Last updated 20 May 2022
Administrative law includes systems of accountability for government decision making. It incorporates merits review and administrative appeal, judicial review, and external review by complaint-handling organisations such as the Queensland Ombudsman, the Commonwealth Ombudsman and the Queensland Human Rights Commission (QHRC).
What follows is a summary of administrative law avenues of redress under Queensland and Commonwealth law. For further information see the following chapters:
- merits review (see Complaints against Government—Administrative Appeals)
- judicial review (see Complaints against Government—Judicial Review)
- external complaint organisations (see Complaints to the Ombudsman, Complaints against Police and Public Officials and Human Rights Law in Queensland).
Legislation has simplified the task of obtaining merits review, administrative appeals and judicial review of government decisions and actions.
Internal merits review and administrative appeal avenues are contained within the governing legislation and policy of the government department and tribunal with administrative appeal jurisdiction. For guidance on accessing relevant rules and legislation see ‘Before commencing an administrative law action’ below.
The Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) and Regulation confer administrative review jurisdiction on the Queensland Civil and Administrative Tribunal (QCAT) in relation to a wide range of government decision making. Similarly, the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) empowers the Administrative Appeals Tribunal (AAT) to review decisions by way of administrative appeal.
The Judicial Review Act 1991 (Qld) (Judicial Review Act) brings together existing common law grounds for judicial review. The Commonwealth equivalent is the Administrative Decisions (Judicial Review) Act 1977 (Cth) (Administrative Decisions Act). The Commonwealth and state judicial review Acts contain grounds upon which decisions can be reviewed, as well as remedies that can be ordered by the courts.
Merits review including administrative appeal
All types of administrative and judicial review are concerned with legal errors in the decision-making process, but not all types of review will also look at the merit or substance of the decision. Merits review is concerned with both, the merit and any legal errors of an administrative decision, and it involves a rehearing of the issues. A merit review, whether through an internal merit review or an administrative appeal to a tribunal, considers what the correct or preferable decision is on the facts of the case. A successful merits review may result in a fresh decision being made.
Administrative tribunals, including QCAT and the AAT, have been established to test decisions against the requirements of good government. Administrative appeal is a form of merits review undertaken by tribunals.
Administrative appeals reconsider the merits of an administrative action or decision (i.e. whether it was the ‘correct or preferable decision on the facts of the case’). The tribunal member will stand in the shoes of the original decision maker, exercising the same powers and discretion as the Act or Regulation gave the decision maker.
A successful administrative appeal may result in the tribunal member remaking the decision and substituting its own decision for that of the original decision maker. This is another difference between a merits review and a judicial review, A judicial review usually does not include the power to substitute the decision.
In Queensland, QCAT has jurisdiction to undertake merits review of certain decisions by way of administrative appeal (called a ‘review of administrative decision’ in that jurisdiction).
Under the QCAT Act, in most cases, each party bears their own costs of the administrative appeal so there is only a low risk of being ordered to pay the legal costs of the successful other party if an application is unsuccessful.
The AAT has wide powers to review Commonwealth administrative decisions. Like QCAT, the AAT is a low-costs jurisdiction, with the tribunal only able to make a costs order against an applicant in limited circumstances.
Applicants often self-represent in merits review proceedings in both QCAT and the AAT, although the right to representation is upheld in the AAT and usually also in QCAT if an applicant wishes to be represented by their own lawyer.
Judicial review is quite different from an administrative appeal. Judicial review examines the power or jurisdiction to make a decision or to take action, and whether the decision was made without any legal errors in the process. It is not concerned with the merits of the decision (i.e. whether it was the correct or preferable decision).
Judicial review involves a court reviewing an administrative action by government, and deciding whether the decision maker has breached grounds of judicial review (e.g. whether the decision maker took relevant considerations into account, whether the decision was affected by bias and whether the rules of natural justice were followed).
Judicial review will only be successful if the decision maker can be shown to have breached one or more of the relevant statutory grounds for review or common-law principles governing administrative functions. The Judicial Review Act and Administrative Decisions Act legislate the statutory grounds for judicial review in the Queensland and Commonwealth jurisdictions. Except in the most exceptional circumstances, courts exercising judicial review are not concerned with the merits of the decision.
When a judicial review application is successful, the court will usually set aside the particular action or decision, and order the decision maker to reconsider their decision according to law. Judicial review laws do not normally permit the court to substitute the decision with what it considers to be the correct or preferable decision. If overturned, the decision must be returned to the original decision maker. The decision maker may then reach exactly the same decision the second time around, but this time in accordance with the correct legal procedures, or they may reach a different decision.
A person wishing to obtain judicial review of a state government action in Queensland must bring proceedings in the Supreme Court. The Federal Court and Federal Circuit and Family Court of Australia can hear judicial review applications about decisions made by Commonwealth Government under the Administrative Decisions Act.
Applications for judicial review involve complicated legal questions, and it is very difficult to achieve a successful outcome without experienced legal representation. A successful applicant for judicial review will usually have their costs paid by the losing party. An unsuccessful applicant may be ordered to pay the costs of the successful other party, as well as having to pay their own costs.
External complaint organisations
External complaint-handling organisations such as the Commonwealth Ombudsman, the Queensland Ombudsman and the QHRC have statutory mechanisms to receive and investigate complaints about some administrative actions of government.
The Queensland Ombudsman may investigate complaints about Queensland state government departments, agencies and local councils. Government decision makers in Queensland are also required to apply human rights when acting and making decisions, and aggrieved individuals may complain to the QHRC. The Commonwealth Ombudsman’s function is to receive and investigate complaints about administrative matters under Commonwealth law.
Complaints processes are generally free, and complainants do not require legal representation.
However, whilst such organisations may investigate, recommend and, in some cases, mediate a complaint, unlike a court or tribunal their decisions are not generally binding unless the parties agree, nor are they appealable.