Are government decisions reviewable?

by The FindLaw Team

Some Federal and State government bodies have mechanisms where a person may make an inquiry as to how that body came to the decision affecting the individual. If you wish to find out why the relevant body came up with its decision, and whether there was an error, there are a number of options available which this piece will explore.

Is there an automatic right to provide reasons for a decision?

Although there is no general right for reasons to be provided for a decision made by a government officer, there are certain circumstances in which legislation dictates that reasons are to be provided for a decision. Two examples where reasons are to be provided can include legislation related to the local government or environmental planning at a state level, and freedom of information legislation for federal decisions.

Are there any instances where a decision can be reviewed?

A person may make an application to some of the following government bodies for reasons behind a decision. The government bodies are:

  • the federal Administrative Appeals Tribunal;
  • the Federal Court
  • State civil and administrative tribunals.

Generally speaking, a person wishing for reasons to be provided must do so within 28 days upon receiving a decision, and the decision-maker should provide a reply within 28 days.

When replying, the decision-maker should include some of the following information:

  • the findings on questions of facts;
  • reference to the evidence on which the findings were based upon;
  • the reasons for the decision.

Exemptions

Under Schedule 2 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), exempts certain types of decisions from being disclosed. In conjunction with the aforementioned Act, and the Administrative Appeals Tribunal Act 1975 (Cth), the Attorney-General may issue a certificate that states certain matters cannot be disclosed because it is contrary to the public interest, and can include:

  • any disclosure that can harm Australia’s security, defence or international relations;
  • any disclosure may reveal Cabinet deliberations or decisions;
  • where privilege may be claimed in relation to judicial proceedings.

What if there are no Acts that allows for review?

If there are no Acts authorising a review of a decision, and there is no obligation to provide reasons, the only possible options left is to seek access to the relevant government files, and documents via the Freedom of Information Act 1982 (Cth) in relation to Commonwealth Government decisions, or the relevant State instrument, or via the courts by means of the discovery process.

It should be noted that even if the above mechanisms are used by an individual in trying to ascertain the reasons for a decision, the government may still refuse the claim by stating that protection of the public interest overrides the individual’s in relation to the relevant documents.   

 

 



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