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.

© 2013 Hobart Community Legal ServiceFeedbackDisclaimer