Administrative Review (NSW)
Administrative review in New South Wales is the process by which the decision of a government department or government official is reviewed and confirmed, reversed or altered. There are two types of administrative review that can occur in NSW. Reviews made by an independent decision-maker can be reviewed on the merits of the decision (known as ‘merits review’), and a decision can be reviewed based on whether it was lawfully made (known as ‘judicial review’).
In New South Wales, applications for merits review are made is the NSW Civil and Administrative Tribunal (NCAT), which began operating on 1 January 2014. Applications for judicial review of a decision are made to the administrative law list of the Supreme Court of New South Wales.
NSW Civil and Administrative Tribunal
The NSW Civil and Administrative Tribunal began operating on 1 January 2014 as a ‘super tribunal’, taking over the jurisdiction of over 20 tribunals that no longer exist. The rules that govern the NCAT are the Civil and Administrative Tribunal Act 2013.
The Tribunal’s divisions include:
- the Consumer and Commercial Division
- the Administrative and Equal Opportunity Division, and
- the Occupational Division.
Each division of NCAT is governed by its own set of rules and has its own jurisdiction for conducting administrative review.
Administrative review in New South Wales –
In order to conduct a merits review, the NCAT must be expressly given jurisdiction by the legislation under which the original decision was made. This is called its administrative review jurisdiction. The Administrative and Equal Opportunity Division, for example, has jurisdiction to review decisions made by the NSW Office of State Revenue in relation to the following:
- state taxation issues
- decisions on granting firearms licences
- decisions on whether to release information held by a government agency;
- decisions on working with children checks.
Merits review process
The rules for how the Tribunal will conduct merits reviews are contained in the Administrative Decisions Review Act 1997. Who is eligible for seek review of a decision depends on the kind of decision being reviewed.
An application form for a merits review must be completed and lodged with the Tribunal. The Tribunal then decides what the correct and preferable decision was based on the facts and the law.
Generally speaking, in an ACAT matter a person requires leave to be represented by a legal practitioner. The Tribunal will give the applicant written notice of the decision and what rights they have to appeal it.
An applicant can also request that the Tribunal give them reasons for the decision. The Tribunal may refuse to give reasons in certain circumstances (eg if the request wasn’t made within a reasonable time after the decision).
Administrative review in New South Wales – right of Appeal
In certain circumstances, a person can apply for an internal merits review of a decision made by the Tribunal. When this occurs, the appeal panel effectively steps into the shoes of the Tribunal member. It can consider new evidence and make such orders as it considers appropriate.
A person cannot seek a further merits review by the Supreme Court of NSW. However, they can apply to have the decision reviewed by the Supreme Court on a question of law.
Administrative review in New South Wales – Judicial Review
Judicial review is the process of reviewing whether a government decision was lawful. Unlike the Commonwealth and some other states and territories (eg Queensland), New South Wales has chosen not to create legislation setting out how judicial review is undertaken. Instead, it follows the common law.
There are a number of grounds for judicial review, which include:
- an error of law was made by the decision-maker, or
- the decision-maker failed to take into account relevant material.
The Supreme Court has jurisdiction to undertake judicial review in NSW. The rules for how to apply for judicial review are set out in Part 59 of the Uniform Civil Procedure Rules 2005. An application for judicial review must generally be made within three months of the administrative decision.
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