Administrative Decisions Review Act 1997 (NSW)

Administrative Decisions Review Act 1997 No 76 An Act to provide for the administrative review by the Civil and Administrative Tribunal of certain decisions of administrators; and for other purposes. Chapter 1 Preliminary 1 Name of Act This Act is the Administrative Decisions Review Act 1997. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Objects of Act The objects of this Act are as follows: (a) to provide a preliminary process for the internal review of administratively reviewable decisions before the administrative review of such decisions by the Tribunal under this Act, (b) to require administrators making administratively reviewable decisions to notify persons of decisions affecting them and of any review rights they might have and to provide reasons for decisions of administrators on request, (c) to foster an atmosphere in which administrative review by the Tribunal is viewed positively as a means of enhancing the delivery of services and programs, (d) to promote and effect compliance by administrators with legislation enacted by Parliament for the benefit of the citizens of New South Wales. 4 Definitions (1) In this Act: administrative review jurisdiction of the Tribunal—see section 9. administratively reviewable decision—see section 7. administrator—see section 8. decision—see section 6. enabling legislation means legislation (other than this Act or any statutory rules made under this Act) that: (a) provides for applications to be made to the Tribunal with respect to a specified matter or class of matters, or (b) otherwise enables the Tribunal to exercise functions with respect to a specified matter or class of matters. function includes a power, authority or duty, and exercise a function includes perform a duty. interested person means a person who is entitled under enabling legislation to make an application to the Tribunal for an administrative review under this Act of an administratively reviewable decision. internal review means an internal review conducted under section 53. legislation means an Act or a statutory rule. lodge a document includes file a document. President means the President of the Tribunal. procedural rules has the same meaning as in the Civil and Administrative Tribunal Act 2013. Tribunal means the Civil and Administrative Tribunal. (2) A reference in this Act to the exercise by the Tribunal of its functions in relation to enabling legislation includes a reference both to its functions under the enabling legislation and its functions under this Act in relation to the enabling legislation. (3) A reference (however described) in this Act to a decision made under enabling legislation is taken, in relation to an administratively reviewable decision, to include a reference to any decision made in the exercise of functions identified by the enabling legislation. (4) Notes included in this Act do not form part of this Act. 5 (Repealed) 6 Meaning of "decision" (1) General meaning A decision includes any of the following: (a) making, suspending, revoking or refusing to make an order or determination, (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission, (c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument, (d) imposing a condition or restriction, (e) making a declaration, demand or requirement, (f) retaining, or refusing to deliver up, an article, (g) doing or refusing to do any other act or thing. (2) Decision made under enabling legislation For the purposes of this Act, a decision is made under enabling legislation if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under the enabling legislation. (3) Decisions made without power For the purposes of this Act (and without limiting subsection (2)), a decision that purports to be made under enabling legislation is taken to be a decision made under the enabling legislation even if the decision was beyond the power of the decision-maker to make it. (4) Failure to make decision on basis that beyond power For the purposes of this Act (and without limiting subsection (2)), a refusal of a decision-maker to make a decision under enabling legislation because the decision-maker considers that the decision concerned cannot lawfully be made under the enabling legislation is taken to be a decision made under the enabling legislation to refuse to make the decision requested. (5) Failure to make a timely decision taken to be failure to make a decision For the purposes of this Act, a failure by a decision-maker to make a decision within the period specified by the enabling legislation concerned for making the decision is taken to be a decision by the decision-maker at the end of the period to refuse to make the decision. Chapter 2 Administrative review jurisdiction of Tribunal 7 Meaning of "administratively reviewable decision" (1) An administratively reviewable decision is a decision of an administrator over which the Tribunal has administrative review jurisdiction. (2) For the avoidance of doubt (and without limiting subsection (1) or section 6): (a) the conduct of an administrator (or a refusal by an administrator to engage in conduct) is an administratively reviewable decision if enabling legislation identifies that conduct or refusal as conduct or refusal over which the Tribunal has administrative review jurisdiction, and (b) in its application to any such conduct or refusal by an administrator, any reference in this Act (however expressed) to an administrator making an administratively reviewable decision includes a reference to an administrator engaging or refusing to engage in the conduct. Note— The jurisdiction conferred on the Tribunal by section 55 of the Privacy and Personal Information Protection Act 1998 is an example of administrative review jurisdiction of the Tribunal over conduct. 8 Meaning of "administrator" (1) An administrator, in relation to an administratively reviewable decision, is the person or body that makes (or is taken to have made) the decision under enabling legislation. Note— There are a number of circumstances in which a person or body is taken to have made a decision. See, for example, subsection (2) and sections 6 (2)–(5) and 9 (3) and (4). (2) The person or body specified by enabling legislation as a person or body whose decisions are administratively reviewable decisions is taken to be the only administrator in relation to the making of an administratively reviewable decision even if some other person or body also had a role in the making of the decision. 9 When administrative review jurisdiction is conferred (1) The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator: (a) in the exercise of functions conferred or imposed by or under the legislation, or (b) in the exercise of any other functions of the administrator identified by the legislation. (2) If enabling legislation makes provision for applications to be made to the Tribunal in respect of an administratively reviewable decision subject to certain conditions, the Tribunal has jurisdiction under the enabling legislation only if those conditions are satisfied. (3) A provision of enabling legislation that provides for a decision of an administrator to be administratively reviewable by the Tribunal under this Act extends to the following: (a) a decision made by a person to whom the function of making the decision has been delegated, (b) if the provision specifies the administrator by reference to the holding of a particular office or appointment—a decision by any person for the time being acting in, or performing any of the duties of, the office or appointment, (c) a decision made by any other person authorised to exercise the function of making the decision. (4) If an administrator makes an administratively reviewable decision by reason of holding or performing the duties of an office or appointment and then ceases to hold or perform the duties of the office or appointment, this Act has effect as if the decision had been made by: (a) the person for the time being holding or performing the duties of that office or appointment, or (b) if there is no person for the time being holding or performing the duties of that office or appointment or the office no longer exists—such person as the President (or another person authorised by the President) specifies. (5) Nothing in this section permits administrative review jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act. 10–46 (Repealed) Chapter 3 Process for administrative reviews under this Act Part 1 47 (Repealed) Part 2 Role of administrators Division 1 Information concerning decision and review rights 48 Notice of decision and review rights to be given by administrators (1) An administrator who makes an administratively reviewable decision must take such steps as are reasonable in the circumstances to give any interested person notice, in writing, of the following: (a) the decision, and (b) the right of the person to have the decision reviewed. (2) However, an administrator does not have to give a notice under subsection (1) in relation to: (a) a decision that is taken by this or any other Act to be made because the administrator has failed to make a decision within the time limit for making the decision, or (b) any of the following decisions, but only if the decision concerned does not adversely affect the interests of any interested person: (i) a decision not to impose a liability, penalty or any kind of limitation on a person, (ii) a decision making an adjustment to the level of periodic payments to be made to a person as a member of a class of persons where a similar adjustment is being made to the level of such payments to the other members of the class, (iii) if legislation establishes several categories of entitlement to a monetary or other benefit—a decision that determines a person to be in the most favourable of those categories, or (c) a decision made by an administrator following an internal review, or (d) any other decision or class of decisions prescribed by the regulations for the purposes of this paragraph. (3) A contravention of this section does not affect the validity of any decision. Division 2 Duty to give reasons on request 49 Duty of administrator to give reasons on request (1) If an administrator makes an administratively reviewable decision, an interested person may make a written request to the administrator for the reasons for the decision. (2) As soon as practicable (and in any event within 28 days) after receiving such a request, the administrator is to prepare a written statement of reasons for the decision and provide it to the person who requested the reasons. (3) The statement of reasons is to set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the administrator's understanding of the applicable law, (c) the reasoning processes that led the administrator to the conclusions the administrator made. (4) The regulations may: (a) exclude any class of administratively reviewable decisions from the application of this section, or (b) alter the period within which a statement of reasons under this section must be given. 50 Administrator may refuse reasons in certain cases (1) An administrator may refuse to prepare and provide a statement of reasons requested by a person under this Division if: (a) the administrator is of the opinion that the person is not entitled to be given the statement, or (b) in the case of a decision the terms of which were recorded in writing and set out in a document that was provided to the person—the request was not made within 28 days after the person was provided with the document, or (c) in any other case—the request was not made within a reasonable time after the decision was made. (2) An administrator who refuses under subsection (1) to prepare and provide a statement of reasons must notify the person requesting the statement, in writing, of the administrator's refusal and the reasons for the refusal as soon as practicable (and in any event within 28 days) after the request. (3) The administrator is not to refuse to prepare and provide a statement of reasons if: (a) in the case of a refusal based on subsection (1) (a)—the Tribunal declares, on an application made under section 51 (1), that the person who made the request was entitled to make the request, or (b) in the case of a refusal based on subsection (1) (c)—the Tribunal declares, on an application made under section 51 (2), that the person who made the request did so within a reasonable time. (4) If an administrator cannot refuse to comply with a request for a statement of reasons because of a decision of the Tribunal referred to in subsection (3), the administrator must prepare the written statement of reasons that was originally requested and provide it to the person who requested it as soon as practicable (and in any event within 28 days) after the Tribunal's decision. 51 Tribunal may determine whether person entitled to reasons or made request within reasonable time (1) The Tribunal may, on the application of a person who has been refused a statement of reasons under section 50 (1) (a), make an order declaring that the person was, or was not, entitled to make the request to which the notice relates. (2) The Tribunal may, on the application of a person who has been refused a statement of reasons under section 50 (1) (c) on the basis that the person did not make the request within a reasonable time, make an order declaring that the person did make the request within a reasonable time. 52 Tribunal may order administrator to provide a statement of reasons or an adequate statement of reasons (1) If an interested person has requested a statement of reasons under section 49 but has not received it within the period specified by or under that section, the Tribunal may (on the application of the person) order the administrator concerned to provide the statement of reasons within such time as may be specified in the order. (2) If an interested person who requested a statement of reasons under section 49 is given an inadequate statement of reasons, the Tribunal may (on the application of the person) order the administrator concerned to provide an adequate statement of reasons within such time as may be specified in the order. (3) For the purposes of this section, a statement of reasons is an adequate statement of reasons only if it sets out the matters referred to in section 49 (3). Division 3 Internal reviews 53 Internal reviews (1) Who may apply for an internal review If an administrator makes an administratively reviewable decision, an interested person may apply for an internal review of that decision under this section. (2) Requirements for an application An application for an internal review is: (a) to be in writing, and (b) to be addressed to the administrator concerned, and (c) to specify an address in Australia to which a notice under subsection (6) may be sent, and (d) to be lodged at the office (or an office) of the administrator within 28 days (or such later date as the administrator may allow) after the person: (i) if the person has requested reasons under section 49—was provided with a statement of reasons under section 49 or notified under section 50 of a refusal to provide reasons, or (ii) if the person has not requested reasons under section 49—was notified of the making of the administratively reviewable decision, and (e) to comply with such other requirements as may be prescribed by the regulations in respect of the making of applications for internal reviews. (3) Who is to deal with an application? An application for an internal review of a decision is to be dealt with by an individual (other than the administrator) who is directed to do so by the administrator (the internal reviewer). The internal reviewer directed to deal with an application must be, as far as is practicable, an individual: (a) who was not substantially involved in the process of making the decision under review, and (b) who is an employee of the administrator or is an employee of the same agency or organisation within which the administrator is employed, and (c) who is otherwise suitably qualified to deal with the issues raised by the application. (4) Material to be considered In reviewing a decision, the internal reviewer is to consider any relevant material submitted by the applicant. (5) Review of the application Following the internal review of the decision, the internal reviewer may: (a) affirm the decision, or (b) vary the decision, or (c) set aside the decision and make a decision in substitution for the decision that is set aside. (5A) Reviewer has functions of administrator In exercising a function under subsection (5), an internal reviewer is taken for all purposes to have the right to exercise the same functions under any relevant legislation or other law that the administrator had in making the decision being reviewed. (5B) Reviewer to notify administrator of decision An internal reviewer must notify the administrator of the result of, and the reasons for, his or her decision under subsection (5) as soon as is practicable after making the decision. (6) Notice of result of review and appeal rights Within 21 days after the application for the internal review is lodged (or such other period as the administrator and person agree on), the administrator must notify the applicant in writing of: (a) the outcome of the internal review, and (b) the reasons for the decision in the internal review, and (c) the right of the person to have the decision reviewed by the Tribunal. (7) Statement of reasons For the purposes of subsection (6), an applicant is notified of the reasons for a decision in an internal review only if the applicant is given a statement of reasons setting out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the understanding of the internal reviewer of the applicable law, (c) the reasoning processes that led the internal reviewer to the conclusions the reviewer made. (8) Status of decisions made on internal review For the purposes of this Act, an administratively reviewable decision that is affirmed, varied or set aside and substituted under subsection (5) is: (a) taken to have been made by the administrator (as affirmed, varied or substituted by the internal reviewer), and (b) taken to have been made on the date on which the applicant is given a notice under subsection (6). (9) When an internal review is finalised An internal review is taken to be finalised if: (a) the applicant is notified of the outcome of the review under subsection (6), or (b) the applicant is not notified of the outcome of the review within 21 days after the application for the review is lodged (or such other period as the administrator and person agree on). Note— Section 55 provides that an interested person may apply for an administrative review under this Act of an administratively reviewable decision once an internal review of the decision is taken to be finalised under this subsection. (10) No internal reviews of decisions previously reviewed under this section A person is not entitled to a review under this section of any decision previously reviewed under this section or a decision made under subsection (5). (11) Regulation-making powers The regulations may: (a) prescribe requirements to be observed in relation to the conduct of an internal review under this section, or (b) exclude any class of administratively reviewable decisions from the application of this section, or (c) alter the period within which an internal review must be conducted or a notice given under this section. Division 4 Guidelines 54 Guidelines for notices, reasons and internal reviews (1) The regulations may prescribe guidelines with respect to any of the following: (a) the giving of notices for the purposes of Division 1, (b) the giving of reasons under Division 2, (c) the conduct of internal reviews under Division 3. (2) A person, in taking action under this Part, must have regard to any such guidelines as are then in force. Part 3 Role of the Tribunal Division 1 Applications for administrative review 55 Making of applications (1) An application for an administrative review under this Act of an administratively reviewable decision may only be made by an interested person. (2) Subject to enabling legislation, an application is to be made in the time and manner prescribed by the procedural rules. Note— The fees payable for applications are also prescribed by the regulations under the Civil and Administrative Tribunal Act 2013. (3) If the interested person was entitled to seek an internal review of the administratively reviewable decision, an application may not be made unless the person has duly applied for such an internal review and the review is taken to have been finalised under section 53 (9). (4) However, the Tribunal may deal with an application for the administrative review of an administratively reviewable decision even though the applicant has not duly applied for an internal review to which the applicant was entitled if the Tribunal is satisfied that: (a) the applicant made a late application for the internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned, or (b) it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned. (5) In determining whether a late application for internal review was unreasonably refused or whether an application to the Tribunal was made within a reasonable time for the purposes of subsection (4), the Tribunal is to have regard to: (a) the time when the applicant became aware of the making of the decision, and (b) in a case to which subsection (4) (a) applies—the period prescribed by or under section 53 for the lodging of an application for an internal review, and (c) such other matters as it considers relevant. (6) The Tribunal may also deal with an application even though the applicant has duly applied for an internal review of the decision to which the application relates, and the review is not finalised, if the Tribunal is satisfied that it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests. 56, 57 (Repealed) 58 Duty of administrator to lodge material documents with Tribunal where decision reviewed (1) An administrator whose administratively reviewable decision is the subject of an application for review to the Tribunal must, within 28 days after receiving notice of the application, lodge with the Tribunal: (a) a copy of any statement of reasons given to the applicant under section 49 (or, if no such statement was given to the applicant, a statement of reasons setting out the matters referred to in section 49 (3)), and (a1) a copy of any statement of reasons for a decision in an internal review conducted in respect of the administratively reviewable decision, and (b) a copy of every document or part of a document that is in the possession, or under the control, of the administrator that the administrator considers to be relevant to the determination of the application by the Tribunal. (2) If the applicant has not been given a statement of reasons under section 49, the Tribunal may direct that a copy of the statement of reasons lodged with the Tribunal under subsection (1) (a) be given to the applicant within such period or periods as the Tribunal directs. (3) If the Tribunal or President considers that a party to the proceedings would or might suffer hardship if the period of 28 days provided by subsection (1) is not shortened or extended, the Tribunal or President may, at the request of the party, make an order directing that the copies referred to in that subsection be lodged with the Tribunal within such shorter or extended period as is specified in the order. (4) If the Tribunal or President considers that other particular documents (or that other documents included in a particular class of documents) may be relevant to the determination of the application, it may cause a notice in writing to be served on the administrator: (a) stating that the Tribunal or President is of that opinion, and (b) directing the administrator concerned to lodge with the Tribunal, before a date specified in the notice, a copy of each of those other documents that is in the possession, or under the control, of the administrator. (5) The principal registrar of the Tribunal is to grant reasonable access to the applicant in the proceedings to any copy of a document lodged under this section by an administrator. Reasonable access includes, but is not limited to, enabling the applicant to make a photocopy of a document during ordinary business hours. (6) If a party to proceedings before the Tribunal seeks a summons under the Civil and Administrative Tribunal Act 2013 against an administrator for the production of any document and a copy of that document has been lodged with the Tribunal under subsection (1) or (4), the Tribunal may (on such conditions as it considers appropriate) direct the principal registrar of the Tribunal to grant the party access to its copy of the document instead of issuing a summons if access to the document could lawfully be required by the issue of a summons. (7) Nothing in this section requires the disclosure of, or the granting of access to, any document (or a copy of a document) in contravention of any of the following: (a) an order made under section 59 (Objections to lodgment), (b) an order made under section 64 (Tribunal may restrict disclosures concerning procedures) of the Civil and Administrative Tribunal Act 2013, (c) section 66 (Effect of Government Information (Public Access) Act 2009) or section 67 (Privileged documents) of the Civil and Administrative Tribunal Act 2013 (as applied by section 67 of this Act). (8) For the purposes of this section, a reference to a document in the possession of an administrator includes a reference to a document to which the administrator has an immediate right of access. 59 Objections to lodgment (1) An administrator may apply to the Tribunal before the expiry of the period referred to in section 58 (1) for an order that the administrator not be required to lodge a copy of a document under section 58. (2) On any such application, the Tribunal may make an order that a copy of a document not be lodged with the Tribunal if: (a) it is satisfied that section 67 (Privileged documents) of the Civil and Administrative Tribunal Act 2013 (as applied by section 67 of this Act) operates so as not to require the disclosure of the document, or (b) it considers that, if an application were made under section 64 (Tribunal may restrict disclosures concerning procedures) of the Civil and Administrative Tribunal Act 2013, it would be appropriate to make an order under that section prohibiting or restricting the publication or disclosure of evidence of the document. Division 2 Effect of pending applications on administratively reviewable decisions 60 Operation and implementation of decisions pending applications for administrative review (1) Subject to this section, an application to the Tribunal for an administrative review under this Act of an administratively reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision. (2) On the application of any party to proceedings for an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application. (3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account: (a) the interests of any persons who may be affected by the determination of the application, and (b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and (c) the public interest. (4) While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order. 61 Restrictions on ordering stay of proceedings (1) The Tribunal may not: (a) make an order under section 60 unless the administrator who made the decision to which such an order would relate has been given a reasonable opportunity to make submissions in relation to the matter, or (b) make an order varying or revoking an order in force under section 60 (including an order as varied) unless the following persons have been given a reasonable opportunity to make submissions in relation to the matter: (i) the administrator who made the decision to which such an order would relate, (ii) the person who requested the making of the order, (iii) if the order has previously been varied by an order or orders under section 60—the person or persons who requested the making of the only, or the later or latest, such order. (2) This section does not prevent the Tribunal from making an order under section 60 without giving to any person referred to in that section a reasonable opportunity to make submissions in relation to a matter if the Tribunal is satisfied that, because of the urgency of the case or otherwise, it is not practicable to give the person such an opportunity. (3) If an order under this section is made without giving such an opportunity to the administrator who made the decision to which the application relates, the order does not take effect until a notice setting out the terms of the order is served on the administrator. 62 Conditions of stay order (1) An