Most people in Australia seeking to appeal legal rulings go to either an administrative or a judicial appeal. While both are appeals, they differ drastically from one another and the outcome of each is based on different processes, jurisdictions, and results.

This article discusses the main distinctions between administrative and judicial appeals, their roles in Australian litigation, and how they affect legal outcomes.

What is an Administrative Appeal?

An administrative appeal is a process where an independent tribunal or a government agency examines a decision taken by a public authority. These appeals do not usually occur in a court but in an administrative tribunal, for example, the Administrative Appeals Tribunal (AAT).

Important Features of an Administrative Appeal

• Review of Government Decisions – Administrative appeals are concerned with government agency decisions, for instance, visa rejections, social security claims, and tax argumentations.
• Tribunal-Based Process – Rather than a court, the appeal is heard by a tribunal. The AAT, for instance, considers cases regarding Centrelink, NDIS, and migration decisions.
• Flexible Procedures – The appeals procedure is less formal compared to judicial appeals. Legal representation is usually permitted, though self-representation is prevalent.
• Merits Review – The court reviews the case de novo, taking into account new evidence and deciding whether the decision was reasonable and fair.
• No Strict Legal Rules – Administrative appeals are not strictly governed by the rules of evidence applied in court cases.

Examples of Administrative Appeals in Australia

• An individual who has been refused a visa by the Department of Home Affairs can appeal to the AAT Migration & Refugee Division.
• A company objecting to an assessment of tax by the Australian Taxation Office (ATO) can have it reviewed by the AAT Taxation & Commercial Division.
• One who is objecting to a Centrelink decision is able to have it reviewed by the AAT's Social Services & Child Support Division.

What is a Judicial Appeal?

A judicial appeal is a legal procedure in which a court examines a ruling by a lower court, tribunal, or government agency. Judicial appeals differ from administrative appeals in that they are concerned with whether the law was applied properly and not re-hearing the merits of the case.

Major Characteristics of a Judicial Appeal

• Court-Based Procedure – Judicial appeals take place in courts, for example, the Federal Court of Australia or the High Court of Australia.
• Review of Legal Mistakes – The emphasis is on whether there was a legal error in the initial decision, not on reconsidering the facts.
• Formal Legal Procedures – Judicial appeals adhere to formal legal procedures, such as strict evidence requirements and legal arguments.
• Limited Room for New Evidence – In contrast to administrative appeals, judicial appeals do not usually take new evidence into account unless there are exceptional circumstances.
• Binding Decisions – The decision of a judicial appeal is legally binding and creates a precedent in future cases.

Examples of Judicial Appeals in Australia

• Appealing a criminal conviction from the District Court to the Supreme Court.
• Reviewing a decision of the Federal Circuit Court in the Federal Court of Australia.
• Challenging a decision of a tribunal on constitutional grounds in the High Court of Australia.

Key Differences Between Administrative and Judicial Appeals

Feature	Administrative Appeal	Judicial Appeal
Reviewed by	Tribunal (e.g., AAT)	Court (e.g., Federal Court)
Focus	Merits of the decision	Legal errors in the decision
Evidence	New evidence allowed	Limited or no new evidence
Formality	Less formal	Strict legal procedures
Outcome	Decision may be changed	Decision may be upheld, overturned, or remitted
Examples	Visa refusals, Centrelink payments	Criminal convictions, constitutional matters

Which Appeal Process is Right for You?

The choice between an administrative and judicial appeal depends on the nature of your case and the decision being challenged.

• If you are looking for a re-examination of facts, an administrative appeal is generally the preferable option.
• If you feel there was a mistake in law, a judicial appeal is required.
• There may be instances when you need to go through administrative appeal avenues first before attempting a judicial appeal.

Steps in an Administrative Appeal

• Filing the Appeal – Make an appeal with the concerned tribunal, for example, the AAT.
• Review Process – The tribunal examines the decision, can conduct hearings, and takes into account new evidence.
• Outcome – The tribunal can affirm, vary, or set aside the decision.

Steps in a Judicial Appeal

• Filing an Appeal – File an appeal with a superior court.
• Legal Review – The court examines the case on the basis of law arguments.
• Decision – The court can uphold, set aside, or remit the case for redetermination.

External Resources for More Information

• Federal Court of Australia
• Administrative Appeals Tribunal
• Australian Law Reform Commission

Administrative and judicial appeals both have important functions in Australian litigation. Administrative appeals offer an avenue for appealing government decisions on merit, while judicial appeals ensure correctness in law within court judgments. Knowing the difference can assist individuals and companies in selecting the correct legal avenue.

If you need legal advice on lodging an appeal, our expert lawyers can guide you through the process.

Contact New South Lawyers today to discuss your case and secure the best possible outcome.