WEEK 3 Merit Review and Administrative Tribunals (Merits Review…
Merit Review and Administrative Tribunals
Common Law description: a review of factual issues and the exercise of administrative discretion by the original decision-maker to determine whether the decision is the “correct or preferable one on the material before the Tribunal”: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; 24 ALR 577; 2 ALD 60 Federal Court of Australia (Full Court).
Statutory description: In a merit review, the administrative review body “stands in the shoes” of the original decision-maker. Thus the review body can affirm, vary or substitute a new decision for the original decision: see s 43 of the AAT Act.
Administrative Appeals Tribunal (AAT): Established in 1975 by the Administrative Appeals Tribunal Act 1975 (Cth)
AAT est. 1975 by the Administrative Appeals Tribunal Act 1975 (Cth), the AAT started operating in 1976.
is part of the executive government of the Commonwealth of Australia
Re Visa Cancellation Applicant and Minister for Immigration and Citizenship
(2011) AATA 690, and falls within the portfolio of the Attorney-General.
It undertakes independent, informal, and non-technical review of administrative decisions made by the Australian Government, particularly that of its ministers, departments, and agencies
AAT has jurisdiction to review administrative decisions only if an Act, regulation or other legislative instrument states that the decision is subject to review by the Tribunal
Tribunal is organized into divisions, including the:
Taxation Appeals, .
National Disability Insurance Scheme,
General Administrative Division,
and Veterans’ Appeals Division
Administrative tribunals, such as the AAT, which closely resemble the typical adjudicative court model exhibit five structural and procedural characteristics in their review processes
exhibit five structural and procedural characteristics
a) they provide to each party appearing before them a reasonable opportunity of being heard;
b) they carefully weigh the evidence and material put before them;
c) they interpret and apply the law;
d) they expose their reasoning processes to the parties; and
e) they avoid actual bias or the appearance of bias: L W Maher, “The Australian Experiment in Merits Review Tribunals” in O Mendelsohn & L W Maher (eds), Courts, Tribunals and New Approaches to Justice, La Trobe University Press, 1994, p 75.
also share four key characteristics
• They enjoy a measure of independence from the government department with overall responsibility for the policy area in which they operate. This means, at the very least, that the minister cannot direct their decision-making, and in turn is not politically accountable for their decision under traditional principles of responsible government;
• They are specialised: they are associated with one or more specific programs, usually within a single statute;
• They are meant to be effective and typically operate at the ‘sharp end’ of the administrative process: that is, at the point where the program is applied to the individual;
• Their functions typically include making decisions that are sufficiently serious and specific in relation to the citizen as to attract the common law duty of procedural fairness: H MacNaughton, “Future Directions for Administrative Tribunals: Canadian Administrative Justice – Where do we go from here?” R Creyke (ed), Tribunals in the Common Law World, The Federation Press, 2008, p 204.
following basic categories of review are all, on occasions, loosely referred to as “merits review”
• Appeals only upon questions of law;
• Appeals only upon questions of fact;
• General review on the merits subject to limitations – i.e. the body may only be provided with recommendatory powers or may be restricted to a consideration of the material before the original decision maker;
• General review on the merits without such limitations – i.e. where the review process is supported by the power to remake the original decision and is not limited to the material before the original decision maker .
often referred to as a
• Entail review across the whole “gamut” of facts, law, discretion and policy;
• Permit consideration of information not available to the original decision-maker; and
• Allow the substitution of a new decision.