This is a single section from Chapter 28. Read the full chapter here.

Will the legislation provide for a process of internal review?

In some circumstances the legislation should also include a prior process of internal review of the merits of a decision. Internal reviews are an effective way of identifying and correcting mistakes without the cost and publicity that an appeal to an external body or judicial review may attract. However, they are not a substitute for considering whether or not a right of appeal is appropriate.

Internal reviews are particularly appropriate where there are lots of decisions being made that involve findings of fact and an internal review process will ensure quality and consistency of decision-making across multiple decision-makers (for example, decisions on benefits). Other circumstances that may make a process of internal review appropriate are when the decisions are likely to be delegated or where there are financial or other impediments to accessing review of the decisions through the courts.

Internal review involves empowering a person or body within the department to review a decision after receiving a complaint. The legislation can provide for and set out the procedure for the internal review, any criteria to be applied to the review, and any limits on the scope of the review.[1] Often, legislation will require a person to first apply for an internal review before appealing to an external body. This gives the opportunity to correct any mistakes without formal proceedings.

Providing internal review procedures in legislation has the advantage of providing certainty and transparency for those procedures, but many bodies operate internal review procedures without legislative provision and those advantages should be balanced against any risk that the procedures will become out-of-date.

[1] Many of the issues described in this chapter that should be considered when designing rights of appeal will be equally relevant to the design of processes for internal review (for example, rules or procedures in 28.4; limits on the scope of the review in 28.5; and procedural safeguards in 28.7).

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