Voice

Every day government departments and other public bodies make decisions affecting the private lives of residents. A typical example is the licensing decision. Laws regulate many activities in the public interest through licensing. You need a licence for instance to drive a car, to operate a restaurant, or to sell liquor. If a licence is refused or revoked it can seriously affect a person's ability to earn a living.

Suppose a government department makes a decision refusing or revoking a licence. What can you do to challenge the decision?

This tape deals with means of redress which are different from those in Tape No. 1 although there is some overlap in relation to rights of appeal to the Administrative Appeals Board and other boards or tribunals.

The first thing to do is to find out what the powers of the decision-maker were and whether he has acted within them. This means looking at the relevant legislation and seeing what steps had to be taken by the decision maker before he could lawfully make the decision. If he has missed out steps or used a procedure not authorized by the legislation it is possible that the decision could be overturned.

Some ordinances create rights of appeal. Sometimes these are to a specialist appeal body or tribunal or to the Administrative Appeals Board. These bodies can reverse the decision.

Sometimes there is a right of appeal to a specialist board or tribunal and then a further right of appeal to the Court of First Instance. The Court of First Instance will be able to reverse decisions made lower down but sometimes can only do so on a point of law arising in the case, such as the meaning to be given to words in a piece of legislation. That means it cannot re-open questions of fact that have already been decided by the decision-maker.

If there is no right of appeal there is still the possibility of judicial review. This means applying to the Court of First Instance and asking the court to examine closely not the decision but the way in which the decision was made to see if the decision-making process was carried out on a proper legal basis. This area of the law can be quite technical but the Court of First Instance looks out for the following kinds of points: -

(a) Was the person who made the decision acting within the power given to him under the relevant law?

(b) If the law that conferred the power to make the decision is a by-law or some other subsidiary legislation made by a body other than Legco, is the law a valid law?

(c) Did the decision-maker have some personal interest in the subject matter of the decision or did he pre-judge the case so that it could be said that he was biased?

(d) Did the decision maker give the person affected a chance to put forward their best case so that he knew what the objections were and had a chance to deal with them?

If the Court of First Instance finds that the decision-making process was unfair or unlawful it will generally quash the decision and require the decision-maker to make the decision again and act according to law on the next occasion. The Court of First Instance cannot, however, make the fresh decision itself because it is a court of review and not a court of appeal.

Date of amendment: 22nd February 2013