Merits Review
Under s.27 of the Administrative Appeal Tribunal Act 1975 (AAT Act) (see the PDF document below), where legislation that a decision is made under by an APS agency or Minister (such as the Safety, Rehabilitation and Compensation Act 1988) allows for merits review of that decision, then the aggrieved person may request a relevant APS agency or the Administrative Appeals Tribunal to reconsider the merits of that decision and determine the correct or preferable decision.
| aat_act_1975.pdf |
Judicial Review
The Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) (see the PDF document below) sets out grounds for which a person aggrieved by an APS agency or Minister's administrative decision under legislation (such as the Public Service Act 1999) can seek judicial review of that decision by the Federal Magistrates Court or Federal Court. Judicial review is different from merits review because the courts cannot look at the substance of the decision-maker's assessment of the facts, only the process by which that decision was made. The courts cannot remake the decision, so typically the remedies available from judicial review involve remitting the decision to the original decision-maker with an order to remake the decision according to law. As a matter of public policy, the availability of judicial review is not usually seen as an adequate substitute for merits review.
The grounds for seeking judicial review of a decision under section 5 of the ADJR Act are:
Section 5 of the ADJR Act defines an improper exercise of the power conferred by the enactment as:
The grounds for seeking judicial review of conduct relating to the making of a decision under section 6 of the ADJR Act are:
Section 6 of the ADJR Act defines improper exercise of the power conferred by the enactment as:
Under section 7(1) of the ADJR Act, where:
Under section 7(2) of the ADJR Act, where:
The grounds for seeking judicial review of a decision under section 5 of the ADJR Act are:
- that a breach of the rules of natural justice occurred in connection with the making of the decision;
- that procedures that were required by law to be observed in connection with the making of the decision were not observed;
- that the person who purported to make the decision did not have jurisdiction to make the decision;
- that the decision was not authorized by the enactment in pursuance of which it was purported to be made;
- that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;
- that the decision involved an error of law, whether or not the error appears on the record of the decision;
- that the decision was induced or affected by fraud;
- that there was no evidence or other material to justify the making of the decision;
- that the decision was otherwise contrary to law.
Section 5 of the ADJR Act defines an improper exercise of the power conferred by the enactment as:
- taking an irrelevant consideration into account in the exercise of a power;
- failing to take a relevant consideration into account in the exercise of a power;
- an exercise of a power for a 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 or behest of another person;
- an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;
- an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;
- an exercise of a power in such a way that the result of the exercise of the power is uncertain;
- any other exercise of a power in a way that constitutes abuse of the power.
The grounds for seeking judicial review of conduct relating to the making of a decision under section 6 of the ADJR Act are:
- that a breach of the rules of natural justice has occurred, is occurring, or is likely to occur, in connection with the conduct;
- that procedures that are required by law to be observed in respect of the conduct have not been, are not being, or are likely not to be, observed;
- that the person who has engaged, is engaging, or proposes to engage, in the conduct does not have jurisdiction to make the proposed decision;
- that the enactment in pursuance of which the decision is proposed to be made does not authorize the making of the proposed decision;
- that the making of the proposed decision would be an improper exercise of the power conferred by the enactment in pursuance of which the decision is proposed to be made;
- that an error of law had been, is being, or is likely to be, committed in the course of the conduct or is likely to be committed in the making of the proposed decision;
- that fraud has taken place, is taking place, or is likely to take place, in the course of the conduct;
- that there is no evidence or other material to justify the making of the proposed decision;
- that the making of the proposed decision would be otherwise contrary to law.
Section 6 of the ADJR Act defines improper exercise of the power conferred by the enactment as:
- taking an irrelevant consideration into account in the exercise of a power;
- failing to take a relevant consideration into account in the exercise of a power;
- an exercise of a power for a 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 or behest of another person;
- an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;
- an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;
- an exercise of a power in such a way that the result of the exercise of the power is uncertain;
- any other exercise of a power in a way that constitutes abuse of the power.
Under section 7(1) of the ADJR Act, where:
- a person has a duty to make a decision to which the ADJR Act applies;
- there is no law that prescribes a period within which the person is required to make that decision; and
- the person has failed to make that decision;
Under section 7(2) of the ADJR Act, where:
- a person has a duty to make a decision to which the ADJR Act applies;
- a law prescribes a period within which the person is required to make that decision; and
- the person failed to make that decision before the expiration of that period;
| adjr_act_1977.pdf |
Commonwealth Ombudsman
Under the Ombudsman Act 1976 (see the PDF document below), the Commonwealth Ombudsman has wide powers to investigate complaints about administrative actions of most APS agencies to see if they are wrong, unlawful or discriminatory. Following an investigation, the remedies offered by the Ombudsman are:
- recommendations to APS agencies;
- specific reports to the Commonwealth Government; or
- broader reports making recommendations to the Commonwealth Government about systemic problems.
| ombudsman_act_1976.pdf |
