of a surveillance device if it is not likely to be used for an investigation, making a decision to prosecute or other deliberations, investigation of a complaint, or any criminal proceeding (see: s33(4)).

Complaints - Privacy

Complaints about privacy involving state organisations can be made to the State Ombudsman.

Administrative Law - Challenging Government Decisions

Administrative Law and Review

What is Administrative Law?

Administrative law is the law that governs the actions and decisions of government decision makers. Administrative law, administrative decisions, and administrative action are all terms that can be used interchangeably. Administrative law is also concerned with the right to appeal administrative decisions, which gives rise to administrative review.

Administrative law is everywhere. It affects car licensing, dog registration, building permits, sewerage, water, roads – nearly everything you can think of can be affected by administrative law.

An administrative decision can be the decision of a local Council to levy a charge for road or sewerage works, the decision of a government board to accept or reject an application from a graduate to be registered as a teacher, the decision to grant or revoke or refuse a car license. Other examples include:

  • A gun or driving license grant or denial, or conditions attached to a license;
  • Centrelink benefit grants, denials or variations;
  • A decision by a Minister not to grant an immigration visa;
  • Decisions by a Council, such as to compulsorily acquire land or to euthanise an  animal.

The people who make these decisions are varied. Sometimes a person directly vested with an administrative power, but other times a delegate – meaning, someone who exercises the power of another person, might exercise that power on behalf of a person higher up. For example, a delegate may exercise the power of the Commissioner of Police. They might refuse a gun license, and so the delegate of the Commissioner of Police is a government decision maker.

Other decisions makers include: a Centrelink staff member who makes a decision about welfare payments is a government decision maker; an Australian Tax Office (ATO) employee who assesses your tax return is a government decision maker. Anyone who makes an administrative decision is a government decision maker.

The people who administrative law are working in positions from your local council to government departments. They may be state or federally based. Most of the decisions of government can be the subject of administrative review. However, there are some things that just aren’t part of administrative law. Administrative actions or decisions is a broad term, perhaps best explained by stating what is not administrative law.

Administrative law is not about challenges to decisions made by a judge in the Magistrates Court or Supreme Court in a criminal or a civil case. These are subject to their own rules of appeal and challenge. Administrative law does concern decisions made in the administrative appeals courts. Nor are the decisions of the Parliament to reduce funding to a project, or decide policy, the subject of administrative law. Although the decisions of Parliament are decisions made by government, they are not ‘administrative decisions’ for the purpose of administrative law.

Administrative law also sets the rules for appealing against administrative decisions. Think of administrative law in terms of a book of social etiquette in a strict hierarchy, such as a monarchy. Administrative law is set down in legislation, regulations and policy & procedure manuals and like social etiquette, the people who must administer the law and accept appeals against it, know the etiquette – they know how to behave. Administrative law is simply the rules of conduct for decision makers, so that powers are exercised fairly, without discrimination, and according to principles of fairness and natural justice. Administrative law is also the right to appeal decisions where a person who that decision concerns thinks that the etiquette hasn’t been followed. Someone hasn’t made a decision according to the rule book. Administrative law is a bastion against corruption, because it ensures that government decision makers are accountable for their decisions. Administrative law means that decision makers make administrative decisions according to law, not personal preference, and that corruption – such as paying someone at Service Tasmania to give you a driver’s license when you can’t drive, is confined.

So, decision makers follow this ‘etiquette’ about how to make a decision. What facts have to be considered, what forms and procedures must be filled and followed. But, if a decision is made and the person who the decision is about or who is directly affected by the decision is not satisfied with the result, and believe that the decision has been incorrectly made, they can seek administrative review.The first step is reconsideration; from there it is a matter of preference and resources as to whether the person seeks help from the Ombudsman, an alternative to court at no cost to the applicant, or turns to the Administrative Appeals Division of the Magistrates Court for a merits review.

What sort of cases come before courts?

The answer to that question is: lots of sorts of cases. There have been cases about cheesemakers’ signs, teaching registration, poppy growing, involuntary detention in a psychiatric hospital facility, building surveyor credentials, and decisions by the Anti-Discrimination Commission to not carry out an investigation.

A Summary of the Means of Review

The first port of call is always the decision maker if you want to know why a decision was made. There are several ways in which you can frame the question to yourself:

  • Did the decision maker have all the facts before them?
  • Did the decision maker give me reasons for their decision?
  • Did the decision maker have an interest in the decision? Was there a conflict of interest?
  • Did I get a fair hearing of my concerns before the decision was made?

Once the original decision maker has been approached, asked for a review or a reason for decision, Commonwealth government administrative action or decisions may be tackled in one of the following ways:

  • complaint to the Commonwealth Ombudsman
  • appeal to the Commonwealth Administrative Appeals Tribunal
  • judicial review by the Federal Court of Australia;
  • judicial review by the High Court.

There aer many other review bodies at the Commonwealth level. Means of review via appeals bodiesare often given by the Act under which the body operates such as the Social Security Appeals Tribunal under the Social Security Act 1991 or Migration Review Tribunal under the Migration Act 1955 and Migration Regulations 1994.

Once the original decision maker has been approached, asked for a review or a reason for decision, a dispute with a Tasmanian government body may, apart from any rights given by the particular Act, be dealt with by:

  • complaint to the Tasmanian Ombudsman;
  • administrative review by a tribunal or body;
  • administrative review in the Magistrates’ Court;
  • judicial review in the Supreme Court.

Other review bodies in Tasmania are the:

  • Resource Management Planning and Appeals Tribunal (RMPAT); and
  • Tasmanian Public Housing Review Committee

It must be noted, however, that appeals to the Tasmanian Public Housing Review Committee can not be appealed on to the Supreme Court. Decisions of the Drector of Housing or his delegates do not qualify as ‘administrative decisions’ that fall under the Judicial Review Act 2000 (Tas). The Tasmanian Public Housing Review Committee is discussed under Public Housing.

Who Has Standing to Appeal a Reviewable Decision?

‘A person directly affected by a decision’ will usually be the person the decision is about, but they may be a partner or ex-partner whose rights are substantially affected by an administrative decision. For example, someone who is directly affected by a situation may be a party whose Centrelink benefits are affected by a child custody decision, or a decision in Veteran’s Affairs to do with the pension of a deceased war veteran. Similarly, a person may object to an administrative decision that affects or is affected by recognition of a relationship. This is often to do with Centrelink benefits. A person directly affected who is not the primary party could also be a person involved in a guardianship order.

Some legislation provides for ‘interested parties’ to have standing to do with administrative matters. For example, under the Ombudsman Act 1978, if there is a question as to the Ombudsman’s jurisdiction to conduct an investigation into a complaint, an interested party may apply to the Supreme Court for a determination of the question of jurisdiction. Interested parties include the public authority by the action the subject of the investigation is alleged to have been taken; the principal officer of that authority, the responsible Minister in relation to that authority, the person who is alleged to have made the decision and the complainant (Ombudsman Act, s 32).

What Administrative Decisions Can I Review?

To seek a review of an administration decision, you must have grounds for a review. Obviously, another requirement is that you are dissatisfied with the decision. You may feel that the decision maker did not take the correct information into account, or acted with bias, or that the decision was unfair. A review can be a simple request for reasons, or reconsideration by the decision making body, a merits or judicial review before a court, or an investigation by the Ombudsman.

You can’t seek a review simply because you don’t like a decision. There has to be either a merits or a judicial basis for review – was the incorrect information taken into account? Were you denied natural justice? If you are refused a gun license, and you have several prior convictions for criminal offences involving guns, you don’t have much ground on the merits front, and so it would be unlikely that you would have a ground for review of the decision.

Decisions under certain Acts and Regulations can be reviewed.

Decisions under Tasmanian Acts that can be reviewed

Decisions under the following Tasmanian Acts can be reviewed by a Magistrate in the Administrative Appeals Division of the Magistrates Court (AAD), and later if there are grounds for judicial review, by a justice of the Tasmanian Supreme Court. This is not an exhaustive list. If a decision has been made under an Act not listed here, which you would like to have reviewed, seek legal advice from your local community legal centre as to whether the decision can be the subject of administrative review.

  • Abandoned Lands Act 1973
  • Agricultural and Veterinary Chemicals (Control of Use) Act 1995
  • Animal Farming (Registration) Act 1994
  • Animal Health Act 1995
  • Archives Act 1983
  • Associations Incorporation Act 1964
  • Auctioneers and Real Estate Agents Act 1991
  • Births, Deaths and Marriages Registration Act 1999
  • Business Names Act 1962
  • Cat Mangement Act 2009
  • Child Care Act 2001
  • Crown Lands Act 1976
  • Crown Lands (Shack Sites) Act 1997
  • Dairy Industry Act 1994
  • Dog Control Act 2000
  • Education Act 1994
  • Education Providers Registration (Overseas Students) Act 1991
  • Egg Industry Act 1988
  • Electoral Act 1985
  • Electricity Industry Safety and Administration Act 1997
  • Fertilizers Act 1993
  • Fire Service Act 1979
  • Firearms Act 1996
  • First Home Owner Grant Act 2000
  • Food Act 2003
  • Hairdressers' Registration Act 1975
  • Local Government Act 1993
  • Local Government (Building and Miscellaneous Provisions) Act 1993
  • Local Government (Highways) Act 1982
  • Long Service Leave (Casual Wharf Employees) Act 1982
  • Meat Hygiene Act 1985
  • National Parks and Reserves Management Act 2002
  • National Parks and Wildlife Act 1970
  • Passenger Transport Act 1997
  • Petroleum Products Emergency Act 1994
  • Plumbers and Gas-fitters Registration Act 1951
  • Poisons Act 1971
  • Public Health Act 1997
  • Radiation Control Act 1977
  • Rail Safety Act 1997
  • Relationships Act 2003
  • Roads and Jetties Act 1935
  • Sale of Hazardous Goods Act 1977
  • Sewers and Drains Act 1954
  • Substandard Housing Control Act 1973
  • Surveyors Act 2002
  • Tasmanian Qualifications Authority Act 2003
  • Taxation Administration Act 1997
  • Travel Agents Act 1987
  • Universities Registration Act 1995
  • Valuers Registration Act 1974
  • Vehicle and Traffic (Review of Decisions) Regulations 2010 Part 3
  • Veterinary Surgeons Act 1987
  • Workplace Health and Safety Act 1995

Decisions under Commonwealth Acts that can be reviewed

Jurisdiction to review for the Administrative Appeals Tribunal is extensive and the lists of Acts udner which the AAT has jurisdiction to review are updated annually. A link is provided here for access to those lists. General topics for review include:

  • Centrelink (social security, pensions, etc)
  • Australian Tax Office
  • Migration
  • Environment and natural resources
  • Marine environment
  • Health care provider registration and insurance
  • Native Title
  • Patents
  • Workplace compensation
  • Radio and telecommunications

There are many areas in which the AAT will have jurisdiction. The AAT has no jurisdiction over state government decisions, or the decisions of local councils.

Some things to consider

You need to ask yourself several questions before initiating a review/reconsideration, or the next step along in the appeals process. Ask yourself:

  • Have you sough an internal review/reconsideration?
  • Have you sought legal advice?
  • What advice have you been given?
  • What is your complaint?
  • Who made the decision?
  • Which government department or other body did they belong to?
  • Is it Commonwealth or Tasmanian?
  • Have you spoken to the Ombudsman’s Office? (see Ombudsman section)
  • Are you seeking a merits review? Is it a Commonwealth or Tasmanian matter? See: Cth and Tas sections
  • Are you seeking a judicial review? Is it a Commonwealth or Tasmanian matter? See: Cth and Tas sections

To initiate a review, you should consult legal advice – seek the help of your local legal service. Your avenues of appeal include, and should begin with internal review through the decision making body. Make inquiries with that body about a reconsideration of the original decision. If it is a Tasmanian state decision, you could also speak to the Tasmanian Ombudsman’s Office, or make enquiries at the Magistrates Court about their Administrative Appeals Division (hereinafter ‘the AAD’). For Commonwealth reviews, seek advice from the decision making body, contact the Commonwealth Ombudsman, or check the Administrative Appeals Tribunal (AAT) website.

Who Makes What Decision?

Structure of Government

There are two fundamental levels of government: state and federal. State government is largely separate from federal government. For example, gun licensing laws are state, and so the administration of those laws are a state government administrative issue. Centrelink is a federal government department, and so administratives issues with Centrelink are a federal issue. It is usually easy to tell which departments are which level of government. The ATO and Centrelink are two that come first to mind as federal government decision making bodies.

The bulk of government administration is carried out by government departments. Each department is responsible to a Minister. Departments are not, however, the only organs for administration of government policy. Increasingly, responsibilities in special areas are being given to Commissions or Boards created by special legislation. Examples are federal bodies such as the Australian Human Rights Commission, the Health Insurance Commission (Medicare), and state bodies such as Metro Tasmania and the Hydro Electric Corporation. These bodies are set up by special Acts which set out their functions, powers, and operating procedures. The decisions of local councils are also subject to administrative law, as local councils often operate under delegated powers from the state government.

Delegation of Authority

Acts usually list various discretions or functions which may be exercised by the Minister or Principal Officer of a government department. Obviously, as a practical matter, the individuals named in legislation cannot deal personally with the large number of matters over which they have authority. It is normal to delegate functions. Officers, often at minor levels within a department, commission or board commonly decide particular cases involving consumers or clients. General instructions and guidelines for use by officers are usually set out in manuals, which contain detailed rules interpreting the terms of the statute under which the department operates. A person having a dispute with a government body should try to find out whether a manual or other policy instruction document was used. For instance, Centrelink officers make all their decisions through reference to a manual. Such a manual should be accessible under Freedom of Information or Right to Information legislation.

What is Which Review?

Administrative review

Administrative review is a challenge to a government decision, it can even be a simple request for the reasons for a decision. It is a means of ensuring that government is accountable to citizens for administrative decisions, and helps to improve the quality, efficiency and effectiveness of government decision-making.

Administrative review is also means of testing the legality and merits of administrative decisions that affect citizens. Administrative review ensures that people are able to ask ‘why?’ when a decision is made that affects them. Administrative review attempts to ensure that government processes are fair, open, just and lawful – it is an important part of a democratic government.

Complaints on government decisions may be of two types. Firstly, that the decision maker made the wrong decision according to the merits of the case (a review of this type of complaint is called a review on the merits). Secondly, that there was a fault within the decision-making process because the decision maker didn’t give the person affected an opportunity to put their case, or acted for an improper purpose, or otherwise failed to make the decision according to proper lawful procedure (a review of this type of complaint is called judicial review).

Merits review

Merits review is a process where the facts, law and policy aspects of the original decision are all reconsidered along with any new evidence. The reviewer looks anew at the merits of the case and decides whether the decision was the correct or preferable one, given all the circumstances surrounding the case. The outcome of a merits review is either a variation or a confirmation of the original decision, which substitutes the original decision.

Judicial review

A judicial review is concerned with whether a decision has been lawfully made. Judicial review is unlike a merits review, as judicial review cannot reconsider the facts or merits of the case, and cannot make a decision that exercises the power of the original decision maker afresh. A judicial review that concludes that a decision was not lawfully made can only send the decision back to the original decision maker for reconsideration. There are a number of grounds for judicial review. All of these are discussed at ‘Judicial Review’ below.

The Importance of Time Limitations

All areas of administrative law have very strict time limitations. The original decision maker will often have a time limitation period within which you can apply for reconsideration. With review in the Magistrates Court the application for review must be made within 28 days of the applicant being notified of the making of the reviewable decision. If the applicant has applied for a statement of reasons, the period is 28 days after the statement of reasons was provided or notification of refusal to provide reasons was given (s 17(2), Magistrates Court (Administrative Appeals Division) Act 2001). The Magistrates AAD has a discretion to extend that time period (s 20) The Supreme Court also has a 28 day period within which an application must be made, but a discretion to extend that time (s 23(1), Judicial Review Act 2000). The Ombudsman will only consider a complaint if the complaint is made within two years of the date of the decision (s 19(1), Ombudsman Act 1975 (Tas)). The time limitation with the Ombudsman is far less restrictive. 

Keeping It Out of Court

First resort: reconsideration

Reconsideration is where a different decision-maker within the original decision-making body considers your application afresh. Reconsideration is an internal process and does not require appeal to outside body, but only to the original decision-making body.

Internal review, or reconsideration, is simply a second exercise of the decision making power of a person within the organisation that was responsible for the original decision. An example of this would be a university student applying for a reconsideration of the marks they received on an exam or essay. This sort of internal review should be sought by asking for information from the contact point of that organisation. If you are denied a right to a reconsideration, contact the Ombudsman. You must seek reconsideration before contacting the Ombudsman or attempting to initiate judical or merits review.


Taking a complaint to the Ombudsman is the quickst and cheapest way to seek resolution to your situation. The Ombudsman is an impartial arm of government intended to ensure that administrative powers are carried out fairly, justly and according to law. Unlike other means of appeal, such as to a review tribunal, the Magistrates Court or even the Supreme Court, the Ombudsman does not cost the complainant any money. All other avenues of appeal are expensive and time consuming. Before making a decision to appeal to a court or tribunal, consider contacting the Office of the Ombudsman, either at state or federal level, depending on the body which made the decision you are appealing, to gain an understanding of whether you have any likelihood of success at a higher level.

An ombudsman review is concerned with the fairness and reasonableness of the decision. While an Ombudsman has wide investigative powers, the possible outcomes are limited as the Ombudsman can only make recommendations to correct the government practices that may have contributed to an incorrectly made decision, or to the treatment of an individual in the decision-making process. A decision maker or decision making body does not have to follow those recommendations for improvement, although these recommendations often are followed. The only avenue of appeal from an Ombudsman’s decision is to the Supreme Court, and that is only with the consent of the Supreme Court. This is a procedural limitation. An Ombudsman investigation can take longer than the 28 day window of time in which an appeal can come before the Magistrates Court Appeal Division. This Court has no discretion to extend that time. It is a strict time period.

The Supreme Court has a discretion to allow an appeal and to extend the time period in which a complaint may be brought. However, an appeal from the Ombudsman to the Supreme Court is unlikely to succeed, unless the Office of the Ombudsman has no jurisdiction to investigate the complaint. In all other situations the Ombudsman will only refuse to investigate complaints over which it has jurisdiction if:

  1. that the matter raised in the complaint is trivial;
  2. that the complaint is frivolous or vexatious or is not made in good faith;
  3. that the aggrieved person does not have a sufficient interest in the matter raised in the com plaint; or
  4. that, having regard to all the circumstances of the case, the investigation, or the continuance of the investigation, of the matter raised in the complaint is unnecessary or unjustifiable. (s21, Ombudsman Act 1978)

If the Ombudsman has made this decision, it is unlikely that an appeal to the Supreme Court would extend the 28 day limitation period, or if an appeal is allowed that it will incur much beyond expense for the complainant, if th Ombudsman has determined the matter to be trivial, frivolous or vexatious.

Outcomes of a review or reconsideration

Successful review or reconsideration

The outcome of a successful reconsideration or merits review is the reversal or amendment of the original decision to the satisfaction of the applicant. But the outcomes could be even wider reaching – a decision making process might be amended to make the process more certain for future users. Even if a review is successful, in that the decision is sent back for reconsideration, the decision maker might simply make the decision again with different reasons, such as with the Karen Green case, which is discussed below.

Sometimes a “successful” review will have the same outcome as the initial decision because the review process cannot put in place a new decision, the review may merely send the case back for a decision at a lower level and that decision might be exactly the same as the decision that resulted in the appeal for review.

Appealing an unsuccessful review or reconsideration

There are several options after an unsuccessful review or reconsideration. An obvious one is to give up. However, if you’re the doughty fighting type, and your internal review has been sought, and the review was unsuccessful, the options include:

  • seeking a review by an Ombudsman (although a finding of an Ombudsman is not binding). A second review can be sought of an initial Ombudsman’s decision.
  • If this is unsatisfactory, a person can then seek a merits review or a judicial review of their case, depending on the reason for their appeal – were the merits not given their full weight, or was the decision unlawful?

The Ombudsman is also the cheapest means of seeking a review of the decision. If you have appealed to the Magistrates’ Court and the outcome was not to your satisfaction, the Ombudsman is the next port of call. It is always best to seek legal advice! You yourself might not know what grounds of appeal you have against a decision.

Judicial Review

The grounds on which courts will force government administration to stop a process, or reverse a decision and look again at a matter, have developed over several hundred years. The orders a court will make have ancient names. Basically, this area of the law is contained in a large number of old English court cases which have been supplemented by Australian cases over the last hundred years. All that can be achieved in the short space of this volume is to give an outline of the law in this area.

The law has been simplified and modernised at the Commonwealth level under the Administrative Decisions (Judicial Review) Act 1977. At a state level, the Judicial Review Act 2000 (Tas) came into effect on 1st December 2001.

Judicial review is different from an administrative appeal or complaint to the Ombudsman. Judicial review is carried out in the courts because courts have the power to make decisions based on the law, and judicial review is about challenging the lawfulness of an administrative decision. 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 brought to a halt, or that certain action be taken by the administrative official who made the decision being appealed.

In deciding whether to grant judicial review, the court looks at the methods adopted by a government decision-maker in coming to a decision, and determines whether:

  • those methods were consistent with natural justice or administrative fairness;
  • the factors taken into account by the decision-maker were the correct ones under the legislation; or
  • the decision-maker acted within the powers given in the legislation in making the decision.

The courts do not review the actual decision on its merits. All they do under judicial review is to decide whether or not it was properly made – that it was a lawful decision. This does not necessarily mean that if a matter is referred back to the decision maker that the decision will reflect the judicial review decision of the decision being improperly made. Discretion in assessing the relevant factors is a key component of a decision maker’s process, this includes an inherent subjectivity.

If a government decision-maker decides to deny a benefit, a licence etc, it may be possible to have the court set the decision aside, but the original decision-maker will have to make a new decision which may still be negative. If the legislation under which the original decision was made provides for an appeal on the merits this may be the preferable option as the body appealed to will usually have the power to replace the original decision with its own.

Judicial review is expensive – court application fees, and lawyers’ fees are costly. If you decide to proceed to a judicial review, and you have standing to sue, you will need a legal advice and a lawyer.

Applications are heard by the Supreme Courts of the various States and Territories, the Federal Court of Australia or, more rarely, by the High Court of Australia. Administrative appeals on the other hand are usually much cheaper and more quickly heard.

A quick and inexpensive approach available to people who have decisions made against them, or are concerned about the conduct of a public servant, is to complain to the Ombudsman. Whilst this is the least expensive and troublesome way to deal with decisions made by government decision-makers, it may not lead to the decision complained of being changed because the Ombudsman can only make a recommendation.

Example: The Karen Green Case

A striking example of this point is the Karen Green case (Green v Daniels (1977) 13 ALR 1). In this case a 16 year-old Hobart girl who had left school at the end of the school year and who had been unable to obtain employment applied for unemployment benefits from the (then) Department of Social Security. The Department refused to allow her the benefit as there was a government policy that no school leavers were to be paid benefits during the summer vacation. Benefits for school leavers, the government decided, were only to be paid after February of the next year. Karen Green claimed that the Department was not entitled to take this matter into account because it was not a criterion found in the Act which laid down the grounds for granting (or refusing) unemployment benefit. Her point simply was that she could not be refused the benefit on a ground which Parliament had not included in the Act governing the Department’s actions in this matter.

The High Court decided Ms Green’s point was correct and declared that the Department of Social Security was wrong in refusing her benefit on the policy ground and sent the matter back to the Department to be re-decided. But the point of this example is that Ms Green did not receive the benefit because the Department did look at the matter again and decided on the basis of one of the other factors which it was entitled to consider under the Act (whether or not the applicant was willing to undertake work) that Ms Green was still not entitled to the benefit. (Despite Ms Green producing in the High Court a signed and dated list of more than 40 employers to whom she had unsuccessfully applied for employment, the Department ruled that this did not satisfy it that she was necessarily demonstrating sufficient effort to secure employment.)

Merits Review

What is a merits review?

A merits review looks at the decision of the original decision maker, and considers the decision anew, as though the decision had never been made. This means that the review considers all the same material that the original decision maker considered. For example, if the decision is about a Centrelink payment, the financial and domestic circumstances of the applicant will be considered by the reviewer, just as they were considered by the Centrelink officer.

Who hears a merits review?

This type of complaint will usually be heard by a tribunal, such as the Commonwealth Administrative Appeals Tribunal (AAT) which reviews the decisions of public officials made under federal legislation, such as a decision under the Australian Sports Drug Agency Act 1990 about a competitor’s test result, or a decision that a person is not eligible for workers compensation under the Safety Rehabilitation and Compensation Act 1988. A person has a right to bring a complaint to the AAT only if an act or regulation gives them the right; there is otherwise no general right at law to make a complaint to a tribunal.

Many Tasmanian Acts provide for merit reviews of administrative decisions to various bodies, such as to the Magistrates Court (Administrative Appeals Division) or the Resource Management and Planning Appeals Tribunal. Tasmania has no specific AAT.

Where there is a specific statutory right of appeal to a tribunal or body other than a court, the appeal body will generally be entitled to consider the whole subject matter of the administrative decision afresh. It will be able to re-examine the relevant facts and the relevant law and re-exercise any available discretion. Appellants will be able to present their case all over again with fresh evidence or different arguments if they so choose. The appeal body will have the right to substitute its own opinion and decision for that of the authority appealed against.

Merit Reviews in Tasmania

There are a number of Tribunals and bodies which have the power to carry out merit reviews of administrative decisions made by State government agencies and authorities. Some are specialist bodies, such as the Forest Practices Tribunal which hears appeals under the Forest Practices Act 1985. The Magistrates Court (Administrative Appeals Division) is established by the Magistrates Court (Administrative Appeals Division) Act 2001 and may determine a wide range of reviews. Although a court, it is not dissimilar to Administrative Appeals Tribunals in other jurisdictions in its jurisdiction, powers and manner of operation.

Commonwealth Merits Review

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 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.

It was against this background that the Commonwealth decided to establish an Administrative Appeals Tribunal (AAT). The AAT was established under the Administrative Appeals Tribunal Act 1975 and is empowered to review on their merits a wide range of Commonwealth government decisions. However, there are limits and the list continually changes. All references are to the Administrative Appeals Tribunal Act unless otherwise stated.

How do I start a merits review?

You can apply for a merits review yourself, or with the help of legal advice. It is best to proceed with legal advice. Your local community legal service can help. You should make sure that you have all of the documentation and information with you that was relevant to the original decision.

Ombudsmen - Tasmania and Commonwealth

Tasmanian Ombudsman

Thanks to Greg Vines for the following summary of an Ombudsman Review.

“The Ombudsman is an office of last resort and the Ombudsman requires that before a complainant contacts the Ombudsman they first make every effort to attempt to resolve their complaint with the department or authority concerned. The Ombudsman investigates complaints in private and with as little formality as possible. In the resolution of a complaint, the Ombudsman’s goal is to ensure that action taken by an authority is fair and reasonable and that the principles of natural justice are upheld.”

To make a complaint the Office of the Tasmanian Ombudsman, a person can write, call, submit a complaint online, or email. See the Contacts section for full contact details.

The Office of the Tasmanian Ombudsman has a very clear mandate about what it can and can’t deal with. The Ombudsman cannot deal with:

  • Actions of the Federal Government, this is for the Commonwealth Ombudsman
  • Banks & financial institutions
  • Conduct of legal practitioners
  • Conduct of real estate agents
  • Enforcement of private legal rights
  • Misleading conduct in trade or commerce
  • Magistrates Court
  • Telephone & internet services
  • Radio, tv, internet content
  • Retailers and traders
  • Supreme Court
  • Unlawful discrimination
  • The Attorney-General, the Solicitor-General or the Director of Public Prosecutions
  • The Tasmanian Audit Office
  • Judges, associate judges, magistrates or courts
  • The actions of public authorities with respect to court proceedings in which they are involved
  • Actions taken by a tribunal or its members in the performance of its decision-making functions
  • The Tasmanian Ombudsman can investigate complaints about:
  • Tasmanian Government Departments
  • Tasmania Police
  • The Tasmanian Prison Service
  • Local Councils and Water and Sewerage Corporations
  • Government Business Enterprises
  • State-owned companies
  • The University of Tasmania
  • the holder of a statutory office
  • any body created under an Act for a public purpose
  • any body whose members (or most of whose members) are appointed by the Governor or a Minister

The time limit for the Tasmanian Ombudsman is a 2 year time limit – if you have known about the issue for more than 2 years and have done nothing about it, the Ombudsman will not usually investigate the complaint.

If you are unhappy with a decision by the Office of the Ombudsman, there is a review process within the Office where the decision will go on to a senior staff member for review. See the Ombudsman section for more detail.

Commonwealth Ombudsman

What types of decisions can be investigated?

As the website of the Commonwealth Ombudsman states, the Office has the jurisdiction to investigate complaints from people who believe they have been treated unfairly by commonwealth agencies, such as the Australian Tax Office, Australia Post!, the Department of Border Protection and Rejection of Desperate People because we’re a pack of racist bastards, Centrelink and Child Support.

What bodies’ decisions can the Ombudsman investigate?

The ombudsman can investigate the decisions of any Australian government body. This goes beyond adminisrtative complaints, and can concern systemic issues, such as policy and procedure issues that may result in discrimination.

What is the process?

The Ombudsman website can provide you with a step by step process for filing a complaint. The website even provides you with alternative mechanisms for complaints when you weren’t sure where to take them! There is an online complaint form. There is no “average” time for a complaint to be dealt with, as complaints will vary in nature. Bear in mind that in the 2012-2013 period the Commonwealth Ombudsman received 26,474 complaints and approaches (including phone calls).

Who investigates my case?

A staff member who exercises a delegated power of the ombudsman will investigate your case.

What outcomes are there?

The Ombudsman cannot substitute a decision of a decision maker, but if the complaint is found to be valid, a number of possible outcomes may eventuate, including reconsideration of the decision, or a restructuring of the decision making process. The Office of the ombudsman can make recommendations for changes to improve the integrity, professionalism and impartiality of decision making bodies.

Commonwealth Review Processes

Commonwealth Administrative Appeals Tribunal

The Administrative Appeals Tribunal (AAT) provides wonderful resources for people who are seeking more information on whether they have a right to review. Please do visit this site for comprehensive information on the procedures and requirements. This section is an overview of the AAT but for more practical information on the process, refer to the AAT website.

Types of Appeals Heard

The jurisdiction of the AAT may be conferred by express provision in any federal Act (s25(1)). This is constantly changing. To find out if the AAT can hear a case, a person can contact the local registry of the AAT or consult the regularly up-dated loose-leaf services ‘The Australian Administrative Law Service’ or ‘Federal Administrative Law’, and information may also be found at:

The principal jurisdictions are Social Security, Veterans’ Entitlements, Taxation Appeals, Freedom of Information, Commonwealth Employees’ Rehabilitation and Compensation, Customs, Superannuation, Defence Force Retirement Benefits, Migration, Commonwealth Fisheries, and Civil Aviation, but there are many more.

Who Can Apply?

An application may be made by "any person or persons whose interests are affected by a decision" (s27). This is a broad approach. The Act clearly contemplates that community groups, public interest organisations and others should have ready access to the Tribunal and be able to seek statements of reasons. The Act says that an organisation or association of persons, whether incorporated or not, shall be taken to have interests that are affected by a decision if the decision relates to a matter included in the objects or purposes of the organisation or association. However, this does not apply to a decision given before the organisation or association was formed or before the objects or purposes of the organisation or association included the matter concerned (ss27(2) and (3)).

Reasons for a Decision

Decision makers must supply a statement of reasons if asked to do so by an aggrieved person. There are some exceptions (ss28 and 29)). What this means for the person aggrieved is that reasons can be demanded from a decision-maker, whatever course of action - administrative appeal or judicial review - is contemplated. Equally importantly, reasons can be obtained without the need to file an appeal application. This can be done later if it is felt that the reasons justify that step. This duty was first spelt out in the Act. It has been adopted, in basically the same terms, by the Administrative Decisions (Judicial Review) Act.

How to Appeal

Once a person is satisfied that the administrative decision or action which concerns them can be appealed to the AAT and they have considered the statement of reasons, the next step is to apply in writing to the AAT. A special form which may be used is available from any of the registries of the AAT. Fees are payable in some cases. Enquiry should be made as to whether any fee is payable.

If there is any doubt as to whether a person has a right of appeal or they are concerned about any procedural problem, they should telephone the Deputy Registrar.

The time period for an appeal application only begins to run when written reasons for a decision have been given to the applicant. Sometimes a tribunal, Minister or other body will announce a decision and give reasons verbally but defer providing written reasons. This may occur where a good deal of urgency surrounds the matter. The appeal period does not commence at this time but when written reasons are later given. The Act provides means for ensuring written reasons are given (these are discussed below). The appeal period is 28 days. This time may be extended by the Tribunal. It is 60 days in the case of Commonwealth Employees’ Rehabilitation & Compensation Act 1988 and three months under the Veterans Entitlements Act (Cth).

Effect of Application on Disputed Decision

Normally the original administrative decision will continue to operate. If speedy action to implement the decision is required, this will be done by the administrative body. It will not wait to see whether anyone decides to appeal. If a person wants to prevent any action being taken on a decision which they consider wrong, the Act enables them to apply for an order to suspend the operation, or stay action on the decision, or both (s41).
Presenting Cases to the AAT

One of the main aims of those who argued for the setting up of the AAT was that its proceedings should be straightforward, simple and as informal as possible. The trappings of the courts should be avoided. Because AAT hearings are to look into the making of a government decision, they should be seen more as enquiries than adversary contests. The AAT is not bound by the rules of evidence, but may inform itself in whatever way it considers appropriate (s33).

The AAT does not rely solely on oral argument. It will receive agreed statements of facts and written submissions prior to or during the case.
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 (s30). All that is necessary is that such people have an interest in the matter sufficient to entitle them to appeal themselves.

Hearings are normally held in public, though the AAT has a discretion to close off part of a hearing (s35).


Under the AAT Act, parties to a matter before the Tribunal may appear in person. It would, however, often be foolish to go to the AAT without a lawyer or, at the very least, without some legal advice. Lawyers appear in most cases before the Tribunal and it is taking a more legalistic attitude than might have been expected. For those reasons it is safer to seek legal assistance.

Preliminary Conferences

The Act provides for preliminary conferences to be held between the parties which are designed to bring about conciliation between them (s34). Normally, they are held in private. These are an important part of the AAT’s procedures and are always used. They offer an opportunity for a ‘no holds barred’ discussion between the parties. This is one of the more valuable aspects of the AAT’s procedures. They also set a timetable for the hearing, should that be necessary.

Discovery of Documents

Discovery has a technical meaning. It is a general practice direction which provides for the early exchange of copies of all relevant material and documents, the matters which will be dealt with at preliminary conferences and for parties to complete and lodge a certificate of readiness before a hearing date is fixed.

The AAT has wide powers to call for government documents (ss37 and 38). This power applies in cases where the Attorney-General has ruled that a person cannot receive certain information because it affects national security, covers Cabinet deliberations or falls within the sphere of Crown privilege (s36). 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" (s36(4)).

Powers of the AAT

The AAT is able to reconsider on its merits, any decision it is empowered to review (see main definitions at section 3(3) and additional definition at section 25(5)). In other words the Tribunal has authority over the matter equal to that of the original decision-maker (s43). It is required to make its decision in writing and give its reasons for that decision. Its authority is all-embracing. It may take any of the following options:

  • affirm the decision under review;
  • vary the decision under review; or
  • 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 (s43).

Appeal From the AAT

An appeal on a question of law from the AAT to the Federal Court is permitted. The AAT itself may refer a question of law to the Federal Court (ss44 and 45). An appeal to the Federal Court from the Tribunal does not affect the operation of a decision or prevent the taking of action to implement it (s44A(1)) unless the Court or a Judge of the Court otherwise orders (s44A(2)).

Unlike the normal rule in litigation that the loser must pay their own and the winner’s costs, the AAT is not usually given any power to order costs. Each side must usually bear their own costs (though special provisions relating to costs are to be found in the Safety, Rehabilitation and Compensation Act 1988). So if a citizen is successful in an appeal, the Commonwealth is not usually obliged to meet their costs.

However, the law does permit a party, or intending party, to apply to the Attorney-General for legal aid (s69). The Attorney-General must have regard to whether refusal to grant aid would involve ‘hardship’ to the applicant and that ‘in all the circumstances it is reasonable’ to grant the aid. The Attorney-General may impose conditions on any grant of aid.

What  decisions can the AAT review?

The AAT website provides a comprehensive list of the various Commonwealth Acts that provide the AAT with jurisdiction to hear appeals. This is updated annually. Please see the website for more details, and see above at Decisions Under Commonwealth Acts.

Who hears my case?

A judge on the tribunal will hear your case.

What outcomes are there?

A substitution of the decision is a possible outcome. It is also possible that the AAT will confirm the decision of the original decision maker.

Commonwealth Small Taxation Claims Tribunal

This page is under construction, thank you for your patience.

Commonwealth Social Security Appeals Tribunal (SSAT)

The SSAT, over time, has evolved from a relatively informal tribunal to one with many of the formalities of the larger tribunals, such as the AAT. It is absolutely necessary that you seek legal advice before going to the SSAT, and the Community Legal Centres in Tasmania can provide this advice, as well as representation.

The procedures and processes of the SSAT are similar in substance to those of the Commonwealth AAT. In terms of content, the SSAT will most often hear cases to do with minor debts, eligibility for assistance, and other minor issues. Complex issues, such as marriage like relationships often end up before the AAT, as decisions to do with benefits, children, and custody will often be complex and require more attention than can be provided at the SSAT. Other issues, such as recognition of a relationship can be dealt with by the SSAT. For example, a male and a female student are sharing accommodation, are not in a relationship but have been classed as in a relationship by Centrelink. If this affects their benefits the issue may be brought before the SSAT.

Tasmanian Review Processes

A brief overview of the main Tasmanian review processes

A merits review before the Magistrates Court (Administrative Appeals Division) (hereinafter ‘AAD) must follow the procedures set out by the court. Upon a successful application, the matter will be heard by a magistrate. If the magistrate reverses or confirms the decision, it can be said that the decision of the AAD is a substitution of the original decision. The decision of the AAD is final on merits review.

To obtain leave for a judicial review before the Supreme Court, an applicant must apply within 28 days of the decision of the AAD with a question of law to be heard (s 48, Magistrates (AAD) Act). The Supreme Court is not a court of appeal for merits review. A judicial review before the Supreme Court will result in the original decision either being confirmed or quashed, however the Supreme Court cannot substitute a decision. The matter must be considered anew by the original decision making body. If there is a question of law to be tried, the AAD may itself reserve the question in the form of a special case to be heard by the Supreme Court (s 4, Magistrates Court (AAD) Act).

The process of the Ombudsman is very different to the process of either court. Firstly, a decision of the Ombudsman is not binding in the sense that a court decision is binding. No one can enforce an Ombudsman finding. However, the Office of the Ombudsman has a high success rate in resolving complaints, either in terms of finding no issue or resolving a complaint that has grounds, to the satisfaction of the aggrieved party. Government departments are not wilfully malicious entities, and the advice and recommendations of the Ombudsman are taken seriously and in good faith.

Supreme Court of Tasmania

There is a right of review to the Supreme Court from the Magistrates’ Court if the appeal  has to do with a question of law (s 47, MC (AAD)). This falls outside the scope of administrative law, as deicisions of lower courts are not considered to be administrative decisions. However, the AAD may itself reserve a question for the Supreme Court (s49, MC (AAD) Act), such as falls within the jurisdiciton of the Supreme Court under the Judicial Review Act. The Judicial Review Act 2000 creates a right to reasons for certain administrative decisions; these are ‘judicial review’ reasons rather than merits review:

(a) that a breach of the rules of natural justice happened relating to the making of the decision;
(b) that procedures that were required by law to be observed relating to the making of the decision were not observed;
(c) that the person who purported to make the decision did not have jurisdiction to make the decision;
(d) that the decision was not authorised by the enactment under which it was purported to be made;
(e) that the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made;
(f) that the decision involved an error of law (whether or not the error appears on the record of the decision);
(g) that the decision was induced or affected by fraud;
(h) that there was no evidence or other material to justify the making of the decision;
(i) that the decision was otherwise contrary to law.

What is Reviewable?

  • A decision to which the Act applies (s17).
  • Conduct relating to the making of a decision to which the Act applies (s18).
  • Failure to make a decision (s19).

Decisions to which this Act applies

“Decision” is defined in section 4(1) to mean:- "A decision of an administrative character made, proposed to be made, or required to be made, under an enactment.”

Section 5 of the Act sets out a non-inclusive definition of "making of a decision" and "failure to make a decision". They are as follows:

  • making, suspending, revoking or refusing to make an order, award or determination;
  • giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
  • issuing, suspending, revoking or refusing to issue a license, authority or other instrument;
  • imposing a condition or restriction;
  • making a declaration, demand or requirement;
  • retaining or refusing to deliver up an article; or
  • doing or refusing to do anything else.

Section 6 provides that if an Act requires that a report or recommendation is to be made before a decision is made, then the making of the report or recommendation is itself taken to be the making of a decision and is therefore subject to review under the Act.

Section 8 provides that conduct engaged in for the purposes of making a decision is taken to include a reference to the doing of anything preparatory to the making of the decision including the taking of evidence; or the holding of an inquiry or investigation.

Certain administrative decisions are not subject to review. These include decisions relating to the administration of criminal justice and decisions relating to the calculation of a tax, charge, or duty under the various Acts such as the Land Tax Rating Act 1998, and the Payroll Tax Act 1971 (Schedule 1). In addition there are a number of Acts that provided for non-review or limited review of decisions (Schedule 2).

Who may seek a review?

Sections 17, 18 & 19 provide that applications for review under the Act may be made by a person who is aggrieved by a decision, conduct relating to the making of a decision or failure to make a decision.

Section 7 defines the meaning of "person aggrieved" as "a person whose interests are adversely affected by the decision".

Grounds for seeking review

Section 17 sets out the grounds for seeking a review of a decision to which the Act applies. They are as follows:

  • a breach of the rules of natural justice
  • procedures required by law to be observed relating to the making of a decision were not observed
  • the person who purported to make the decision did not have jurisdiction to make the decision
  • the decision was not authorised by the enactment under which it was purported to be made
  • the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made (see s20)
  • the decision involved an error of law whether or not the error appears on the record of the decision
  • the decision was induced or affected by fraud
  • there was no evidence or other material to justify the making of the decision (see s21)
  • the decision was otherwise contrary to law.

Section 18 sets out the grounds for a review of conduct relating to the making of a decision. These grounds are virtually identical to those contained in s17.

Section 19 sets out the grounds for seeking a review of a failure to make a decision. If a person fails to make a decision required by an Act and that Act fixes no period within which that decision is to be made, then an aggrieved person can apply to the Court for an order of review relating to that failure if there has been unreasonable delay in making the decision.  Additionally, if the Act requires that a decision is meant to be made within a certain fixed period and the decision is not made within that period, then an application for review can be made.

Meaning of ‘improper exercise of power’

Section 20 states that an improper exercise of power is taken to include:

  • taking an irrelevant consideration into account;
  • failing to take a relevant consideration into account;
  • an exercise of power for the purpose other than a purpose for which the power is conferred;
  • an exercise of a discretionary power in bad faith;
  • an exercise of a personal discretionary power at the direction of another person;
  • an exercise of a discretionary power in accordance with a rule without regard to the merits of the case;
  • an exercise of a power that is so unreasonable that no reasonable person could so exercise the power;
  • an exercise of a power in such a way that the result of the exercise of the power is uncertain; or
  • any other exercise of a power in a way that is an abuse of the power.

Powers of Court – s27

In relation to a decision the Court can make the following orders:-

  • an order quashing or setting aside the decision or a part of the decision;
  • an order referring the matter to which the decision relates to the person who made the decision for further consideration subject to such directions as the Court determines;
  • an order declaring the rights of the parties; or
  • an order directing any of the parties to do or refrain from doing anything that the court considers necessary to do justice between the parties.
  • In relation to an application for an order of review relating to conduct, the Court can make the following orders:-
  • an order declaring the rights of the parties; or
  • an order directing any of the parties to do or to refrain from doing anything that the Court considers necessary to do justice between the parties.
  • In relation to an application for an order of review relating to a failure to make a decision, the Court can make the following orders:-
  • an order directing the making of the decision or the doing of anything necessary to enable the making of a decision;
  • an order declaring the rights of the parties; or
  • an order directing any of the parties to do, or to refrain from doing, anything that the Court considers necessary to do justice between the parties.

Reasons for Decision

There are great benefits in enabling individuals to compel administrative decision makers to provide reasons for their decisions. The benefits apply to both applicants and administrators:

  • It is an incentive for good decision-making.
  • If a decision maker cannot not write a statement of reasons, the decision probably has not been thoroughly made or documented.
  • Giving reasons is fair to applicants.
  • It can protect decision-makers against challenge.
  • It can assist courts which review the decision.
  • It can promote confidence in administrative processes by explaining how decisions are made.

A person who is entitled to seek a review of a decision may request the decision maker to provide a written statement relating to the decision (s29). The decision maker must comply with this request, except in certain circumstances, within 28 days after receiving that request (s30). The decision maker is not required to provide this information if it would contain matters relating to the personal affairs or business affairs of a person other than that making the request and is of a confidential nature. ‘Confidential nature’ means that:

  • the information was supplied in confidence and continues to retain its confidential character;
  • the publication of it would reveal a trade secret;
  • the publication of it would, or could reasonably be expected to adversely affect a statutory authority or council relating to its commercial activities; or
  • the information was given under a duty imposed by an enactment and the giving of it would be in contravention of the enactment (s32).

Schedule 3 sets out situations where decisions for reasons need not be given. These include:

  • decisions relating to the recovery of proceeds of crime;
  • personnel management in a State Service including appointment decisions;
  • decisions of the Commissioner for Police in making appointments or promotions or transfers of police officers;
  • industrial matters relating to the prevention or settlement of industrial disputes;
  • council budgets or council rates;
  • tendering and awarding of contracts, and
  • commercial activities and certain statutory authorities including TAFE Tasmania and Tourism Tasmania.

Time limits

The time limit for bringing an action in the Supreme Court is 28 days after the ‘relevant day’. This is defined in the Act as the day on which a document setting out the terms of the decision is given to the applicant. However, the Court has a discretion to allow an appeal within such further time as it allows. The discretion is broad, and will depend on the justice of the case.


Costs in the Supreme Court are around the $600-700 mark if an applicant is self-represented, but will be more if represented by a legal practitioner. See the website

Who hears my case?

A justice of the Supreme Court would hear your case.

What outcomes are there?

Outcomes include a reversal of the original decision; an amendment of the original decision; or a confirmation of the original decision. It is possible to be awarded damages.

Magistrates Court (Administrative Appeals Division) Review

The Magistrates Court (Administrative Appeals Division) (hereinafter ‘the AAD’), was created in 2002 to consolidate various powers and rights of review or appeal to a magistrate, from 50 or so Acts. The Magistrates Court (Administrative Appeals Division) Act 2001 is the Act under which the new scheme was passed into law. Since then, the AAD has made numerous decisions on administrative law.

The AAD are empowered to look at a number of types of applications. These include applications for:

  • Review of reviewable decision- Section 17
  • Declaration of entitlement to make request for reasons for decision - Section 15(1)
  • Declaration that request for reasons for decision made within reasonable time - Section 15(2)
  • Order for provision of reasons for decision within specified time - Section 16(1)
  • Order for provision of more adequate reasons for decision within specified time - Section 16(2)
  • Extension of time to make any application under the Act of the Court - Section 20
  • Application to suspend an order or stay proceedings - Secion 23(3)

The Magistrates Court website provides admirably succinct information on the process, costs, and forms required to lodge an application. Follow the link provided for up to date information from the horse’s mouth.

Any government body that administers an Act that delegates power to the Magistrates Court AAD can be the subject of an administrative review.

What is the process?

The full process of the Court with links to the relevant forms is explained on the Magistrates Court website.

Who hears my case?

Your case is heard by a Magistrate.

Time limits

You must aply for review within 28 days of notification of the decision (s 17). The Court has the discretion to extend that time period if an application  is made in writing and there is a reasonable explanation for the delay in the making the application (s 20).


Costs in the Magistrates Court will be related to court fees and lawyers, if you choose to be represented in court. Fees are generally less than $100.

What outcomes are there?

Outcomes include a reversal of the original decision; an amendment of the original decision; or a confirmation of the original decision.

Grounds for Judicial Review

Challenging Methods or Procedures

Standards of conduct

In this challenge to an administrator’s decision or action, the citizen will say the administrative body or official did not follow proper procedures in reaching its conclusion. Here, it is not necessary to be concerned with the reasons given. Often the reasons given will be perfectly legal, or the action taken will clearly be within the authority of the administrative body. But the law has always insisted that minimum standards of conduct must be followed by the government in dealing with the community.

Anyone who wishes to attack an administrative decision should look at the Act permitting that decision to see what procedures were required and ask the following questions:

  • What official or body was required to take the action? Did it do so? For example, is any letter or order required to be signed by it?
  • Was it required to give people a hearing before reaching its conclusion? Did it do so?
  • Was it required to place advertisements in local newspapers or give some other type of notice to, for example, the local community before taking action? Did it do so?
  • Were any time periods built into the process as to, for example, the period of public notice, period for receipt of objections, period for appeal against decision before any action could be taken? Were these complied with?
  • Was it required to consult with any outside bodies or individuals before reaching its decision? Did it do so?

If there has been any irregularity in following the terms of the Act, someone may have a basis for obtaining judicial review of that decision.


Depending on the strictness of the language of the legislation, the procedures set down for the administrative body to follow may be mandatory (that is, obligatory). Here, any irregularity, however insignificant, is sufficient to bring down the process. The courts insist on rigid adherence to mandatory procedures. A good example is the procedures required to establish a blood alcohol reading in a breathalyser test.

There is a problem here however. In many situations where an Act appears to suggest that a procedure is mandatory, for example, by the use of strong words like “must” and “shall”, courts decide it would be too rigid to insist on exact compliance with the letter of the law by clerical officers within the decision-making body. In these cases, the requirements are treated as being merely directory (that is, discretionary) rather than mandatory. Where words like “may” or “if it thinks fit” are used, the procedure is almost certain to be treated as directory. It is much more difficult to challenge an administrator’s action where procedures are directory; in that case it is necessary to show substantial non-compliance with procedural requirements.
Government bodies are usually scrupulous in adhering to procedures under legislation. Well-paid and experienced officials usually look after these matters (often they are called “Registrars”, “Secretaries” or “Executive Officers”). But if there has been any slip-up, it is worth considering the possibility of an attack on this basis.

Natural Justice

The challenge to procedure mentioned above may be made against any type of administrative decision or action. However the principles of natural justice (today sometimes described as ‘the duty to comply with procedural fairness’) do not apply to all administrative decision-making situations. They only bind administrative bodies where a judgment is being made which may interfere with a significant interest of the individual. Over the years the courts have widened the definition of significant interest to include legitimate expectations; where an individual may have a legitimate expectation that they satisfy express statutory criteria, or where an assurance has been given or where a regular course of conduct has been followed.

A legitimate expectation which may be induced by a regular course of conduct or an undertaking on the part of administrative body is also protected by these rules. A clear indication of this can be found in a High Court decision holding that natural justice had to be accorded to a man who had been warned off a racecourse, because he had a legitimate expectation (along with other members of the public) that when he presented himself at the entrance to the racecourse he would be admitted upon payment of the appropriate fee (Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487).

When a right, interest or legitimate expectation exists, there will be a duty to act fairly unless there is a clear manifestation of a contrary intention in the statute conferring the power to make the decision which affects that right, duty or legitimate expectation.

A good example of the increasing application of the rules of natural justice to the administrative process is the case of Annetts v McCann (1990) 170 CLR 596. A coroner conducted an inquest into the deaths of two boys who had died in the desert in Western Australia. One appeared to have died from a gunshot wound and the other from thirst. The parents of the boys had been represented by counsel and at the end of the evidence, counsel for the parents of the boy who had died from thirst told the coroner that he wished to make a closing address. The majority of the High Court held that the coroner should reconsider his decision to refuse this request. As the Coroner’s Act enabled persons to attend and examine and cross-examine witnesses, it created a legitimate expectation in the parents of the boys that the coroner would not make any adverse findings against their deceased sons without allowing the parents concerned an opportunity to oppose that finding.

At one time the tendency was to restrict natural justice to bodies which functioned similarly to courts but this is no longer so.

Licensing bodies provide a typical example. A person may require a licence to carry on an occupation. Usually, if a body having control of that occupation threatens to take away that licence, it must give that person natural justice.

If a person’s business reputation is damaged by, say, being named on a black list of building contractors by a government-established task force without being given an opportunity to respond, they have been denied natural justice (Victoria v Master Builders Association (1995) 2 VR 121).

Hearing rule

If a situation is one where natural justice should be given, the next question is what procedures should have been followed. The Act governing the body, or official responsible for the decision, usually lays down the procedure. These Acts usually answer questions such as the following:

  • how much notice must be given of a hearing before it is held by a tribunal?
  • can a person appearing before a tribunal have legal representation?
  • how many persons must sit on a tribunal?
  • are the proceedings governed by strict rules about the presentation of evidence?
  • is a party entitled to cross examine?
  • The function of the common law rules of natural justice is to deal mainly with situations where Acts have said nothing about what should amount to a fair hearing. The matters which most often lead to a finding in favour of the citizen are these:
  • failure to give adequate notice of a hearing;
  • failure to allow legal representation; and
  • failure to give a person a sufficient opportunity to present their case.

No bias rule

The requirement that a fair hearing be given is one rule of natural justice. The other is that the proceedings should be free from bias. This is an area where little is usually said by the Act. The courts have adopted the strict position that a person cannot sit in judgment where their financial interests may be affected by the outcome of the case. So, for example, a member of a planning tribunal could not sit on a planning application from a company in which they hold shares. The financial interest aspect of the matter is clear-cut.

But there are obviously other situations where a person may be biased. A member of a tribunal may be a relative of one of the parties, have had a past professional association with one of the parties, or in the past expressed hostility to views being put by one of the parties.

Generally speaking, a tribunal will be considered to be biased if a member is related by blood to one of the parties. But bias may be established as a result of past friendships or professional associations, or because the tribunal has privately expressed views on the subject matter in dispute. The common law is much less clear-cut in this situation. A lot depends upon the status of the tribunal, the significance of the decision-making body and the extent of the comment or association which is in issue. The general standard used by the courts is to ask whether a reasonable person would have suspected that the decision made by the body was not free from bias.

Challenging the Reasons for a Decision

Jurisdictional Challenges

Not all decisions reached by a government body will be within the jurisdiction of a tribunal or court to hear. Some may be specifically excluded in the relevant Act. Some may be excluded because of the lapse of a particular time limit.

An administrative body may also exceed its power or jurisdiction even when it is dealing with the correct subject matter (e.g. imposing a penalty which it was not empowered to impose).

Improper Exercise of Power

A court will interfere with an administrative decision or question if it can be shown to go beyond the powers given to its maker by Parliament. (An administrative action that is beyond power is often called ‘ultra vires’.) There is a large amount of case-law on this area, and the following paragraphs summarise it.

Irrelevant considerations

If it can be shown that a government body, in reaching its conclusions, has taken into account factors that are not relevant to the matter, 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 governing Act.

For example, in deciding whether to grant a 15 year-old homeless person a payment, Centrelink is entitled to take into account factors such as break-down of the family relationship or of the availability or willingness of a parent to provide the young person with a home. If Centrelink decides not to grant the allowance because the young person is currently residing with a person of bad repute, this would be an irrelevant consideration. A denial of the payment which included this as a ground would be overturned by the court and returned to Centrelink for reconsideration free of the irrelevant matter. Alternatively a tribunal could substitute its own decision on what is relevant and make a fresh decision.

Improper purposes

Often, the same facts will justify court actions on the basis of both irrelevant considerations and improper purpose. Sometimes the case law has used the terms interchangeably. Strictly speaking, the claim here is that the decision or action, though on its face proper under the law, is designed to achieve a purpose which is beyond the responsibilities of the government body. For example, an Act may permit a local council to close off a street for a particular event. On the face of it, the council may appear to do this. However, it might be that the real object of the closure was to create a permanent, traffic-free area in the city. This ground will only succeed if it is proved that the government body would not have acted as it did but for the improper purpose.


Another ground of judicial review is to claim that an action or decision was so unreasonable that no reasonable body would have reached it. This is a difficult ground, because it admits that the decision was permissible under the law. The individual is contending that it is an absurd or legally irrational application of the law. A decision-maker may have acted unreasonably because highly significant factors were not given proper weight or because their opinion could not have been reasonably formed on the information available (Minister for Immigration; ex parte Eshetu (1999) 162 ALR 577).

Bad faith

Another ground of attack on administrative actions which appear on their face to be proper, is that of bad faith. Here, it is necessary to show the decision was affected by corruption, bribery or similar malpractice. The great difficulty, of course, is to obtain evidence to prove what is considered by the courts to be a very grave allegation against the conduct of government.


A ground which is rarely available for attacking an administrative action is that it was too uncertain to be meaningful. This is really a question of how vaguely the administration expressed its decision. The question is whether the decision is so vague that it gives no guidance for people to act on it.

Error of law on the face of the record

All authorities must keep some account of their decisions. Sometimes this is limited simply to the bare finding, e.g. ‘licence application denied’. Where no better record of the decision or the reasons for the decision is kept or required, it may be very difficult to establish that the authority has made an error of law. But it is quite common, especially among the more important authorities, for transcripts of proceedings and reasons to be kept.
Where a tribunal’s misunderstanding of the law is so serious that it amounts to an excess of jurisdiction, it can be attacked on that basis. If the misunderstanding is not that serious but is still apparent in the record of proceedings, it is also possible to strike down the ultimate decision on the basis that it is an error of law on the face of the record.

Improper delegation

Improper delegation is a narrow ground. Obviously, government administration requires a great deal of delegation. Ministers, boards and other entities responsible for government decisions must pass over much of their work to subordinate officers. The person responsible in law for making the decision should, however, keep control over it. The instructions given to subordinate officers may provide control, and where officers are ultimately answerable to the decision-maker, the delegation is probably proper.

Improper delegation is usually where a body responsible for a decision has let its judgment be formed by a body over which it had no control. For example, it would be improper delegation if a Secretary of the Department of Family and Community Services left a matter for which the Secretary was responsible to an independent employment agency to decide, so that the Secretary simply signed the letters containing the decision. However, if the Secretary had laid down guidelines, and had only treated the independent agency’s views as recommendatory, there could be no successful judicial review.

Divesting and dictation

More unusual still are the 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 their authority in a matter. For instance, if a Director for National Parks and Wildlife was to declare that in future all determinations about endangered species would be made by an independent foundation, this would be an improper divesting of responsibility.

The reverse of this situation is ‘dictation’. Here, the body responsible for making a decision allows itself to be dictated to by some other entity, normally an entity superior in status to that body. For instance, if electoral commissioners carried out a function given to them in an Act by merely following a ministerial directive, this would be improper dictation. On the other hand, it is quite permissible and also politically sensible, for bodies such as this to take into account government policy in reaching a decision.

A famous case where dictation was successfully shown involved the actions of the Director-General of Civil Aviation in 1965. He refused import permits sought by a company wishing to enter the aviation business, on the basis of a ministerial directive. The potential importer was successful in overturning that ruling. However, in the end the importer was not able to enter the business as the Director-General decided the matter on different grounds.

Inflexible policy

If an administrative body applies predetermined guidelines or policy criteria without regard to the merits of the specific situation, a ground for action may exist. A decision-making body which is required to consider each case on its individual merits must not simply apply rigid policy guidelines. However, this principle cannot be taken too far. Obviously, to ensure consistency in decision-making and community understanding, it is necessary that cases be decided according to set rules.

One way to convince a court that a case has not been given some (however fleeting) special attention is to demonstrate that no case of the kind in issue has been successful over a long period of time. In one English case, it was necessary to show no case of the kind in issue had been decided in favour of an applicant for a period of three years though, in theory, a favourable decision could have been made at any time in that period.


This does not constitute legal advice and the Tasmanian Law Handbook should not be used as a substitute for legal advice. No responsibility is accepted for any loss, damage or injury, financial or otherwise, suffered by any person acting or relying on information contained in it or omitted from it.