If you are unhappy with a government decision you can look for a solution within either administrative law or constitutional law. Administrative law is the more common avenue generally involved where an individual seeks to solve a particular problem with a government agency. Constitutional law involves broader disputes about the powers and rights that can be found within the Australian Constitution.

Both administrative law and constitutional law form part of a larger body of law called ‘public law’. This area of law concerns relationships between governments and citizens. It can be contrasted with private law which generally resolves issues between private entities such as a person and a business and between individuals.

Administrative law matters in Australia generally include social security decisions, migration issues, mental health reviews, workers’ compensation and taxation decisions. If a government department, agency or public officer makes a wrong decision or fails to make a decision on an application you have made there is scope for you to have this situation reviewed under administrative law.

In Australia reforms to administrative law in the 1970s meant that methods for challenging government were more clearly set out. A number of avenues of review were created including:

• tribunals;
• conciliators;
• ombudsmen; and
• commissioners.

How to effectively take a problem with government decision-making to court (or seek ‘judicial review’) was specifically dealt with in a dedicated piece of legislation (written law) called the Administrative Decision (Judicial Review) Act 1975 (Cth) – the ‘ADJR Act’.

When there is a possibility that a government agency simply got the facts wrong in your case a ‘merits review’ process will generally apply. This means that a different decision-maker within the same government body (internal review) or a new entity (external review) will review the facts of the case in light of the relevant law. It is these merits or facts of your case that you want to have looked at again. Where the government body actually got the law wrong or made the decision in a way that was legally incorrect this matter could be appropriate for hearing by the courts via ‘judicial review.’

‘Win’ or ‘lose’ are not the only outcomes that can flow from an administrative law process. For example a debt payable to the government might not change yet late penalties might be waived. In many pieces of law that control review and appeal processes an option to ‘vary’ the decision will be given. This gives the person examining the decision the option to change part rather than all of the decision. Administrative law is different from many areas of the law in this way. The best possible outcome under the law is sought rather than a ‘winner’ and ‘loser.’

Constitutional law can sometimes be thought of as ‘big issue’ public law as it tends to look at broad issues such as problems between states or external affairs issues. Yet there is still scope for higher courts to look at ‘people’ problems such as bad government decisions and individual rights. The Constitution allows for judicial review by the High Court. This means the High Court has the power to declare legislation (laws) introduced by the government unconstitutional and therefore invalid.

This Legal Guide on Administrative and Constitutional Law provides those upset by government decisions with information about administrative review processes and constitutional law. Before making important decisions it is advisable to obtain legal advice specific to your situation. LegalEagle’s™ free directory profiles all lawyers in Australia. You can use it to Find a Lawyer near you.

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Warning: Information provided through LegalEagle™ is for general guidance. It is not legal advice. Laws and procedures referred to may change and differ between states, territories and nationally. There may also be important exceptions or qualifications. Only a lawyer providing formal legal advice can assess your particular circumstances to determine how the law will apply.