Posted on August 22, 2019 by Sophia Urlich and Carlo Zoppo

Can the NCAT review your decision? – The jurisdiction of the NCAT explained

In White v Sutherland Shire Council [2019] NSWCATAD 100 (‘White‘), Senior Member Isenberg dismissed an application for administrative review because she could not identify any legislation relevant to the Applicant’s complaints that would confer jurisdiction on the NSW Civil and Administrative Tribunal (‘NCAT‘).

While the facts in this decision are unremarkable, the decision helpfully reminds us how the NCAT’s jurisdiction to carry out administrative review is limited by matters identified in enabling legislation that expressly confers jurisdiction on the NCAT.

In relation to the NCAT’s administrative review jurisdiction, the Senior Member explained that ‘in order to determine whether the Tribunal has jurisdiction to review a particular decision, reference must be made to the legislation governing the original decision’, since section 30 of the Civil and Administrative Tribunal Act 2003 provides that the NCAT only has jurisdiction if a legislative instrument confers jurisdiction on the NCAT.

The Senior Member also clarified that, while many pieces of legislation provide jurisdiction to the NCAT, a piece of legislation may not provide jurisdiction for the administrative review of every type of decision that is made under it.

For example, section 16 of the Deer Act 2006, referred to by the Applicant in White, only provides for review by the NCAT of a particular type of decision made under that Act, that is, ‘the decision of an authorised officer to give, amend or revoke a compliance direction under [Part 3]’.

The key take away from this otherwise unremarkable decision is that the legislation that creates the NCAT does not provide the NCAT with jurisdiction to carry out the administrative review of any decision.  The power to carry out administrative review arises from the enabling legislation which governs the making of the original decision.

Therefore, to fully understand what decisions the NCAT can review, you should carefully consider the enabling legislation.

For example:

  • the Government Information (Public Access) Act 2009 (‘GIPA Act‘) covers a number of decisions that may be subject to administrative review by the NCAT, but it does not authorise the NCAT to review whether a search undertaken by a Council or other agency was a proper search for the purposes of the GIPA Act or a decision that a document is outside the scope of an application,
  • the Local Government Act 1993 does not authorise the NCAT  to review a decision of a Council to discipline a Councillor, but it does authorise the NCAT to review a decision of the Office of Local Government (see s440L),
  • the Local Land Services Act 2003 (‘LLS Act‘) provides the NCAT with jurisdiction to review a number of exercises of power under the LLS Act but does not provide the NCAT with jurisdiction to review the impounding of stock pursuant to s116(3) (see Dubow v Mid-Western Regional Council [2019] NSWCATAD 142)

The White case can be viewed here.

If you have any questions on the jurisdiction of the NCAT  or any administrative law matter please contact Carlo Zoppo, Partner on 8235 9705 or carlo.zoppo@lindsaytaylorlawyers.com.au