Administrative Review (Vic)

Administrative review in Victoria is the process of reviewing decisions made by a government agency, department or minister. Examples of administrative decisions include placing conditions on a planning permit, issuing a licence to a bus driver, ordering the destruction of a dog, and refusing access to documents under Freedom of Information laws.

Who conducts administrative review?

There are three main bodies responsible for administrative review in Victoria: the Victorian Civil and Administrative Tribunal (VCAT), the Supreme Court of Victoria and the Victorian Ombudsman Service. An administrative review can occur only if permitted by the legislation under which the decision was made.

Types of administrative review

A review of an administrative decision will be a merits review or a judicial review. A merits review body, which can be a tribunal or part of an agency, will “stand in the shoes” of the original decision maker, and make a fresh decision using all the evidence available to it. The aim is to ensure the “correct and preferable” decision is made. In contrast to a merits review, a judicial review is concerned only with ensuring the decision was properly made within the legal limits of the decision maker’s power. It is carried out by a court.

Before seeking either type of administrative review, a person should ask for reasons from the decision-maker. A person should also ensure they are someone with “standing” to sue. Standing is sufficient interest in a matter in dispute which entitles the applicant to bring proceedings before a court. A person has standing if they can show they are personally affected by a decision, but standing can be extended to people or organisations who can demonstrate a special interest in the subject matter.

Victorian Civil and Administrative Tribunal

When reviewing a decision, VCAT can exercise all the powers of the original decision-maker, plus powers allocated by the Victorian Civil and Administrative Tribunal Act 1998. VCAT can:

• affirm the decision;
• vary the decision;
• set aside the decision and substitute its own;
• set aside the decision and remit the decision to the decision-maker with directions or recommendations;
• invite the decision-make to reconsider their decision during the review.

The most common applications to VCAT relate to areas including building, child welfare, dangerous dog declarations and health practitioner regulation. Applications to VCAT can be made online.

Supreme Court of Victoria

Judicial review by the Supreme Court is available under the Supreme Court (General Civil Procedure) Rules 2005 and the Administrative Law Act 1978. It can arise directly from scrutiny of an administrative action or from a challenge to a decision made by VCAT, another tribunal or a lower court. Judicial reviews are heard in the trial division and examine whether the decision maker:

• was authorised to make the decision;
• followed proper procedure in making the decision;
• took into account all legal considerations.

A person has 60 days from the date of the decision to apply for judicial review. To apply, Form 5G and an affidavit must be filed.

If a judge finds the decision-maker erred, the judge can quash the decision, or order the decision-maker to reconsider the decision or rehear the case (if the decision-maker was a court or tribunal).

Victorian Ombudsman Service

This free service can review decisions made by councils; government departments and organisations; tertiary education providers; prisons; publicly funded community services and some professional boards. It cannot investigate private organisations, police, private disputes, or decisions made by courts or tribunals. It does not have power to change a decision but can investigate complaints and make recommendations which can be influential.

When a complaint is received, the Ombudsman attempts to resolve the complaint with the decision-maker and if unsuccessful, it will decide whether to investigate. The service aims to deal with most straightforward complaints within 30 days and more complex cases within 90 days. It aims to investigate more complex cases within 90 days.

Common outcomes of Ombudsman intervention include the decision-maker:

• reversing their decision that led to the complaint;
• acknowledging a mistake and apologising;
• better explaining their decision;
• making an ex-gratia payment.

For advice on administrative review, or advice or representation in any legal matter, please contact Armstrong Legal.