8. Judicial review of administrative decisions
The Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) allows a person to apply to the Federal Court or the Federal Circuit Court for judicial review of decisions made by the NDIA under the NDIS Act.
The ADJR Act provides that the Court will review a decision by considering whether the decision-maker has properly made that decision according to the law. This is known as judicial review.
The Court cannot consider whether the decision was the best exercise of the decision maker's discretion. For merits review of NDIA decisions, a person affected by a reviewable decision should consider making a request for internal review.
Persons considering seeking a judicial review are encouraged to seek independent legal advice.
8.1 Decision making according to the law
Under the ADJR Act, a court can conclude that a decision was not made according to law if it is satisfied that any of the following circumstances apply:
- the decision was made in a way that is not procedurally fair;
- the decision-maker did not follow procedures that were required by law when they made the decision;
- the person who purported to make the decision did not have the power to make the decision;
- the decision could not be made under the NDIS Act;
- the decision-maker used the decision-making power in an improper way and not for the purpose intended by the NDIS Act;
- the decision-maker made a mistake about the law that applied to the facts of the case;
- the decision was made or affected by fraud;
- there was no evidence or other material to justify the decision; or
- the decision was otherwise contrary to law (section 5 ADJR Act).
8.2 What orders can the court make?
The court can set aside the NDIA's original decision in whole, or in part, if it is satisfied that the decision was not made according to law. However, the court cannot replace the decision with another decision.
Rather, if the Court sets the NDIA's decision aside, it will return the matter to the NDIA for a new decision to be made, subject to directions, if appropriate.
8.3 What happens to the NDIA's decision whilst a judicial review is being conducted?
The NDIA's decision continues to have effect from the time it is made and is not affected because a person seeks judicial review.
However, a person may seek an order from the court (i.e. a stay order) suspending the operation of the external review decision. The stay order may or may not be granted.