ADMINISTRATIVE LAW

Exam Notes 2016

MERITS REVIEW

What is Merits Review? Merits review involves the reconsideration of a decision, a decision by the executive. The merits review

body will stand in the shows of the original decision maker and make a fresh decision based on the merits

of the case.

In Drake v Minister for Immigration and Ethnic Affairs, Bowen CJ and Deane J held that ‘the question for

the determination of [a] Tribunal is whether that decision was the correct or preferable one on the

material before the Tribunal

In the Council’s guide, What Decisions should be Subject to Merits Review, the Council explained that a

decision is ‘correct’ in the sense of being made according to law and preferable in the sense that it is

the best decision that could have been made on the basis of the relevant facts.

Essentially it is repetition of the process of the original decision maker but by a different decision maker

Merits review- statute says “decision can be made in these circumstances” on the facts- do they satisfy

the listed criteria? If not, entitled to merits review

Difference between Merits Review and Judicial Review:

Constitutional basis for difference/distinction- Federal Courts cannot engage in merits review

because to do so would be to exercise non-judicial power and therefore would be in breach of the

Boilermaker’s principle

In General:

Merits review- question: was the decision the best decision based on the merits

Judicial review- was the decision correctly made according to law

The process and outcome:

Merits review- involves a new administrative decision maker substituting his/her own decision for that of

the original decision maker. The facts, the law and policy are considered again and a new decision is made.

Therefore merits review offers the prospect of a new more favourable decision.

Judicial review- courts decide upon the lawfulness of a decision and make orders to quash it if it is wrong

according to law. The judiciary do not express their opinions on policy matters or if another decision was

preferable. The exercise of power just has to be lawful

Right to Merits Review/ Standing There is no right to seek merits review under the common law

Right to merits review depends entirely on the relevant legislation- you must look at the statute to

determine whether merits review is available and if so, what body will determine the review

The test for standing, along with the procedure to be adopted, the standard of review and the powers of

the review body is all dictated by the statute.

Exception: merits review is always open to a person affected by a decision to make an informal

request that the decision-maker reconsider their decision. This has no statutory basis

Nature of Merits Review: Hearings de novo & re-hearings

De novo review:

most common and comprehensive type of merits review.

Here the new decision maker stands in shoes of original decision maker, the new body makes a

fresh decision, having regard to all the material put forward

Fresh evidence can be given. So, new evidence that was not available at original decision can be put

forward.

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

o AAT took into account evidence of conduct after MARA decision up until AAT decision

o Shi had been allowed to practice (with conditions) until AAT appeal was heard

o In that time he improved his conduct etc- AAT took this into account when considering the

appeal

the appellate body is required to exercise its powers whether or not there was error at first instance

Grounds for the review don’t need to be given. They just simply need to present all the evidence

and convince the new review body that the decision they seek is the correct one. Then a new

decision is made

Aim of de novo review- reaching the correct or preferable decision- Drake v Minister for

Immigration and Ethnic Affairs (1979). Correct = lawful.

If, once applying the law to the facts there are a range of possible decisions, the decision maker

judges the best of the available options

Doesn’t need to be an error in original decision- just makes a new decision and that decision is

whatever it thinks best!

Re-Hearing:

More restricted than hearing de novo

Conducted on basis of material before the original decision maker, although they may have

discretion to admit fresh evidence

Involves a search for errors in original decision rather than a completely fresh decision making

process

The errors can include factual or discretionary errors ie too much weight put on one factor in

particular.

If no error, the review body cant alter the original decision even if the review body believes a better

decision could have been made

Internal & External Merits Review The legislation provides for the TYPE of merits review: ie Freedom of Information act provides for internal

merits review followed by an additional External merits review body such as the Administrative Appeals

Tribunal (AAT)

Internal Merits Review- statute may provide that a government decision can be reviewed within the

department. Often by a more senior officer than the original decision maker.

Often the statute will have the minister being responsible for making the decision. If the minister is the

primary decision maker then there will rarely be provision for internal review as the minister is the highest

ranking official within any department.

External Merits Review- external review bodies are executive institutions that sit outside of agencies that

review the agency’s decisions.

Often given titles such as tribunal, board, panel, commission- but the title isn’t important. Only its powers

and functions are important.

There are some specialist bodies that deal with specific areas ie social security appeals tribunal. And there

are generalist tribunals that have jurisdiction to review a range of administrative decisions such as the

AAT - From 1 July 2015 all the specialist tribunals with the exception of the Veterans Review Board were

amalgamated with the AAT as part of the Abbott government’s budget changes.

Courts that have merits review jurisdiction- some merits review functins can be carried out by state

courts. Its not common but can happen

In the states there is no separation of powers so it is permissible to confer non-judicial functions on state

courts- Kable v Director of Public Prosecutions (NSW) (1996)

There are constitutional limits on functions conferred on federal-courts. Federal courts can only exercise

judicial power of the commonwealth. De novo review requires exercise of executive power. Sine merits

review however have “chameleon powers”and these functions can be conferred on federal courts.

What is a tribunal?

A tribunal is an external merits review body that is NOT a court, although may have court characteristics

External to government agencies. But are not completely separate as they are established by statute,

funded by government and form part of the executive.

Tribunals exercise executive power.

Procedure is more formal than internal merits review and bear similarity in procedure to courts.

Some functions of tribunals are chameleon powers

Does not have to be called a “tribunal” to be a tribunal. Can also be called a panel, a board or commission

Decisions of tribunals can in turn be reviewed by courts

Commonwealth tribunals- judicial power of commonwealth can only be exercised by Chapter III courts-

R v Kirby; Ex Parte Boilermakers Society of Australia (1956).

Brandy v Human Rights and Equal Opportunity Commission- commission dealt with complaints under

Racial Discrimination Act. If claim was substantiated, the commission had power to order offending party

to take certain steps including paying compensation. Moreover, the determination although was not

binding and conclusive, it was lodged in a registry of the Federal Court and upon registration the

determination had the effect of an order of the Federal Court. The HC held that the legislation creating

the scheme for registering the determinations in the Federal Court was invalid as it had the effect of

conferring judicial power on the Commission. The effect of the registration made the commissions’

determinations binding and authoritative – a defining characteristic of judicial power. This infringed the

Boilermakers principle.

Drake v Minister for Immigration and Ethnic Affairs- the AAT did not infringe Chpt III of the constitution

by appointing a federal judge. Therefore it is constitutionally permissible for serving federal judges to sit

on merits review tribunals.

Status of Tribunal Decisions- commonwealth administrative tribunals cannot be given the power to

enforce the decision. This does not mean that tribunals don’t have legal effect. To do otherwise would

involve a disregard for the rule of law. The tribunals decision will be treated as determining the legal rights

of the parties which the court may enforce.

Conferral of Jurisdiction- as creations of statute, tribunals have no inherent jurisdiction- parliament must

specify which decisions a tribunal can review.

Common that the Act that establishes the tribunal, also allows other Acts (enabling Acts) to confer

jurisdiction on the tribunal.

Tribunal Procedure – tribunals must comply with rules of procedural fairness – often specified in the

statute ie Administrative Appeals Tribunal Act 1989 s7(b) “the tribunal must observe natural justice and

procedural fairness”

Tribunals and Standing- each tribunal is created by statute, therefore parliament specifies the rules of

standing.

The standing test can come from the Act establishing the tribunal itself ie AAT act s 27- allows

persons “whose interests are affected”

The standing test can come from the statute conferring review jurisdiction on the tribunal in respect

of that decision

Appeal and Review of Tribunal Decisions- tribunal decisions are administrative decisions therefore can

be reviewed by merits review and judicial review.

THE ADMINISTRATIVE APPEALS TRIBUNAL

Jurisdiction- s 25(1) of AAT act provides:

(1) An enactment may provide that applications may be made to the Tribunal:

(a) For review of decisions made in the exercise of powers conferred by that enactment

• AAT has no general jurisdiction to review on the merits – ONLY has jurisdiction where it is

specifically conferred.

S 37 – all documents relevant to the original decision must be made available to the Tribunal

S 43(2) – AAT must give reasons for its decisions – in writing.

STATE ADMINISTRATIVE TRIBUNALS: SACAT

SA- South Australian Civil and Administrative Tribunal- SA’s generalist merits tribunal

Recently the passage of South Australian Civil and Administrative Tribunal Act 2013 changed that

Act came into operation at end of 2014 (but there are still some separate tribunals operating whilst in

this transition phase)

SACAT’s Jurisdiction:

Jurisdiction conferred by the Act or any other state Act s 31

Section 32-Three kinds of Jurisdiction:

- Original jurisdiction-s 33

- Review Jurisdiction-s 34

- Internal Review jurisdiction s 70

s.33 Original jurisdiction-applies where the matter given to tribunal by a statute does not involve a

reviewable decision. Tribunal acts as original decision maker in the matter, can resolve a dispute

between parties and adopt other courses of action that it considers appropriate to deal with the matter-

example of the Tribunal’s civil jurisdiction

s 70 internal review jurisdiction- sets out a procedure for the Tribunal to review its own decisions where

the Tribunal was exercising its original jurisdiction. Sets out rules for how it takes place. Obviously it will

not be a review by the Tribunal member who made the original tribunal decision.

SACAT’s review jurisdiction-s.34:

Review of matter before Tribunal governed by following matters:

a. It must examine the decision of the decision maker by way of rehearing s 34(3)( so not strictly a de

novo hearing)

b. It must ‘reach the correct or preferable decision but in doing so must have regard to, and give

appropriate weight to, the decision of the original decision maker’ s 34(4)

c. It must consider the evidence and material before the original decision maker, but with discretion to

admit new material s 34(5)

d. It must also have regard to any relevant factors referred to in the legislation under which the

decision was made s 34(6)

e. Relevant Act may modify operation of the Act in relation to a matter that comes before the

Tribunal’s review jurisdiction.

***Not strictly a de novo hearing- its more limited than a de novo hearing

Tribunals powers on a review – s37(1)

• Affirm the decision being reviewed, or

• Vary the decision being reviewed, or

• Set aside the decision being reviewed and

i. Substitute its own decision, or

ii. Send the matter back to the decision maker for reconsideration in accordance with any

directions or recommendations that the Tribunal considers appropriate

AND, in any case, may make any order the Tribunal considers appropriate (including any interim order

pending the reconsideration & determination of the matter by the decision maker, or any ancillary or

consequential order, that the Tribunal considers appropriate).

The Tribunal decision takes effect(substitutes) as a decision of the decision maker S 37(3)

Principles governing Tribunal hearings –s 39

On the hearing of any proceedings, but subject to the provisions of a relevant Act—

(a) the procedure of the Tribunal will, subject to this Act, be conducted with the minimum of

formality; and

Judicial Review takes the facts and law as they were at the time of the original decision

The outcome of a successful JR (judicial review) application is that the original decision is legally

‘quashed’ and the matter is remitted (sent back) to the original decision maker who then has to make a

fresh decision

A Court CANNOT exercise executive power –federal courts cannot engage in merits review because to

do so would to be exercise non-judicial power and therefore be in breach of the Boilemakers principle- R

v Kirby; Ex Parte Boilermakers Society of Australia (1956)

Moreover, a court can only review errors of law, but not errors of fact

hence it cannot substitute its own decision – and must remit the matter to the executive branch for

reconsideration if it finds a legal error in the original decision

overall: the grounds of judicial review are based on legal errors in the original decision not on

disagreements as to whether the ‘correct or preferable’ decision has been made.

Step 1. Applicant must make out ‘ground of review’ - the grounds are errors of law.

Sources of Judicial Review:

1.the common law

2.The Constitution

3.Statutes

How to determine what jurisdiction is available?

1.is this a state or commonwealth matter?

2.SA has no statute for judicial review, so relies on the common law.

3.choice as to whether to commence judicial review under statute before the Federal Court OR Federal

Circuit Court (AD(JR) Act 1977 (Cth) s 8), OR constitutional judicial review before the Federal Court

(Judiciary Act 1903 (cth) s 39B) or the High Court (Constitution s 75(v))

Option 1. COMMON LAW JUDICIAL REVIEW:

at common law, state courts have inherent jurisdiction to undertake judicial review of decisions of

inferior courts, of tribunals etc.

this means that courts can conduct judicial review even if there is no statute that expressly confers

jurisdiction

There are many common law remedies:

Certioti -quashing an unlawful decision

Prohibition – prohibit an unlawful exercise of power

mandamus- order an official to exercise a power he lawfully held or show cause why not

GROUNDS/BASIS FOR COMMON LAW REMEDIES:

1. JURISDICTIONAL ERROR- Common law ground of review

• Jurisdiction - the authority to decide

• Jurisdictional error – go beyond jurisdiction

A jurisdictional error involves:

A) a misunderstanding of the nature, scope or existence of a decision-makers jurisdiction, and also

B) extends to an error made while exercising a power if that error leads a decision-maker to exceed

their authority

One of the basis for certiori and breaches of procedural fairness and non-jursidctional errors of law on

the face of the record.

Craig v South Australia (1995) 184 CLR 163

Facts: Mr Craig was charged in the District Court of SA with three offences involving a motor vehicle. Applying

Dietrich v R (1992) 177 CLR 292, the trial judge ordered that the trial be stayed until legal representation was

made available to him. The State applied to the Supreme Court for an order in the nature of certiorari to quash

the order of the District Court. The Crown disagreed with Trial Judge’s interpretation of the Dietrich test: But

had no statutory appeal rights – so sought judicial review

Held: On appeal, the High Court held that an error (if any) by the District Court could not be quashed by

certiorari, because any such error was neither a jurisdictional error nor an error on the face of the record of the

District Court.

If Judge Russell fell into error in assessing the effect of the majority judgment in Dietrich or in concluding that

C's inability to obtain legal representation was through no fault on his part, that error was within jurisdiction. It

was not a jurisdictional error for the purposes of certiorari.

Judicial Review and Inferior Courts:

Judicial review is available against inferior courts as well as administrative decision makers

In craig- the district court made a decision for Mr Craig. The crown applied to supreme court for certiori to quash

district courts decision. Supreme court held that district court had failed to take relevant matters into account and

held these were jurisdictional errors. On appeal the HC reversed the supreme court’s decision- they held that the

district court has jurisdiction to decide questions of law and was within jurisdiction to determine what matters

were relevant

As a court, even though it was an inferior court, the judge had the jurisdiction to determine the law and this

extended to getting the law wrong! This is not the case for administrative decision makers such as tribunals “ an

administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or

decision otherwise than in accorance with the law”. In craig the district courts decision was made within

jurisdiction and was not subject to certiori for jurisdictional error.

Therefore:

1.Courts can make errors but theyre not necessarily jurisdictional errors

2.Tribunals- administrative decision makers. Cant get law wrong. Errors of law will most likely be jurisdictional.

Has the error of law taken them beyond jurisdiction? Not always… work out on case by case basis if this is the

case

Examples of Jurisdictional Errors by Inferior Courts (list from Craig):

• mistakenly asserts or denies the existence of jurisdiction

• misapprehends or disregards the nature or limits of its functions or powers

• if, having civil jurisdiction only, it purported to hear and determine a criminal charge

• making an order beyond power - such as an order for specific performance when its powers were limited

to awarding damages for breach

• lack of an objectively required jurisdictional fact

Examples of Jurisdictional Errors by Administrative Tribunals

With tribunal decisions, Errors of law are more likely to be jurisdictional errors

But need to argue that it is in fact a jurisdictional error- case by case analysis

These examples came from craig:

evidence. Misapprehended the limits of its functions and powers – jurisdictional error

How to actually determine if the error is a Jurisdictional error?

Example: FTZK v Minister for Immigration and Border Protection (2014) 310 ALR 1 (High Court):

Facts: The criminal allegations were not relevant to the protection visa. Visa refused by minister. AAT

decision being reviewed. Did AAT make a jurisdictional error? Found by federal court there was no

jurisdictional error

HC appeal- to consider, had federal court erred in finding no jurisdictional error?

Held: AAT had not made findings of fact that required it to come to the conclusion it did. High Court held

– AAT had made a jurisdictional error

How did they determine the errors were jurisdictional? Questions to consider/ask:

The AAT did not respond to the question it was required to ask… By that omission it committed a

jurisdictional error” [19] French CJ and Gageler J.

“The tribunal failed ‘to apply itself to the real question to be decided or [misunderstood] the nature

of the opinion it [was] to form.’” [25] Hayne J.

“the tribunal misconstrued the test it had to apply.” [42] That was a jurisdictional error [43] Hayne J.

“the tribunal misconstrued its functions and powers” [97] Crennan and Bell JJ.

2.NON-JURISDICTIONAL ERRORS OF LAW ON THE FACE OF THE RECORD: A basis for certiorari