Administrative Law FAQ

Administrative law is the body of law governing the activities of government decision-makers. It deals with the lawfulness of decisions, the procedures required to make them, the right to seek review, and the remedies available when decisions are flawed.

Merits review looks at whether a decision was the correct or preferable one — the tribunal stands in the shoes of the original decision-maker. Judicial review looks only at the legality of the decision, not its merits. Each has different forums, grounds, and remedies.

Since 14 October 2024 most Commonwealth merits review is conducted by the Administrative Review Tribunal (ART), which replaced the Administrative Appeals Tribunal. The ART hears matters across migration, taxation, veterans, social security, and many other jurisdictions.

The Administrative Decisions (Judicial Review) Act lists grounds including breach of natural justice, procedures not observed, no jurisdiction, decision not authorised, improper purpose, irrelevant considerations, unreasonableness, error of law, and no evidence.

Natural justice (procedural fairness) requires that a person affected by a decision has a fair hearing (the hearing rule) and that the decision-maker is impartial (the bias rule). Its content varies with the statutory context and the stakes for the individual.

The hearing rule requires that a person be given notice of a proposed adverse decision and an opportunity to respond before the decision is made. The content depends on the statute and circumstances — sometimes an oral hearing, sometimes only a chance to comment on adverse information.

The bias rule requires decision-makers to be free of actual or apprehended bias. Apprehended bias is tested by whether a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the decision.

Jurisdictional error is an error that goes to the power of the decision-maker to act — for example, misapplying the law, denying natural justice, or making a decision without any evidence. It is the principal ground for constitutional judicial review under section 75(v) of the Constitution.

Remedies include certiorari (quashing the decision), mandamus (compelling performance of a duty), prohibition (preventing further unauthorised action), declaration, and injunction. The court can also remit a matter for redetermination.

FOI gives individuals a legally enforceable right of access to documents held by government agencies. Requests can be made for any document in the possession of the agency, subject to exemptions such as personal privacy, cabinet documents, and some law enforcement material.

Federal agencies must generally decide FOI requests within 30 days, extendable with notice. If a request involves third-party consultation, more time is allowed. Delays are common for large or sensitive requests, and complaints can be made to the OAIC.

Yes. Applicants can seek internal review by the agency, then review by the Information Commissioner, and then review by the ART. Each level involves a fresh consideration of whether the document should be released.

A person who is entitled to seek judicial review under the ADJR Act or ART merits review can request a written statement of reasons setting out the findings on material questions of fact, the evidence, and the reasons for the decision.

An applicant must have a sufficient interest to bring a judicial review — this is narrower than merits review and has been interpreted flexibly in public interest cases. Special rules apply to Attorneys-General and relators.

The ART hears Commonwealth merits review matters. Each state has its own civil and administrative tribunal (NCAT, VCAT, QCAT, SACAT, WASAT, ACAT, TASCAT) for state government decisions. Their jurisdiction and procedures are set by state legislation.

Under the ADJR Act, an application must be made within 28 days of the statement of reasons being provided, or within such further time as the court allows. Under the Migration Act, judicial review has a strict 35-day limit.

A decision is unreasonable if it is so unreasonable that no reasonable decision-maker could have made it. Following Li, Australian courts take a slightly broader view, focusing on whether there is an intelligible justification for the decision.

A legitimate expectation could trigger procedural fairness based on past practice, representations, or ratified treaties. It has been substantially narrowed in Australia — its procedural content now depends on general principles of statutory construction rather than the doctrine itself.

Generally no. Government decision-makers acting in good faith are protected by statutory and common law immunities. Claims usually lie against the Commonwealth or State rather than the individual officer, except in narrow cases of misfeasance in public office.

Merits review in the ART is generally cheaper — filing fees are modest and cost orders are uncommon. Judicial review in the Federal Court typically costs $30,000-$250,000+ and follows the usual costs-follow-the-event rule, making it a higher-risk forum.