The kinds of injustices that may occur in the context of the work of an administrative decision-maker are numerous. Most of them are unforeseen. And some administrative decisions have not yet happened. In recent time, it appears (aggrieved) parties are getting on the front foot prematurely bringing merits reviews applications against an administrator in anticipation of there being a decision made which may have a legal consequence to them in the future. How do you avoid being subject of a merits review?
Most government administrative decision makers have a thankless job where there is little or no appreciation of the time and effort put into doing their job (it is a jungle out there) which includes making administrative decisions that some people will not like.
Administrative law has now developed to a point where it is accepted that there are a few main bases for review of administrative actions.
A “merits review” allows a Court to consider the merits of the issue and, at the same time, substitute its decision for the decision under review.
I don’t wish to explore each legal base for review of an administrative decision today but instead provide you with a practical checklist of what you as an administrative decision-maker should consider (to help get you out of the jungle) to avoid being put in the position of a merits review. The checklist (is not exhaustive):
- You should bring any matters adverse to party to its attention for comment before any adverse decision.
- You should not make a decision having regard to undisclosed material that was credible, relevant and significant to the decision without putting it first to the party.
- You should bring to a party’s attention the critical issue or factor on which a decision is likely to turn so they have an opportunity to address/rectify it.
- You should not make promises to a party which you cannot keep because a failure to keep the promise may result in some unfairness in the procedure.
- You should continue to comply with your regular practice unless the proposed change is first put to any likely affected party and an opportunity is given for that party to respond is allowed.
Further, when making an administrative decision, amongst other things, you should consider the reasonableness (and proportionality) of it. This can difficult to see or differentiate. Reasonableness covers a wider field than proportionality. Indeed, a measure might be proportionate, but its adoption is unreasonable because for example there was no notification to the party or a lack of consultation.
This blog is not intended to be substituted for legal advice, it would be distinctly unwise to rely upon it as it is for general information purposes only. Should you wish to obtain legal advice, please do not hesitate to contact Philip Cowdery, Partner on (02) 92935462 or [email protected]