Administrative law may sound like a legal area that’s far removed from the average person’s experience, but the reality is that issues in this field can affect a wide range of people.
What is administrative law?
Administrative law concerns decisions made by government bodies – for example statutory bodies, government departments, or any other type of agency that is run by a local, State or Federal government – and how these decisions affect individuals like you.
For example, administrative law decisions can include:
- A Centrelink decision to cancel or refuse pension payments, leaving a person without adequate means to pay their living and medical expenses.
- A refusal to renew a professional registration, leaving a person without the ability to earn an income.
- A Centrelink decision to recoup Family Tax Benefit payments, causing financial hardship.
- A Department of Immigration decision to refuse to grant a visa to a skilled worker who has already secured employment in Australia.
- A Department of Immigration decision to cancel a student visa for a person who is part-way through a university degree.
Administrative law is based on the principle of accountability – it is a way of making government bodies accountable for their actions and decisions. It is an important way to give the public access to information about government decisions that affect them.
How does it work?
The way that administrative law functions will vary from body to body, because most have their own laws. But in essence, the basic steps are:
- A government body makes a decision that affects a person and the decision is reviewable. The person is unhappy about the decision.
- After going through internal review processes, the person remains unhappy about the final decision.
- The person applies for a merits review of the decision
- The reviewing body makes a decision.
- If the person is still unhappy, they may apply to a court for a further review.
- The court makes a decision.
Types of reviews
There are two types of review in administrative law: merits review and judicial review. A merits review is a review of the entire decision. It allows the person to present new evidence and material. This form of review is often conducted by a Tribunal, however in South Australia some administrative decisions can be reviewed by a Court. A Tribunal is a less formal setting than a court.
On the other hand judicial review is much more complex and can only be initiated on very limited grounds. Judicial reviews are conducted by courts and they have strict formal procedures.
Why do I need a lawyer?
The merits review system is designed to allow applicants to represent themselves, but there are many traps. Using a lawyer who is experienced in administrative law provides you with a great advantage.
An administrative lawyer:
- Will understand the strict timelines for making an application and ensure that they are met. Out-of-time applications are difficult and not meeting the time limits may prevent you from pursuing a review of a decision.
- Knows the process that applies for the particular government body in question so that the correct review procedures are followed.
- Will know the system so well that any potential errors are minimised. This will also minimise your legal costs and give your application a greater chance of success.
- Can provide you with adequate representation at the hearing, especially because government bodies are usually represented by experienced solicitors and/or barristers at the hearings.
- Will understand how decisions have been made in the past and so can ensure that your application meets those precedents, or if it can’t, will ensure that you understand all the risks and options available to you.
What do I do next?
If you believe that a government body has made a wrong decision that affects you, the first step is to speak to a lawyer with administrative law experience who has an excellent understanding of the relevant laws.