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“It’s not fair” and other grounds for reviewing compliance decisions

By Julie McStay & Madeline Walsh26 Aug 2015

Government agencies must follow prescribed legislative processes and observe the rules of procedural fairness when exercising delegated powers.  In this article we will explore some of the different avenues for reviewing decisions made by government agencies using practical examples to demonstrate the effectiveness of each approach.

Although the general principles will often apply to decisions made by any government agencies, we will focus on avenues for review in circumstances where the Department of Social Services (Department) has decided to take adverse action against an approved provider.

Reconsideration and internal review of decisions

An approved provider  may request the Secretary of the Department or the Aged Care Pricing Commissioner (as appropriate) to reconsider a reviewable decision if it is listed in paragraph 85-1 of the Aged Care Act 1997 (Cth). Reviewable decisions relevantly include:

  • a decision to revoke an approval as a provider of aged care
  • a decision to impose a sanction on an approved provider
  • a decision to refuse to lift a sanction

The approved provider may make an application for reconsideration by writing to the Department setting out the reasons for their request and raising any issues with the decision-making process or the decision itself. In most circumstances the application must be made within 28 days of receiving the decision.

Generally, the reconsideration will be undertaken by a different Delegate of the Secretary than the Delegate who made the original decision and in some circumstances may be referred to a committee to give advice in relation to a particular issue.

Upon receipt of a request for reconsideration, the Secretary or the Pricing Commissioner must reconsider the decision and within 90 days must:

  • confirm the decision;
  • vary the decision; or
  • set the decision aside and substitute a new decision.

For example, when reviewing a decision to impose Sanctions, it would be open to the Secretary to set the decision aside and substitute a new decision having the effect that the sanctions are no longer imposed and ought never to have been imposed. While this would be a positive outcome for the provider, it would not provide any relief for the loss or damage incurred as a result of the sanctions being imposed on the provider while the decision was under review. If financial relief or an order for costs is sought, an aggrieved person will need to look to another form of review such as administrative review or judicial review. 

Administrative review by the Administrative Appeals Tribunal

Once the Secretary or Pricing Commissioner has confirmed, varied or set aside the decision, an application can be made to the Administrative Appeals Tribunal (Tribunal) within 28 days of receiving notice of the reviewable decision for a review of the decision ‘on the merits’. The Tribunal’s role is to make an administrative decision based on the material before the Tribunal, rather than, as in the case of judicial review, assessing the legality of the original decision.

The Tribunal is required to provide a review process that is fair, just, economical, informal and quick. that the  proceedings are intended to be conducted with as little formality and technicality as the requirements as possible .

When reviewing the decision, the Tribunal will sit in the shoes of the original decision maker and, exercising all of the powers and discretions conferred on the original decision maker, will make a decision:

  • affirming the decision under review;
  • varying the decision under review; or
  • setting aside the decision under review and:
    • substituting a new decision; or
    • remitting the matter for reconsideration along with any directions or recommendations the Tribunal deems appropriate.

Although an applicant may find success by receiving a favourable decision on review, the Tribunal has no power to make an order for costs or financial compensation in favour of a successful party in a matter relating to the Aged Care Act. This limits the effectiveness of the review process for an aggrieved person who is seeking financial relief.

Judicial review

It is possible for an approved provider aggrieved by a decision of the Department to apply for an order of review of a decision under the Judiciary Act 1903 (Cth). An application for judicial review must be made in a court of competent jurisdiction such as the Federal Court of Australia.

Potential grounds for applying for judicial review may include:

  • that procedures required by law to be observed in connection with the making of the decision were not observed:
  • there was no jurisdiction to make the decision, the decision was not authorised by law, and/or there was no evidence or other material to justify the making of the decision:
  • the decision was an improper exercise of the power held by the decision maker in that:
    • the decision was so unreasonable that no reasonable person could have so exercised the power
    • the decision maker failed to take into account relevant information that was available to him/her;
  • a breach of natural justice occurred in association with the making of the decision.

Although court proceedings can be costly and drawn out, judicial review can be the most effective method to pursue because of the broad powers delegated to a Judge exercising judicial functions in a Court. Some of the orders that can be made by a Federal Court Judge include:

  • a declaration or an order that the decision is quashed and set aside, ab initio (ie as if the order had never been made);
  • an order for the unsuccessful party to pay the legal costs of the successful party. 

Although the Federal Court has the power to quash and set aside a decision under judicial review, these types of proceedings are not the appropriate avenue to seek orders for compensation or damages. An aggrieved person seeking financial relief in these forms can bring separate proceedings (usually in the Supreme Court of the relevant State or Territory) for the payment of compensation.

Considering the right forum

When choosing an avenue for seeking review of a decision, some key points for an aggrieved provider to consider include:

  • Is this form of review available in the circumstances? For example, in some circumstances judicial review may not be available unless and until other, more appropriate avenues (ie internal review and review by the Tribunal on the merits) have been exhausted.
  • Can I get the relief I am seeking? While the original decision maker and the Tribunal have the power to set the decision aside and substitute a new decision, only the courts can make an order for payment of costs or damages.
  • How long can I wait for a decision? The Department can take up to 90 days to review a reviewable decision under the Aged Care Act and an aggrieved person must wait to receive the reconsideration decision before pursuing a review by the Tribunal on the merits. If a speedier resolution is sought, it can sometimes be possible to make an urgent application to the Court however expert legal advice should be sought before making any application.

An approved provider who receives a decision that is unfair or unreasonable may wish to consider pursuing an avenue for reconsideration or review of the decision. Depending on the nature of the decision and the rights affected, it may be appropriate to seek legal advice to ensure that you are taking the most appropriate course.

This article provides merely a summary of some of the avenues of review and is not a substitute for legal advice. An approved provider who has been aggrieved by a decision should seek legal advice relevant to their particular circumstances.

If you require legal advice or assistance please contact Julie McStay on 07 3193 0503 or julie.mcstay@hyneslegal.com.au.