Session Eight: Merits Review of LLW 3000 Australian Administrative Law Online

Merits Review: Tribunal Reconsideration of Executive Decisions

• Merits review involves tribunals reconsidering executive decisions, focusing on whether a decision is correct or preferable, not just its legality. It ensures that decisions are fair, reasonable, and aligned with the broader public interest.

• Tribunals are members of the executive capable of reconsidering questions of fact, allowing for a thorough examination of the evidence and circumstances surrounding a decision.

New Administrative Law Package

• In the late 1970s, Australia established a new administrative law package at the federal and state levels to improve government accountability and transparency.

• Federal Level:

  • Created the ADJR Act, providing a statutory jurisdiction for judicial review and establishing the Federal Court of Australia. The ADJR Act set out specific grounds on which administrative decisions could be challenged in court.

  • Grounds of review in the ADJR Act are relevant to both common law and statutory judicial review, ensuring consistent standards across different types of legal challenges.

• Focus:

  • Administrative Appeals Tribunal (AAT) at the federal level. The AAT is the primary body for merits review of federal government decisions.

  • Victorian Civil and Administrative Tribunal (VCAT) in Victoria. VCAT handles a wide range of disputes, including administrative and civil matters.

• Key Aspect:

  • Creation of merits review tribunals to address limitations in judicial review. These tribunals were designed to provide a more accessible and flexible alternative to court proceedings.

    • Judicial review is a formal, expensive, time-consuming, and intimidating court proceeding. It often requires legal representation and can be a daunting process for individuals.

    • Limited by the nature of judicial power, focusing only on legality. Courts can only determine whether a decision was made lawfully, not whether it was the best or fairest decision.

    • Cannot intrude on the merits or remake decisions due to the separation of powers. Courts must respect the division of responsibilities between the judiciary and the executive branch.

• Merits Review Addresses Limitations:

  • Tribunals and internal reviews within government departments can revisit factual matters and remake decisions. This allows for a more comprehensive assessment of the case and consideration of new evidence.

  • Cheaper, easier to access, and faster than judicial review. Tribunals typically have lower fees and simpler procedures than courts, making them more accessible to the public.

  • Can flip adverse decisions to beneficial ones, unlike courts which can only invalidate decisions and direct them to be remade lawfully. Tribunals can substitute their own decision for the original one, providing a more direct remedy.

• Additional Aspects of the Package:

  • Ombudsman Act: Provides a mechanism for investigating complaints about government agencies and recommending corrective action.

  • Freedom of Information Act: Gives individuals the right to access government documents and information, promoting transparency and accountability.

Administrative Law for Individual Applicants

• Informal Review: Practical options for resolving disputes with the government outside of formal legal processes.

  • Negotiating with public officials: Engaging in direct dialogue to find a mutually acceptable solution.

  • Engaging local political representatives or the media: Seeking assistance from elected officials or raising public awareness of the issue.

  • Referring matters to the Ombudsman: Requesting an independent investigation and recommendation.

• Freedom of Information: Provides access to government decision-making information.

  • Useful for judicial review cases: Helps individuals gather evidence and understand the basis for a decision.

  • More generally available, used by the media to supervise government activity: Enhances transparency and allows the public to scrutinize government actions.

• Merits Review: Disputes resolved in tribunals or within departments.

  • Internal Review: Many statutes require challenges to go through an internal review process within a department first. This allows the agency to correct errors and reconsider its decision before it is challenged externally.

    • Example: Centrelink cases must go through a review process involving more senior officials before reaching the AAT.

  • Formal merits review is explicitly outlined in law, providing a clear framework for challenging administrative decisions.

• Judicial Review: Last resort for challenging the government when other avenues have been exhausted.

Broader Mechanisms of Accountability

• Ombudsman and Freedom of Information: Valuable beyond individual applicants for general government accountability.

• Anti-Corruption Commissions: Investigate corruption within their jurisdiction.

  • Examples: Victoria (IBAC), New South Wales (ICAC).

  • Investigate corrupt practices between property developers and local council workers, mining companies, and indigenous groups negotiating native title matters.

• Auditors: Supervise government finances and analyze government efficiency.

  • Federal Auditor General.

  • Ensure the government isn't wasteful.

  • Analyze government efficiency and promote good governance principles.

• Royal Commissions: Commissions organized by the executive to investigate specific issues of public importance.

  • Examples: Provision of aged care, child sexual abuse.

• Parliament: Supervises delegated legislation and scrutinizes the executive.

  • Question time is an accountability mechanism, allowing members of parliament to question ministers about their portfolios.

  • Committees assess and review government processes, providing detailed scrutiny of government activities.

Federal Tribunals and Separation of Powers

• Federal tribunals are significantly affected by the separation of powers, which limits their ability to exercise judicial functions.

• When appealing against an administrative decision, matters are usually taken to the AAT.

• The AAT can rehear decisions de novo, reconsidering all facts and how the law applies. This means the tribunal starts the decision-making process afresh, without being bound by the original decision.

• Statute Can Restrict AAT Powers:

  • The AAT may merely provide a recommendation, rather than remake the decision. This limits the tribunal's power and gives the original decision-maker the final say.

  • Example: Specified in the Migration Act regarding deportation orders. In some cases, the AAT can only advise the minister, who then decides whether to follow the recommendation.

  • Appeals tribunals typically have broad power, but it may be restricted to a supervisory or advisory role depending on statute.

• Tribunal legislation grants courts appeal jurisdiction over tribunal decisions. This allows for judicial oversight of tribunal decisions and ensures they are consistent with the law.

• It's an appeal, not an application for review, meaning the court focuses on errors of law rather than reconsidering the merits of the decision.

• There is still the potential to apply for judicial review of what a tribunal does, providing an additional layer of legal scrutiny.

Tribunal Powers

• Tribunals can remake decisions, reconsidering questions of fact and how the law applies. This allows them to correct errors and ensure decisions are fair and reasonable.

• They consider facts as they've developed over time since the decision was made, allowing them to take into account new information and changing circumstances.

• Tribunals stand in the shoes of the original decision-maker and remake decisions with the same powers. This means they can exercise the same discretion and authority as the original decision-maker.

• Tribunal decisions are as enforceable as the original decision.

  • If a deportation order is affirmed, it remains in effect.

  • If the tribunal remits and recommends reconsideration, a court application may be needed for enforceability.

• Tribunal decisions occur de novo, engaging with facts and reconsidering them.

• They consider not just legality but also the merits of a decision.

  • Correctness of the decision: Whether the original decision was factually accurate and legally sound.

  • Preferability of the decision: Whether the decision is the best option in light of all the circumstances.

• Tribunal decisions are distinct from judicial decisions.

  • Judicial decisions require a justiciable controversy, meaning there must be a real dispute between parties.

  • The executive can make decisions for a broader range of matters, including policy and administrative issues.

• Tribunals do not have strict rules of evidence or procedure, allowing them to be more flexible and accessible.

• They are bound by procedural fairness but not specific rules of procedure, ensuring that individuals are treated fairly and have an opportunity to be heard.

• Limitation: Merits review tribunals can't make final conclusive determinations of the law because that is the exercise of judicial power, and is only for the courts. This preserves the separation of powers.

Brandy Case

• Decisions of the Human Rights and Equal Opportunity Commission imposing a penalty were invalidated because they violated the separation of judicial power.

  • Details:

    • Mr. Bell lodged a complaint against Mr. Brandi for racial discrimination.

    • The HREOC found that Brandi breached the Racial Discrimination Act and ordered him to apologize and pay damages.

• Brandi challenged the constitutional validity, arguing that imposing a penalty is an aspect of judicial power.

• The High Court agreed, stating that executive tribunals can't exercise judicial power. This reaffirmed the principle that only courts can impose penalties.

• The HR EOC decisions actually do get lodged in the federal court; however, the lodgement was found to effectively be a rubber stamp. This practice was deemed unconstitutional.

The AAT

• The Administrative Appeals Tribunal (AAT) is the premier federal merits review body.

  • Established by the AAT Act.

  • Conducts independent merits review of decisions made under federal laws, ensuring impartiality and fairness.

• A statute must authorize the AAT to review decisions. This ensures that the AAT's jurisdiction is clearly defined and limited.

  • Legislation must state that decisions may be appealed to the AAT.

• The AAT has jurisdiction under around 450 federal acts, reflecting its broad role in reviewing government decisions.

• The AAT requires engaging internal review before the AAT can be reached, ensuring that agencies have an opportunity to resolve disputes internally before they escalate.

• Two areas constitute 80% of its caseload: migration and social security, highlighting the importance of these areas to individuals and the government.

• The AAT attempts to resolve cases informally and quickly, promoting efficiency and reducing costs.

• Preliminary hearing might relate to an extension of time needed for something or if there should be a stay of proceedings. These hearings help manage cases and address procedural issues early on.

• If preliminary hearings are deemed sufficient, then there may be a conference or the first conference might indicate that the matter might be resolved through conciliation, mediation, or perhaps even some form of independent case appraisal to give information to the government and the applicant. These alternative dispute resolution methods can lead to quicker and more satisfactory outcomes.

• If the issues are not resolved, the AAT will go to a more formal proceeding. So a directions hearing in relation to the latest substantive hearing and then a full contested hearing in front of the tribunal, where there's an arbitrated decision at the end. This ensures that all cases receive a thorough and impartial hearing.

AAT Jurisdiction

• Section 25 of the AAT Act specifies jurisdiction.

• Enactments may provide for applications to the tribunal for review of decisions. This is the legal basis for the AAT's power to hear cases.

• Enactments will specify who can apply, what decisions they may relate to, and other conditions. This ensures clarity and predictability in the AAT's operations.

• The avenue of review can be qualified. The legislation may limit the Tribunal's general powers contained within section 43 of the AAT Act

• Deportation powers under the Migration Act may be limited, in AAT review to the AAT providing a recommendation to the minister, which the minister then may, choose or or not choose to follow.

• In the Social Security Act, the Migration Act, there has to be a process of internal review within the department first. This helps to resolve issues before they reach the AAT.

AAT Standing

• A person whose interests are affected by a decision has standing to bring a case before the AAT.

• Organizations and associations may be affected by a decision if that decision is within their objects or purposes. This allows them to represent the interests of their members.

AAT Proceedings

• Section 28 authorizes the AAT to request that a government agency decision-maker give reasons for a decision. This promotes transparency and accountability.

• Section 37 provides that a decision-maker must give the AAT a statement of reasons outlining key facts, evidence, and relevant documents. This ensures that the AAT has all the information it needs to make a fair decision.

• The AAT is required to send this information in most instances to the applicant for merits review as well, ensuring that they are fully informed about the case.

• Section 33 states the AAT is not required to abide by the rules of evidence, allowing it to consider a wide range of information.

• The applicant is typically entitled to be represented at the AAT. In some notable areas such as with Social Security and Centrelink or family law related matters, that may be limited or qualified. This ensures that individuals have access to legal assistance if they need it.

AAT Powers

• Contained in section 43.

• Enabling legislation may restrict what the AAT is allowed to do. This ensures that the AAT's powers are clearly defined and limited.

• The AAT can consider legality and the merits, allowing it to make a comprehensive assessment of the decision.

• The AAT has all the powers and discretions conferred by the enactment on the decision-maker. This means it can exercise the same authority as the original decision-maker.

• The AAT can affirm, vary, or set aside a decision, substitute a decision, or remit the matter back to the original decision-maker. This provides a range of options for resolving disputes.

Poci Case

• Deals with the rule to admit evidence without probative value.

• The president of the AAT, specified that just because the AAT is not bound by the rules of evidence doesn't mean it can just willy nilly, reach conclusions.

• The facts that it rely upon still have to have probative evidence, you know?

Drake Number 2 Case

• Deals with inflexible application of policy.

• Generally speaking, decision-makers, administrative decision-makers should follow government policy, but not if it is unlawful or not if it and not without regard to the particular circumstances of the case.

• Ministerial policy should be applied within the boundaries of each individual case.

• The AAT needs to make its own independent assessment, ensuring that decisions are based on the individual facts of the case.

AAT Law and Process Summary

• Jurisdiction under section 25, we need an enabling act for the AAT to have any power, and that Enabling Act may modify the AAT's general powers.

• A person must have standing, similar to the common law.

• There is a time limit within the AAT Act of twenty-eight days, just like the ADJR Act.

• When review is requested the original decision-maker has to provide all relevant information to the AAT.

• The AAT has broad powers to remake decisions subject to any statutory limitations within section 43.

• Typically, there is a right to be represented.

• Doctrinal interpretations of how far AAT power extends. - (Brandy and Drake): Subject to many of the same limitations of judicial of administrative decision-makers generally: Flexible application of policy and probative evidence required.

State Tribunals

• State and territory tribunals are not subject to the strict separation of federal judicial power, giving them more flexibility in their operations.

• Constitutionally, at the state level, the separation of powers is not entrenched; it is instead a constitutional convention.

• State tribunals aren't limited in the way that the HR EOC is in providing a penalty, imposing a fine, or making a final determination of law.

• VCAT can hear disputes between private citizens and exercise judicial power to resolve them.

• VCAT also does some limited, not judicial review per se, but limited, the exercise of judicial power and say contractual disputes.

VCAT

• VCAT has some civil jurisdiction for say contractual matters and some administrative jurisdiction for merits review and limited judicial review. The AAT does not hear civil matters.

• VCAT is created by statute, the VCAT Act, and that statute controls and provides its powers.

• VCAT's Jurisdiction:

  • Administrative matters.

  • Civil matters.

  • Human rights matters.

  • Residential tenancies.

• Jurisdiction varies between original and review depending on the type of case and which statutes apply.

• As with the AAT, enabling statutes are key, as is the VCAT Act, in specifying or understanding VCAT's powers.

• VCAT and The AAT have been given decision-making powers in enabling statutes