Chapters

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

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 http://www.supremecourt.tas.gov.au/practice_and_procedure/fees/filing_fees.

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.

© 2013 Hobart Community Legal ServiceFeedbackDisclaimer