Regulatory Decisions and Review


Within any regulatory framework there is the option as to a review of any administrative decision, whether that be by way of internal review by the regulatory agency which made the decision or other options.

Merits Review: Internal

As can be appreciated in terms of internal review, unless there is compelling evidence or differential information provided, it is usual practice for internal reviews to confirm the original decision. To do otherwise would actually show that the decision maker in the first instance within the regulatory entity may have been less than diligent in the initial decision. While there is an expectation as to fairness, ethical consideration and good governance, in many instances these issues do not provide for what the person requesting the review would see as impartial intervention.

Merits Reviews: Tribunal and the Courts

Within the Australian context, there are merit reviews available through appropriate administrative legislation, whether that be under the Administrative Appeals Tribunal Act (AAT) or the Administrative Decisions (Judicial Review) Act (ADJR). Within the former, there are specific limitations to merit reviews based upon what has been determined as being decisions of regulatory entities that fall within the AAT jurisdiction. There is however, the wider application for administrative review under the ADJR.

In both of these Acts, there are provisions for requesting Reasons for Decision which are legally binding.

Ombudsman

There is however another alternative, depending on the circumstances, in relation to a review of the decision and/or compensation for any administrative decisions which may result in loss. In this regard, the CBFCA was indeed fortunate at its recent Continuing Professional Development sessions in Melbourne, Sydney and Brisbane to hear the Commonwealth Ombudsman on this issue.

These sessions addressed with delegates complaints and other issues related to compensation applicable under the Compensation for Detriment caused by Defective Administration Scheme (CDDA). In Sydney, Ombudsman representative Mr Roberts advised that the CDDA allows the Ombudsman to compensate persons if they have been adversely affected by a defective administration and where no legal liability exists. Payments made under the CDDA are discretionary and can be made where it is considered that there is a moral obligation to do so, rather than a legal liability.

Compensation is not payable for grief, anxiety, hurt, humiliation, embarrassment, or disappointment that is unrelated to personal injury, no matter how intense the emotion might be.

In order for a claim to be successful under the CDDA, the Ombudsman (decision maker) must be satisfied that:
  • there was defective administrations
  • the loss or detriment suffered was a direct result of defective administration
  • the type of detriment suffered by you must have been reasonably foreseeables.

Defective administration is defined as any of the following:
  • a specific and unreasonable lapse in complying with existing administrative procedures
  • an unreasonable failure to institute appropriate administrative procedures
  • giving advice to (or for) an applicant that was, in all the circumstances, incorrect or ambiguous
  • an unreasonable failure to give to (or for) an applicant, the proper advice that was within the official's power and knowledge to give (or reasonably capable of being obtained by the official to give).

The overarching principle of the CDDA is to restore persons to the position they would have been in had the defective administration not occurred (any claim under the CCDA is by way of form 1459).

In his presentation, Mr Roberts commented that the Ombudsman is conducting an Own Motion investigation of the Australian Border Force (ABF) which will address specific legislative powers under the Customs Act in relation to the ABF processing of international freight.

On such issues, the CBFCA is aware that several members have used the Ombudsman as to claims in relation to defective administration, particularly in relation to Container Examination Facility process management.

The CBFCA looks forward to the outcomes of the Ombudsman review on the ABF.