Administrative Law

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Administrative law is the area of law governing the decision making process of government bodies such as the NSW Board of Studies, Fair Trading, the Commissioner of Stamp Duties or the ATO.

While it is in some cases possible to challenge an administrative decision through a higher court through the process of “judicial review”, parliament has for the most part set out a process for reviewing administrative decisions within the legislation which is often faster and more cost efficient than court action.

The process is commonly known as “merits review”. Often the relevant decision is of a type such as an application for a contractors licence from Fair Trading, an assessment of stamp duty from the Office of State Revenue or tax from the ATO. The decision maker is weighing up their opinion of the facts and applying the law as they see it. A “merits review” is asking someone else to look at the facts (even if they have changed) and make the decision again, hopefully in a way that satisfies the applicant.

Commonly there is a provision for a first step “internal review” to have the decision reviewed by another person within the government department. Secondly, if the affected person is still dissatisfied with the decision, there is a provision for the decision to be reviewed by an administrative tribunal. For decisions of the NSW government this tribunal is NCAT. For decisions of the Commonwealth government this tribunal is the AAT.

Given the capacity to challenge a decision is set out in the legislation it is crucial that any application for review comply with the legislative requirements. This often includes strict time limits or the form in which the application is to be made.

While tribunals are not court and often run a little more informally, they still have reasonably strict requirements for matters such as serving of evidence and submissions. You should get legal advice on how to put your best application forward.