ADMINISTRATIVE REVIEW

O N T H E M E R I T S

Internal Review
Original decision maker
Formal or informal internal review

specialist tribunals e g SSAT

member of Parliament

External Review
Administrative Appeals Tribunal (CTH)

Administrative Decisions Tribunal (NSW)

Member of Parliament
Free Can make representations to Ministers responsible

for government departments

Cant intervene once a matter is before the courts.

original decision maker

Government departments often reported to have

inadequate complaint handling service

intermediary.

Neutralise.often better to act through an

Ford..advantages (LDL 232)

Cost Speed Discretionary powers of administrator often wide love thy decision maker as thyself

Internal Review
Often not referred to in the Enactment itself.

Internal review may be a pre-requisite to judicial review or external review.

May need your clients file.Freedom of Information application may be

required

More review stages, possibly someone along the way will say yes A good solicitor is practical first and legalistic second: friendly negotiation

and a little psychology brought to bear on the bureaucracy will solve a hundred times more cases than you will ever win by securing a place for your client in the law reports. (233)

Intimidation factor

Formal Internal Review

Merits

Relatively informal
Institutionalised..form of quality control; client appeasement; dealing with

high volume decision making

Crekyke (p234) re Formal review :

Reduction of applications for external review= cost saving Need to do more than simply review the material used by the first decision maker Evaluate system Are there systemic defects? Defects in Policy? Procedural problems? Internal review varies from department to department Large caseload areas, internal review has been institutionalized. Independence an issue Relatively successful.eg Social Security 30-40% give a decision favourable to the applicant Relatively quick Note Administrative Decisions Tribunal Act 1997 (NSW) , s53: institutionalisation of internal review

External Review: Specialist review

Cheaper

Faster
Less formal Often can not only review decisions but also remake

the decision. Criticism re Tribunals is the diversity

Administrative Appeals Tribunal

Caseload includes : veterans entitlements compensation income support taxation small claims Immigration , FOI and customs and excise

AAT caseload
Most cases are resolved without a final hearing

2003-4; 24% withdrawn or dismissed5% decision affirmed by consent; 33% decision set aside by consent;; 12% decision was varied by consent and in less than 1% was it sent back to the decision maker by consent
Final hearing (22% of cases)2003-412% upheld original decision; 6% set aside decsion;2% dismissed for non-appearance Few successful appeals to the Federal Court

AAT -Structure and Procedure

President= Federal Court Judge; hold office until

70 or ceases to be a judge Presidential members = judges; 70 or cease to be a judge Deputy Presidents= legal practitioners with 5 years + experience; 7 year term Senior Members and members= appointed by the GG; 7 year term Constitutional Problems? See Drake v Minister for Immigration and Ethnic Affairs (1976)

Jurisdiction
No general power to review administrative decisions.

Only decisions that are reviewable by legislative

provision.eg Social Security Act ; Migration Act 400 + enactments S25(6), Tribunals jurisdiction may be modified by the enactment allowing review

Decisions not appropriate for merits reviewARC

Nature of the decision:
Eg preliminary or procedural decisions Decisions of a law enforcement nature; Policy decisions of a highly political nature

Nature of the effect of the decision:

Eg decisions to delegate a power or appoint a person to perform a specific function; Recommendations to the ultimate decision maker

Costs of review:
Eg decisions with limited impact ; Where extensive enquiry has been involved

Decisions NOT appropriate for EXCLUDING merits review

Nature of the decision :

Eg Decisions made in reference to government policy; Decisions affecting national sovereignty or the prerogative power

Nature of the decision maker:

Expert decision makers High status decision makers

Effect of the decision:

Eg publication of reports; Large numbers may apply for review; Potential for judicial review

Jurisdiction
Can the AAT review a decision that was beyond the power

of the original decision maker?

Automotive Pty Ltd (1979)

See Collector of Customs( NSW) v Brain Lawlor

Federal Court Bowen CJ : can review a decision even where a decision maker has purported to make a decision beyond their power. There is nothing unusual in holding that an administrative decision which is legally ineffective or void is susceptible of appeal see 255 of text Smithers J : taking a liberal construction of sections 25 and 26 of the AAt Act held that decisions are reviewable which are made by an administrator in purported or assumed pursuance of the relevant statutory provision. See 256 of the text

Standing
S27 (1).a person affected by the decision.
S27(2)organisation whether or not

incorporatedobjects or purpose of the organisation

S31: decision by AAT that a person has standing is

conclusive. However, the Federal Court has held judicial review is available

Accessibility
Application must be in writing

decision of whatever it was, made...on whatever day it wasthat

would do, see Re Knight and Comcare (1994)

28 days

Cost.introduction of a filing fee (approx. $770 +

indexation.regulations )

Interpreters? Procedural complexity

Procedure
S33(1)as little formality and technicality and

expeditiously as possible

Probative evidence; see Re Kevin and Minister for Capital

Territory

Procedural fairness S43 (1) may exercise the powers of the original maker.

Government policy? See Drake v Minister for Immigration

and Ethnic Affairs

Security Appeals Division

ss 39A and 39B of the AAT Act

Secrecy when determining adverse security

assessments . Also has jurisdiction now to review preventative detention orders under counter-terrorism laws. Problems?