Administrative Review (Qld)
Administrative review in Queensland is any decision-making process that involves the review of a decision of a government agency, department or minister. It covers reviews of a decision not to grant a person a blue card, a decision to grant or refuse access to information under freedom of information laws and reviews of decision by the Department of Housing and the Department of Child Safety. While a lot of administrative law comes under the federal jurisdiction (such as Centrelink and immigration matters), there are also administrative review processes that are specific to particular states and territories. This article outlines administrative review in Queensland.
The two types of Administrative Review in Queensland
Administrative law has historically been a common law area, meaning that its principles have evolved through case law. Queensland, along with the Commonwealth government, the ACT and Tasmania, has partly codified (enacted legislation regarding) the area of administrative review.
There are two kinds of administrative review of decisions. They are based on different principles and are procedurally quite distinct from on eanother. The first is known as merits review, which, is a review of a decision based on its merits. The reviewing decision-maker must make a decision which is within the powers given to the original decision-maker by the legislation, and therefore stands in their shoes to assess what is the ‘correct and preferable’ decision. This kind of review is generally conducted by a specialist administrative tribunal created under statute to review administrative decisions (and for other specific functions). In Queensland, this tribunal is the Queensland Civil and Administrative Tribunal.
The second kind of administrative review is known as judicial review. Judicial review is conducted by the Queensland Supreme Court under the Judicial Review Act 1991. It occurs when a party applies for review of a decision based on assessing whether or not the decision was legally made. This is different from the first kind of administrative review where a determination is made as to whether the preferable or correct decision was made.
Administrative Review in Queensland through QCAT
The Queensland Civil and Administrative Tribunal has both original jurisdiction and review jurisdiction under the Queensland Civil and Administrative Tribunal Act 2009, the Queensland Civil and Administrative Tribunal Rules 2009 and the Queensland Civil and Administrative Tribunal Regulation 2009.
For a decision to be reviewed by QCAT, the piece of legislation under which the original decision-maker made his or her decision must specify that administrative review is available via QCAT. If the legislation does not specify this then QCAT does not have the jurisdiction to conduct a merits review. An application for administrative review must generally be made within 28 days of the date of the original decision. The review is conducted by way of a fresh hearing.
The decision-maker is obliged to assist QCAT by providing the tribunal with the reasons for the decision and any evidence or facts which helped them reach that decision. QCAT may order that the decision be stayed (suspended or withheld) pending the review’s outcome. QCAT may also order that the original decision-maker reconsider his or her decision, in which case they have 28 days to amend, set aside/quash, or amend the decision. If QCAT does not send the decision back to the decision-maker for reconsideration, it may substitute its own decision for the original decision (thereby setting aside the original decision), or it may confirm or amend the original decision.
Judicial review in the Supreme Court of Queensland
The Judicial Review Act 1991 allows for the judicial review of a decision, as well as judicial review of the failure to make a decision.
Only a person whose interests are adversely affected by a decision, or whose interests would be adversely affected by a decision, can apply for judicial review under the Act. Section 20 of the Act limits the grounds on which a person can apply for review. These grounds include that the principles of natural justice were breached, that the legislation did not provide legal jurisdiction to make the decision or that the decision was unauthorised (‘ultra vires’), that there was no evidence to justify or support the decision, that the decision was made in error, or that the decision-maker improperly exercised a power.
Most applications for judicial review must be filed with the Supreme Court of Queensland registry within 28 days of the decision or of the alleged failure to make a decision. The court has the power to make the following orders under the act:
- setting aside or quashing a decision;
- referring the decision back to the original decision-maker for reconsideration;
- declaring the rights of the parties; and
- ordering that the original decision-maker do or refrain from doing something.
Judicial review of decisions made by lower courts and tribunals follows a slightly different procedure. The Queensland Supreme Court does not any longer have the power to issue lower courts with prerogative writs (writs which order the court to do something), and reviews are done by applying for judicial review, which must occur within three months of the ground for review arising.
Commonwealth legislation decisions affecting Queenslanders
When applying for Administrative Review in Queensland, a person must be mindful that Commonwealth legislation may affect the proceedings. This includes the Administrative Decisions (Judicial Review) Act 1977 (Cth), the Administrative Appeals Tribunal Act 1975 (CTH), the Freedom of Information Act 1982 (CTH) and the Ombudsman Act 1976 (CTH).
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