Reviewing Decisions: A Refresher

Councils are given responsibility under various State legislation and local laws to make decisions across a wide variety of subject matter, such as the declaration of dangerous animals, overgrown allotments, refusal of licence applications and the list goes on.

It is inevitable that at some stage a decision will be made against a person who feels so wronged by the decision that they lodge an application for Internal Review requesting Council to review their original decision (“IR application”).

Internal Review is a separate right to administrative action complaints that Councils are required to administer under the Local Government Act 2009.  The right to apply for internal review is a statutory right, as the authorising legislation will specify and provide the process for internal review.

Process for Review

The process for how an internal review arises depends on the legislation that gives rise to the internal review right.

However, broadly speaking, an internal review process follows similar lines to the below:

• An internal review will only be triggered by a person’s right to be given or have received an ‘information notice’.  An owner of a dog who has had a Regulated Dog Declaration made will be entitled to an information notice, however, a witness to a dog attack that is unhappy Council has not regulated a dog would not have the same entitlement.
• An information notice usually requires Council to provide the decision, its reasons for the decision and review rights available to the person.
• 14 to 28 days is often the timeframe provided for the aggrieved person (i.e. the person entitled to receive an information notice) to apply to Council for internal review from the date they are notified of Council’s decision (“the applicant”);
• The applicant is required to apply in writing and provide the grounds upon which they are seeking a review of the decision.
• Once received, Council needs to determine who will be responsible for reviewing the original decision, which will need to be an Officer that was not the original decision-maker and is at least the equivalent, if not more senior in position, than the original decision-maker (“the reviewer”). It is important to ensure that the reviewing officer has the required delegations for the legislation they will be reviewing the decision against.

• Council will usually have between 20 and 28 days to consider the application and either:

1. Confirm the original decision;
2. Amend the original decision; or
3. Substitute another decision for the original decision.

• The reviewer is then required to give the applicant notice of their decision as well as a statement of reasons for their decision. There are often default provisions provided, such that where notice of the reviewed decision has not been given to the applicant, the Council will be deemed to have confirmed the original decision.

Again, the process for an internal review varies depending on the authorising legislation, so local governments must have regard to the legislation dealing with the specific process at hand.

Considerations

The reviewer is required to gather and assess all of the available facts and evidence in relation to the decision.  Remaining impartial when assessing the evidence and ensuring that the principles of natural justice are followed will be critical for the reviewer.

When making the decision, the reviewer is required to:

1. Establish and consider the material facts, that is facts that are supported by the evidence and not based on assumptions or suspicion;
2. Evaluate the evidence by considering its relevance and reliability based on the balance of probabilities. It is important to record all findings of fact and the explanation or reasoning for them;
3. Apply the facts to the relevant legislation, and if required to exercise discretion ensure that all of the relevant matters are properly weighed;
4. Record the decision made and clearly set out the reasons for the decision, even those determined as irrelevant so that the applicant can understand the reasoning that was applied; and
5. Provide the decision and reasons for the decision to the applicant, together with their external review rights.

Summary

Whilst an internal review, properly undertaken, can seem like a waste of time or little reward for a lot of effort, it is often the case that a well-considered review will prevent further resources from being expended through an external review – whether that is to the Queensland Civil and Administrative  Tribunal (“QCAT”), the Supreme Court of Queensland or another Court, Tribunal or body with jurisdiction to externally review Council.

In addition to complying with its obligations, should the matter proceed externally for further review, it puts Council in the best possible position to defend its decision.

Preston Law’s Government Team assists local governments across Queensland to prepare decisions at first instance, responses to internal review applications, and responses to external review applications, across the entire gamut of legislation that local governments are required to administer.

If you have any queries, please contact our Local Government team on (07) 4052 0700.