There are four main mechanisms for requesting a review of a decision that the APVMA has made, or requesting an investigation of the administrative actions of the APVMA:
- internal merits review, reconsideration
- external merits review
- judicial review – Federal Court
- Ombudsman review
If you do not agree with the decision, you may be able to request an internal reconsideration of the decision in accordance with section 166 of the Agvet Code forming the schedule to the Agricultural and Veterinary Chemicals Code Act 1994. On receipt of a valid request for a reconsideration the APVMA is legally obliged to reconsider its original decision and either confirm, vary, set aside the original decision or make a new decision in substitution for the original decision. The reconsidered decision is considered to be a ‘fresh decision’ and will be made by a person other than the original decision maker.
The new decision maker or reviewer will look at the whole matter, considering all relevant facts (which may include new evidence) any relevant policy and the relevant law. The reviewer may consult the original decision maker and as many relevant parties as is necessary to ensure a comprehensive review of the decision is made. The reviewer will then determine your request for reconsideration having regard to the history of the matter, his/her own enquiries and any new information that you may have submitted in support of your request.
If you think that there has been a misunderstanding that influenced the APVMA’s decision, then before seeking review, consider discussing your concerns with the original decision maker to correct any possible misunderstandings.
What are reviewable decisions?
Reviewable decisions are those decisions made that can be appealed against by people who are affected by the decision. These "reviewable" decisions are listed under section 167 of the Agvet Code (external site).
Who can request reconsideration (review)?
Any person who is entitled to apply under section 167 of the Agvet Code for review of the original decision can request an internal reconsideration of that decision.
Time for requesting reconsideration
The request must be made in writing within 28 days of the date on which a person receives written notice of the original decision.
Administrative Appeals Tribunal (AAT)
Under section 167 of the Agvet Code, many decisions of the APVMA made under the Agvet Codes are reviewable by the AAT. If you do not agree with the decision of the reviewer, you can then apply to the AAT for a review of the decision. The AAT is a completely independent body which can review APVMA decisions on their merits and, where the Tribunal decides it is necessary, substitute its own decision.
It should be noted that an application for review to the AAT does not affect the operation or implementation of the decision. However, a stay or suspension of the decision may be obtained through an order of the reviewing Tribunal. It is advisable to seek your own legal advice in this regard.
An application for review must be in writing, accompanied by the required filing fee and should be lodged within 28 days of receiving the decision. The AAT may affirm, vary or set aside the decision of the reviewer. More information on appealing to the AAT is available from the AAT website www.aat.gov.au (external site).
Judicial review of a decision involves review of the lawfulness of the decision. Grounds of judicial review are varied but typically include things like:
- error of law;
- failure to take into account a relevant consideration; or
- a breach of natural justice.
Failure with respect to these sorts of matters can make a decision unlawful or invalid.
An application for review of a decision to the Federal Court does not affect the operation or implementation of the decision. However, a stay or suspension of the decision may be obtained through an order of the reviewing Court. It is advisable to seek your own legal advice in this regard.
In conducting the review the Federal Court is only concerned with whether the decision made under the Agvet Code was legally correct. The Federal Court can:
- quash a decision;
- refer it back to the decision-maker for further consideration;
- direct the parties to do an act or refrain from doing an act; or
- order a party to make a decision.
More information can be found at www.federalcourt.gov.au (external site).
You can make a complaint to the Ombudsman at any time, however, before doing so it is a good idea to try to resolve the problem with the APVMA as the Ombudsman will not, and in some cases cannot, investigate complaints until they have been raised with the APVMA. The Ombudsman is independent and impartial and can investigate administrative actions of Australian Government agencies. The services of the Commonwealth Ombudsman are free. The Ombudsman may:
- recommend that the APVMA should reconsider or change its action or decision;
- recommend that a law, rule or procedure should be changed; and/or
- take any other action that is appropriate in the circumstances.
The Ombudsman cannot override the decisions of agencies, or compel them to comply with his/her recommendations.
More information about the Office of the Commonwealth Ombudsman can be found at www.ombudsman.gov.au (external site).
Statement of Reasons
Section 28 of the Administrative Appeals Tribunal Act 1975 (Cth) provides that a statement of reasons must be given on request to a person who has a right to apply for merits review of a decision by the Administrative Appeals Tribunal.
A statement of reasons affords a person affected by a decision the opportunity to have the decision explained. You can then decide whether to exercise your rights of review and appeal.
After receipt of a reviewable decision, you may apply to the APVMA for a formal written statement of reasons which will set out the findings, refer to the materials on which those findings were based, and give the reasons for the decision. An application for a statement of reasons must be in writing and should be lodged within 28 days of receiving the decision. The APVMA will provide you with a statement of reasons as soon as practicable and, in any event, within 28 days of receiving your request.There is no charge applicable to a request for a statement of reasons.