Reviewing Government Decisions

It sounds obvious, but government can only make a decision it is authorised to make. Sometimes a decision will be made that actually exceeds government power. If this happens, the decision was unlawful.

Whenever we act for a client affected by a government decision, we examine:

1. What exactly is the decision that has been made?
2. What power did the decision-maker rely on to make the decision?
3. Was the decision-maker authorised to make the decision using the power they relied on?

Laws require governments to provide notice of the decision and the reasons for it. This is a fundamental aspect of administrative law. A party must be told about:

1. The decision made;
2. The power relied on to make the decision; and
3. The facts the decision-maker relied on in reaching their decision.

Depending on who has made the decision, if a party does not get adequate reasons, they can ask the decision-maker to provide a statement of reasons. If the decision-maker does not provide a statement of reasons, an application may be made to a Court for an order compelling a statement of reasons to be given.

It is easy to see why adequate reasons must be given. A party cannot know whether or not they can challenge the decision unless they know why it was made. The requirement to provide reasons is an incident of procedural fairness. A failure to provide procedural fairness may make the decision unlawful.

There are several types of review available:

1. An internal review, where another government decision-maker remakes
   the decision. The reviewer must have regard to all the evidence that the initial decision-maker had, plus any new evidence provided. The reviewer is not looking at whether the initial decision-maker made the correct decision. Rather, they are remaking the decision.
2. A merits review at a Tribunal. This is where an Administrative Tribunal (eg Administrative Appeals Tribunal, ACT Civil and Administrative Tribunal), remake the decision. The Tribunal must have regard to all the evidence that the initial decision-maker had, plus any new evidence provided. They are not looking at whether the initial decision-maker made the correct decision. Rather, they are remaking the decision.
3. A judicial review at a Court. Unlike in an internal or merits review, the Court does not take new evidence. Rather, they examine the decision and consider whether it was lawfully made.

In most cases, an internal review must be conducted before a merits review at a Tribunal can be attempted. Also, a judicial review will not be permitted if an internal or merits review can be chosen first.

A good way of overturning a decision is to show it was unlawful. There are various reasons why a decision will be unlawful, including:

1. The decision-maker exceeded their power;
2. The person who made the decision did not have the power to do so (known as delegated authority);
3. The decision-maker failed to take into account a relevant consideration (such as something required by law);
4. The decision-maker took into account an irrelevant consideration (relied on evidence not relevant under the legal test);
5. There was no evidence to justify the decision;
6. The decision made was so unreasonable that no reasonable decision-maker would have made it; or
7. The decision-maker failed to afford procedural fairness or natural justice.

You can’t fake facts. The stronger evidence you have, the better chances of success.

What evidence you need will depend on what the decision involves. For example, if an application for registration as a nurse or working with vulnerable people was denied on the basis of poor character, get character references and tackle head on the concerns raised about bad character.

The sources of evidence we commonly obtain are:

1. A witness statement for our client addressing the specific issues in the dispute.
2. An expert report, which may deal with a medical condition or discuss evidence relied on by the decision-maker.
3. Documentary evidence, such as government documents. For example, we can change the validity of a decision by using the government’s own records to show a decision was unlawful.