Last updated 20 May 2022
Reviewing Government Decisions
Human Rights and Administrative Law in Queensland
Before Commencing an Administrative Review
Administrative Review of a Government Decision
Administrative law refers to the law to be followed by governments when acting and making decisions.
Administrative law exists in the common law (court-made law) and in the internal policy and legislation that binds government. It refers to the rules and procedures that regulate the conduct of government when undertaking administration, ensuring government applies the law correctly and acts fairly when making decisions.
Central to administrative law are systems of accountability for government decision making. A person adversely affected by a reviewable government decision or action may seek administrative review by:
- following an internal merit review process within the government agency
- making a complaint to an external complaint-handling organisation
- bringing an administrative appeal in an administrative tribunal
- commencing judicial review proceedings in a court.
Each administrative review option has benefits and disadvantages.
Judicial review is the most complex option. It has emerged from common (court-made) law as a set of grounds on which a court may review the administrative actions of government. Judicial review is usually focused on legal errors in the administrative decision-making process rather than the substance or merit of the decision itself. Proceedings must be commenced in the Supreme Court of Queensland or, for Commonwealth matters, in the Federal Court or Federal Circuit and Magistrates Court. Court proceedings for judicial review generally involve considerable expense, carry the risk of a costs order being made against an unsuccessful party, are time consuming and may eventually lead only to the same decision being made again.
In an effort to avoid the necessity for court proceedings, merits (or administrative) review processes have been developed as a review option for some government decisions. Pursued through internal review processes and administrative tribunals, merits review is generally faster, less complicated and carries less of a costs risk than judicial review. The Commonwealth Administrative Appeals Tribunal (AAT) has wide powers to review Commonwealth administrative decisions, while in Queensland the Queensland Civil Appeals Tribunal (QCAT) has jurisdiction to review certain decisions made by Queensland Government administrative officials.
There are also external complaint-handling organisations with oversight over some government decision making, including the Queensland Ombudsman and the Commonwealth Ombudsman. In Queensland, if a person believes that a government department or other public entity has failed to consider their human rights when acting or making a decision, a human-rights complaint may be an additional option alongside any administrative law remedy (see the Human Rights Law in Queensland chapter).