Administrative Decisions Review Act 1997

Two primary classes are affected: administrators and interested persons.

“Administrator” is defined in s 8(1) as the person or body that makes (or is taken to have made) the administratively reviewable decision under the enabling legislation. Section 8(2) deems the person or body expressly identified in the enabling legislation to be the sole administrator even if others participated. Because s 9(3) extends review jurisdiction to decisions made by delegates, acting officers and authorised persons, the net catches a wide range of public servants, statutory office-holders and agency employees. Section 9(4) ensures continuity when the original decision-maker leaves office.

“Interested person” means anyone entitled under the enabling legislation to apply to the Tribunal for review (s 4(1)). This is deliberately tied to the conferring statute so that standing is not created by the ADR Act itself. Consumers, licensees, applicants for benefits, landowners, professionals facing disciplinary action, and businesses affected by regulatory decisions are all typical applicants.

The Act also touches NCAT itself (defined in s 4(1) by reference to the Civil and Administrative Tribunal), the President of the Tribunal, and any person given access to lodged documents under s 58(5). Because s 67 applies provisions of the Civil and Administrative Tribunal Act 2013 (CAT Act) concerning Government Information (Public Access) Act 2009 and privileged documents, information holders and privilege claimants are indirectly regulated. Finally, the broad savings and transitional provisions in Schedule 1 continue to affect parties to legacy proceedings commenced under the former Administrative Decisions Tribunal Act 1997 and the specialist tribunals abolished in 1998.

Duties of administrators

• Give written notice of decision and review rights (s 48(1)).
• Provide a statement of reasons within 28 days of request (s 49(2)), containing the statutory triad of findings of fact, understanding of the law, and reasoning (s 49(3)).
• Conduct an internal review when properly applied for (s 53), by an officer who was not substantially involved, is suitably qualified and is from the same agency (s 53(3)). The reviewer may affirm, vary or set aside and substitute (s 53(5)) and is taken to exercise the administrator’s full statutory functions (s 53(5A)).
• Lodge reasons, internal-review statement and relevant documents with the Tribunal within 28 days (s 58(1)), or within a shorter or longer period ordered by the Tribunal or President (s 58(3)).
• Comply with any guidelines prescribed under s 54.

Rights of interested persons

• Receive notice and reasons (ss 48, 49).
• Apply for internal review within 28 days (or longer if allowed) (s 53(2)(d)).
• Apply to the Tribunal once internal review is finalised (s 55(3)), or earlier in the limited circumstances set out in s 55(4) or (6).
• Seek a stay or other interim order (s 60(2)).
• Obtain access to documents lodged under s 58 (s 58(5)) and, in appropriate cases, copies instead of summonses (s 58(6)).
• Receive a decision that is the “correct and preferable” one on all material then before the Tribunal (s 63(1)).

Tribunal powers
The Tribunal’s jurisdiction is entirely derivative (s 9). Once seized, it may make stay orders (s 60), order further reasons (s 52), determine entitlement to reasons (s 51), remit for reconsideration at any stage (s 65), and exercise all functions of the administrator (s 63(2)). It must apply relevant Government policy unless contrary to law or productive of injustice (s 64(1)).

The only offence created by the Act itself is improper disclosure of information obtained in the exercise of functions under the ADR Act, the CAT Act or enabling legislation (s 69). The maximum penalty is 100 penalty units for a corporation and 50 penalty units or 12 months’ imprisonment (or both) for an individual. Proceedings are dealt with summarily before the Local Court (s 70).

Breach of the notice obligation in s 48(3) does not invalidate the underlying decision, preserving administrative certainty. Failure to provide reasons within time can be met by a Tribunal order under s 52(1). Inadequate reasons can be cured by order under s 52(2). Contempt-type sanctions are not created by the ADR Act; enforcement occurs through the CAT Act’s contempt powers (applied indirectly) or through ordinary judicial review where the Tribunal’s own orders are ignored.

Regulations may create additional offences carrying up to 10 penalty units (s 71(2)). No civil cause of action for damages arises from breach of the Act’s procedural requirements.

The ADR Act is expressly parasitic on “enabling legislation” (defined in s 4(1)). Jurisdiction exists only if that legislation authorises applications to the Tribunal for administrative review (s 9(1)). Section 9(5) prohibits conferral of jurisdiction by statutory rule unless an Act expressly authorises it.

The Act is inextricably linked with the Civil and Administrative Tribunal Act 2013. Section 4(1) defines “Tribunal”, “President” and “procedural rules” by reference to the CAT Act. Sections 58(7), 59(2) and 67 apply CAT Act ss 64, 66 and 67 (GIPA Act effect and privileged documents). Procedural rules for lodgment and service are made under the CAT Act (s 68). Fees are prescribed under the CAT Act (note to s 55(2)).

The ADR Act interacts with the Government Information (Public Access) Act 2009 through the applied provisions in s 67. It displaces or supplements merits-review routes in older statutes; the 1997 and 1998 amendments abolished the Boxing Appeals Tribunal, Community Services Appeals Tribunal, Equal Opportunity Tribunal, Legal Services Tribunal, Schools Appeals Tribunal and Veterinary Surgeons Disciplinary Tribunal, routing their jurisdictions through the (then) ADT and now NCAT.

Section 6(3)–(5) deem decisions made without power, refusals based on perceived lack of power, and deemed refusals through lapse of time to be decisions “made under” the enabling legislation, thereby preserving review rights that might otherwise be lost at common law. Section 64 requires the Tribunal to apply Government policy, creating a direct interface with executive policy instruments.

The most significant recent change was effected by the Civil and Administrative Tribunal Legislation Amendment Act 2013 (No 94). That Act renamed the statute from the Administrative Decisions Tribunal Act 1997 to the Administrative Decisions Review Act 1997, repealed the bulk of the tribunal-constitution and procedural chapters (former Chapters 2, 4 and 5), substituted new objects (s 3), redefined “administratively reviewable decision”, “administrator”, “decision” and “Tribunal”, and inserted the current Part 3 (Role of the Tribunal). The changes were required to dismantle the standalone ADT and fold its merits-review functions into the new unified Civil and Administrative Tribunal. The 2013 amendments also aligned time limits, document-lodgment obligations and stay criteria with the CAT Act’s overarching procedural philosophy.

Subsequent minor amendments have refined time periods (e.g. s 53), clarified the status of internal-review decisions (s 53(8)), and updated cross-references. The long Schedule 1 has been repeatedly expanded to deal with transitional issues arising from the successive repeal of specialist tribunals and the 2013 NCAT reforms. These changes were driven by the policy objective of reducing tribunal fragmentation, lowering costs, and creating a single point of contact for administrative review in New South Wales.

Because the ADR Act is procedural, most litigation has concerned the limits of its interaction with enabling legislation. Courts have examined whether particular decisions fall within the statutory definition of “administratively reviewable decision” (s 7) and whether conduct (as opposed to a formal decision) can be reviewed (s 7(2) and the Privacy and Personal Information Protection Act 1998 example). The breadth of the s 6 definition of “decision” has been tested in cases involving deemed refusals and decisions claimed to be a nullity; s 6(3) expressly brings decisions made beyond power within review jurisdiction, avoiding the common-law difficulties that once attended jurisdictional error.

Controversy has surrounded the compulsory internal-review precondition (s 55(3)). The Tribunal’s discretion under s 55(4) to dispense with internal review where the agency has unreasonably refused a late application or where the applicant’s interests require immediate protection has generated satellite litigation about what constitutes “reasonable time” and “unreasonable refusal”. Stay-order jurisprudence under s 60 has produced debate about the weight to be given to the public interest and to the administrator’s submissions (s 60(3)), especially in licensing and planning matters where third-party interests are engaged.

The obligation to apply Government policy (s 64) has been criticised for potentially fettering the Tribunal’s merits-review function. Certificates issued by the Premier or a Minister under s 64(2) are conclusive evidence, raising rule-of-law concerns when policy is opaque or hastily made. In practice, however, the “unjust decision” exception in s 64(1) has operated as a safety valve.

Confidentiality and non-publication orders under the applied CAT Act provisions (s 67) have been contested in disciplinary and child-protection matters. The offence in s 69 has rarely been prosecuted, but its existence influences how agencies handle sensitive material lodged under s 58.

Most practitioners assume that every government decision is reviewable; it is not. Jurisdiction exists only if the enabling legislation expressly or impliedly confers it (s 9(1)). Many older statutes still contain outdated references to the former ADT or to rights of appeal to courts that have been extinguished by the transitional provisions in Schedule 1.

Internal review is not optional if the applicant was entitled to it (s 55(3)). However, the Tribunal’s power to excuse non-compliance (s 55(4)–(6)) is discretionary and fact-sensitive; late applications for internal review that are refused on reasonable grounds will usually bar the Tribunal route. The 28-day lodgment period for documents under s 58(1) is strict but can be shortened or extended by the Tribunal or President on hardship grounds (s 58(3)). Administrators frequently overlook the obligation to lodge the internal-review statement of reasons (s 58(1)(a1)), which can lead to adjournment applications and costs orders.

Section 53(5A) gives the internal reviewer the full statutory powers of the original administrator. This is often missed; a reviewer can therefore impose harsher conditions or withdraw a benefit entirely, exposing applicants to “review risk”.

The stay power (s 60) is not automatic and requires an express application. Tribunals are increasingly reluctant to grant unconditional stays in revenue or licensing cases where collection or public protection is at stake. The “correct and preferable decision” test in s 63(1) is not confined to the material that was before the administrator; fresh evidence is routinely admitted, which can surprise agencies that treat the Tribunal as a mere appeal court.

Finally, the broad savings provisions in Schedule 1 continue to trap the unwary. A decision made by an abolished tribunal before 1998 may still be treated as an “appealable decision” of the Tribunal for the purposes of the old appeal pathways (cll 14A, 14(2A)). Transitional clauses from the 2000 revenue amendments, the 2004 appeal-abolition amendments and the 2008 and 2013 reforms must be checked in any matter with a long decision history.

For administrators

1. Maintain an up-to-date register of decisions that are reviewable under each item of enabling legislation.
2. Draft standard-form notices that satisfy s 48(1) and any guidelines made under s 54.
3. Implement internal procedures ensuring that the internal reviewer meets the independence and qualification criteria in s 53(3).
4. Prepare reasons statements that address the three mandatory elements in s 49(3); boilerplate will be held inadequate under s 52(3).
5. Create a document-management protocol that can identify and copy every relevant document within 28 days (or the period ordered under s 58(3)).
6. Train decision-makers on the breadth of the s 6 definition, especially deemed refusals and decisions beyond power.
7. When policy is relevant, obtain and file the Premier’s or Minister’s certificate under s 64(2) at the earliest opportunity.

For applicants and their advisers

1. Identify the exact enabling legislation and the precise provision that confers review rights; cite it in every application.
2. Apply for internal review within 28 days of notification or receipt of reasons (s 53(2)(d)); keep records of posting or lodgment.
3. If reasons are refused or not supplied, consider a prompt application under s 51 or s 52 rather than risking a late Tribunal application.
4. When seeking a stay, file affidavit evidence addressing each of the s 60(3) factors (interests of affected persons, administrator’s submissions, public interest).
5. Request all s 58 documents immediately upon lodgment and scrutinise them for gaps; consider a Tribunal direction under s 58(4) for additional classes of documents.
6. In the substantive hearing, lead any fresh evidence that bears on the “correct and preferable” outcome; the Tribunal is not limited to the original record.
7. Monitor Government policy changes; be ready to argue that a policy produces an unjust result in the particular circumstances (s 64(1)).

Compliance is best achieved by treating the ADR Act as a statutory code that displaces general administrative-law assumptions. Early identification of the enabling legislation, meticulous attention to time limits, and proactive document management remain the three practical pillars that separate successful from unsuccessful participants in the review process.