Administrative Decisions Review Act 1997

This Act is the Administrative Decisions Review Act 1997.

This Act commences on a day or days to be appointed by proclamation.

The objects of this Act are as follows:

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,

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,

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,

to promote and effect compliance by administrators with legislation enacted by Parliament for the benefit of the citizens of New South Wales.

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:

provides for applications to be made to the Tribunal with respect to a specified matter or class of matters, or

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.

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.

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.

Notes included in this Act do not form part of this Act.

General meaning A decision includes any of the following:

making, suspending, revoking or refusing to make an order or determination,

giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission,

issuing, suspending, revoking or refusing to issue a licence, authority or other instrument,

imposing a condition or restriction,

making a declaration, demand or requirement,

retaining, or refusing to deliver up, an article,

doing or refusing to do any other act or thing.

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.

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.

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.

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.

An administratively reviewable decision is a decision of an administrator over which the Tribunal has administrative review jurisdiction.

For the avoidance of doubt (and without limiting subsection (1) or section 6):

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

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.

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).

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.

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:

in the exercise of functions conferred or imposed by or under the legislation, or

in the exercise of any other functions of the administrator identified by the legislation.

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.

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 decision made by a person to whom the function of making the decision has been delegated,

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,

a decision made by any other person authorised to exercise the function of making the decision.

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:

the person for the time being holding or performing the duties of that office or appointment, or

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.

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.

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:

the decision, and

the right of the person to have the decision reviewed.

However, an administrator does not have to give a notice under subsection (1) in relation to:

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

any of the following decisions, but only if the decision concerned does not adversely affect the interests of any interested person:

a decision not to impose a liability, penalty or any kind of limitation on a person,

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,

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

a decision made by an administrator following an internal review, or

any other decision or class of decisions prescribed by the regulations for the purposes of this paragraph.

A contravention of this section does not affect the validity of any decision.

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.

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.

The statement of reasons is to set out the following:

the findings on material questions of fact, referring to the evidence or other material on which those findings were based,

the administrator’s understanding of the applicable law,

the reasoning processes that led the administrator to the conclusions the administrator made.

The regulations may:

exclude any class of administratively reviewable decisions from the application of this section, or

alter the period within which a statement of reasons under this section must be given.

An administrator may refuse to prepare and provide a statement of reasons requested by a person under this Division if:

the administrator is of the opinion that the person is not entitled to be given the statement, or

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

in any other case—the request was not made within a reasonable time after the decision was made.

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.

The administrator is not to refuse to prepare and provide a statement of reasons if:

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

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.

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.