Frequently Asked Questions
You need to check the relevant legislation in your State and Territory, as the rules are different in each jurisdiction.
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What is the importance of public law?
- In a democracy such as Australia a robust system of public law is considered important for a number of reasons:
- even with few resources private citizens can challenge a government decision;
- if a department or agency is regularly getting things wrong this can come to light quickly; and
- government entities must act diligently and professionally or face potential administrative law action.
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Should I use a lawyer to challenge government decisions?
- Many administrative law processes such as reviews and appeals are specifically designed to be used by non-represented individuals.
- In the spirit of reducing costs for all involved public law is underpinned by accessible review processes.
- These can include simple forms, plain language and user guides for lodging your application. It is often suitable in these cases to begin the process yourself.
- In some cases the subject matter will be more complex and the way to challenge a decision is hard to figure out. In these cases seeking out an experienced administrative lawyer might be the more prudent option.
- Our LegalPlan™ membership will allow you to ask lawyers for a Fixed Fee Quote on your matter.
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What does the ‘merits v law’ distinction mean?
- There is an historical distinction between ‘facts,’ ‘merits’ and ‘law’ within administrative law.
- In a merits review the decision maker will reconsider all of the evidence and the law that was available to the original decision maker to determine whether the original decision maker made the best decision under the circumstances. This kind of review is often most appropriate at an early stage such as a request for internal review or an initial review by a tribunal when a secondary decision maker will put themselves ‘in the shoes’ of the original decision maker to determine whether they ‘got it right.’
- A review on an issue of law means that you claim the decision maker did not follow the correct legal procedure, did not apply the law correctly or did not apply the right law to the evidence. This is often called a judicial review. Courts and appeal boards of tribunals usually allow an appeal on an issue of law to proceed automatically.
- You may need to seek leave (permission) to appeal the merits of a decision at these later stages. Because the decision has already been made afresh by more than one decision maker who had access to all the evidence and often had the advantage of seeing witnesses give evidence in person the higher courts will be reluctant to disturb their findings.
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Should I make a constitutional challenge when the government gets it wrong?
- There are not many cases where a private citizen could realistically use constitutional law to have a specific government decision altered. Although popular culture may make it appear as though grievances can be effectively tackled in this way in general such an approach would not be advised.
- Administrative law is specifically designed to help citizens gain justice in relation to public decisions and omissions. It has the capacity to provide the right outcome for all complaints, issues and actions.
- Constitutional law would only become relevant after considerable judicial scrutiny of very particular legal issues in the lower courts.
- You will also need to prove that you have standing (an appropriate legal interest) which entitles you to bring the challenge to the court.
- If you do decide to challenge the government’s actions as unconstitutional you must be prepared for an extremely complex, expensive and time-consuming process.
- You can use our free and anonymous Ask a Lawyer service if you have a particular issue you want to know more about.
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Are there lots of complicated forms to complete?
- The administrative law system in Australia is designed to be very accessible. As part of this departments and other bodies are obliged to make their review and appeal processes simple.
- Generally only one form will need to be completed to commence a review or appeal and you can ask the organisation to provide one or access the form on their website.
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Do I have to stand up in a tribunal room?
- The answer to this question varies depending upon the subject matter and the level of formality that attaches to a specific tribunal.
- Higher-level tribunals can be quite similar to a court. Your lawyer can advise you on appropriate ways to address members of the tribunal as well as the right times to stand and sit. If you are not represented being told “all rise” as members enter or being informed that the Principle Member (the most senior member) is also a judge will provide an indication that proceedings are quite formal. As a basic rule you should stand whenever you are addressed by any member and when the members are entering or leaving.
- Less formal and lower level tribunals might not require any standing at all. You might be led into a room and offered a chair at a table. If you are with your lawyer be guided by her or him as to where you should sit.
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Will the court be as relaxed as the tribunal was?
- Generally no. Once a matter has escalated to judicial review you and the government body will be appearing in a regular court complete with all of the formality required by that forum.
- Depending upon the subject matter and legislation under which your original decision was made, your judicial review hearing might be heard by a District, Supreme, Federal Magistrate’s Court or Federal Court.
- Each has different protocols and hearing requirements that a lawyer can assist in explaining.
- You can use our Phone a Lawyer service to get a preliminary consultation about your situation.
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Will the decision-maker be there?
- In administrative law processes such as merits review hearings it is not common to have the original decision-maker there.
- This can be due to a number of factors.
- As part of the overall push by governments to reduce costs a decision is often made by the reviewing body to simply hear your side of the story and compare this to the written decision. Having an officer take time to attend each review would ultimately lead to higher costs for all.
- Also many departments elect to have their side of the story represented simply by what is on your decision file. This will usually include all submitted material, their decision notes, the relevant law and the actual decision.
- In a way the department is saying “this file is our entire case. There is no more to add.” You will be given a copy and have your chance to comment upon all aspects of the government’s submitted materials.
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