Lecture 2 - Merits Review


  • Merit Review

  • Legal Limits of Decision

  • Substantive Decision

  • Court vs. Tribunal

  • Location: University of South Australia

Merits Review vs. Judicial Review

  • Merits Review:

    • Focus on the substance of the decision.

    • Assess correctness or preferability of the decision.

    • Review conducted by standing in the shoes of the original decision-maker.

  • Judicial Review:

    • Focus on the manner the decision was made, legality of the process rather than substance.

    • Determines if any legal error was made by the original decision-maker.

  • Distinction:

    • Administrative power (merits review) vs. Judicial power (judicial review).

Type of Power

  • Tribunals viewed as part of administration:

    • Decide appeals based on judgments reflecting societal and economic goals of statutes.

  • Might be seen as part of adjudication:

    • Apply the law impartially in an adversarial procedure.

  • Reference: P Bayne, "Tribunals in the System of Government (1990)"

Separation of Powers (Federal)

  • Distinctions at federal level between:

    • Judicial: Courts and judicial functions.

    • Executive: Includes tribunals.

  • Chapter III court limited to federal judicial power.

  • Referenced Case: R v Kirby; Ex parte Boilermakers' Society of Australia (1956).

Separation of Powers (State)

  • No strict separation at state level.

  • Constraints on state legislatures to prevent conferring of non-judicial functions to courts.

  • State courts must maintain integrity and independence as part of federal system.

Methods of Undertaking Merits Review

  • Mechanisms for reviewing the merit, correctness, or preferability of a decision.

    1. Internal Review

    2. Appeal

    3. Tribunal Review

Internal Review

  • Systems allowing internal review improve decision quality.

  • Important for consistency, especially with junior decision-makers.

Appeals

  • Appeals represent the purest form of merits review.

  • Review the primary decision by a higher authority (like a court).

  • Includes determining facts, law application, and final judicial decisions.

Appeals: Statutory Nature

  • Not a common law procedure but creature of statute.

  • Example: Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd.

  • Categories of appeals:

    1. Appeal stricto sensu

    2. Appeal by rehearing

    3. Appeal with additional evidence

    4. Appeal by hearing de novo

Different Forms of Appeal

  • Vary in the scope of appellate court's interference:

    • Supervisory jurisdiction: Errors affecting jurisdiction or natural justice.

    • Questions of law only: Issues of fact must be remitted.

    • Trial by judge and jury: Errors in law disturb results; issues of fact redetermined.

    • Appeals from judges: Substitute judgment for errors of law or fact.

    • Rehearing of cases: The appellate court considers new evidence.

    • Hearing de novo: All issues retried.

Courts vs. Tribunals - Differences

  • Advantages:

    • Courts: Fair, formal, public

    • Tribunals: Flexible, cheaper

  • Disadvantages:

    • Courts: Expensive, slow

    • Tribunals: Limited enforceability

  • Membership and Qualifications:

    • Courts have judicial officers with secure tenure; tribunals have members appointed by executive government.

  • Access and Costs:

    • Courts have strict standing requirements; tribunals aim to remain low-cost and accessible.

The Administrative Appeals Tribunal (AAT)

  • Created in the 1970s as part of a modern administrative law system.

  • Objectives:

    • Accessibility, fairness, economical processes, and confidence in decision-making.

Power on Review by the Tribunal

  • May exercise all powers conferred on original decision maker and can affirm, vary, or set aside decisions.

  • Administrative Appeals Tribunal Act 1975 provides this jurisdiction.

A ‘De Novo’ Hearing

  • AAT conducts an entirely new decision-making process reviewing past decisions.

‘Correct or Preferable’ Decisions

  • AAT’s role differs from courts by focusing on the merits and whether decisions are correct or preferable.

  • AAT can correct earlier misunderstandings of facts or apply law differently.

South Australian Civil & Administrative Tribunal (SACAT)

  • Established under the SACAT Act 2013 to replace previous tribunal functions.

  • Objectives:

    • Promote good public administration principles, accessibility, quick resolution, and minimal costs.

SACAT Features

  • Aims to reduce costs, flexible procedures, and informal processes.

SACAT Jurisdiction

  • Broad jurisdiction includes areas like Adoption, Animals, Community Housing, and more.

Conclusion on Review Jurisdiction

  • SACAT reviews decisions by rehearing to reach the correct or preferable outcomes, standing in the original decision-maker's shoes.