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MERITS Review (Summary (Looks into whether the correct and preferable…
MERITS Review
Summary
Looks into whether the correct and preferable desion has been made taking into account the the facts and circumstances of the case and any policy on which the decision is based
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is undertaken by members of the Executive (ministers and Statutory Boards and Tribunals) - courts cannot engage in meirts review; they can only engage in judicial reveiw
Internal and/or external - first stop to look at the statute which will set up how to get a review of the decision and who will review it.
May look at and apply statutory or other legal criteria tot eh applicants situtation but cannot make conclusive findings about the law - there must always be a right of appeal at court.
Possible for an aggrevied person to seek Merits Review (different from Judicial review which can only be undertaken by the court)
It is a review of the decision afresh, including findings of fact, and policies on which the decision is based as if the body conducting the review was the original decsion maker - this is referred to as de novo - Faulkner v Comcare
Drake v Minister for Immigration and Ethnic Affairs - can make decsion on whatever material is before tribunal (Inc. new material)
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Shi v Migration Agents Registration Authority - can hear new evidence not before the original decision maker
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Nature of Judicial Power
Precision Data v Wlls - difficult to define becuase many of its elements are not conclusive and they overlap with other types of power
Judicial power can: 1. Decide disputes between more than one party. 2. Determine rights such as property rights or personal rights and freedoms, 3. Make binding and enofrecable decisions (huddart, Parker and Co v Moorhead) including enofrcing their own judgements (the Wheat case)
R v Davidson - decison by Registrar to declare him bankrupt judical as it would affect more than one party
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