LLB230 Lecture Notes - Lecture 3: Hilmer Motorsport, Migration Agents Registration Authority, Occupational Licensing
Week 3 – Reviewing Executive Decision Making: The Nature and Framework
of Merits Review
What is administrative decision making?
• Administrative decisions are decisions that are usually made under legislation (but
can based on executive and prerogative power as well) and are directed towards a
particular person (or organisation). They are different from contractual and
commercial decisions and policy and political decisions
• Made by a public authority made under a formal power that can affect rights of
individuals or a group
• Examples of administrative decisions include:
- Issuing a licence to a taxi driver;
- Granting or refusing access to documents under freedom of information laws;
- Refusing to register a migration agent; and
- Placing conditions on a planning permit
What if I o liet doest like a deisio? Ho a I get it eieed? →
Merits Review and Administrative Tribunals – Introduction
• Common to give the function of external merits review to administrative tribunals →
more suited for merits reviews as it functions differently to a court
• Merits review requires the reconsideration of a decision. Considers issues of law,
fact, policy and discretion (broader role than courts)
• Tribunals also offer independent dispute resolution
• Under the separation of powers, courts may only exercise judicial power however
tiuals aet estited
• Australia has a well-developed system of administrative tribunals including a multi-
purpose tribunal with jurisdiction over a range of administrative and civil matters.
Also includes specialist tribunals
• Administrative tribunals operate within the framework of administrative law which
applies to other executive decision makers and are subject to the same principles of
administrative law
• Tribunals also involved with resolving disputes with government
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Merits Review: What is it?
Merits review
• Language of merits review came about in 1976 with the establishment of the
Commonwealth Administrative Appeals Tribunal (AAT)
- a old ioatio the Federal Government for which there was no precedent
elsehee i the oo la old
- poote the ule of la ad good goeet ealig itizes to all i
uestio adiistatie deisios
- controversial → review decisions on the merits of questions of facts and law
- review extended to questions of policy
- distinguishing feature → general jurisdiction to review a diversity of
administrative decisions
- starting point was s 43 of the AAT Act → became the model for conferring a
merits review upon a tribunal
• Issues of s 43:
- Tribunal is reviewing a decision and not the reason for that decision
- Tribunal not restricted either to the case stated by the parties or the material
before the primary decision maker
- Tribunal bound to apply the law but not decide consistently with executive policy
- Neither party bears the onus of proving that the decision was prima facie right or
wrong
- Rules of judicial proceedings relating to pleadings and evidence not transported
into administrative review
• When we say merits we are talking about the substance of a decision → the facts
• A reconsideration of the substance - or merits - of an administrative decision
• Merits review is a creature of statute, not the common law
• An original decision is made by the relevant department and it is made by applying
the law to the facts
(1) For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are
conferred by any relevant enactment on the person who made the decision and shall make a decision in
writing:
a) affirming the decision under review;
b) varying the decision under review; or
c) setting aside the decision under review and:
i) making a decision in substitution for the decision so set aside; or
ii) remitting the matter for reconsideration in accordance with any directions or
recommendations of the Tribunal.
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• If it is reviewed by an administrative decision maker in the context of merits, they
ask themselves 'is this the best decision on the merits?' → if yes then they agree
with the law
• Then he or she substitutes his or own decision for that of the original decision-maker
• Nature of merits review (fundamental concepts and procedural concepts) are not
particularly within any statute so must look at case law for ideas
Rehearing
• Decision maker looks at the decision and the evidence that that decision was made
upo, doest look at e eidee
• The decision-maker (usually) only takes into consideration material that was before
the original decision-maker
• Reviews matters based on errors in the original decision
• Example: Racing Appeals Tribunal
De Novo Review
• Whenever, by statute, parliament conferred jurisdiction upon a person or body to
review an administrative decision, there was a presumption that the review would
be de novo
• Means making the decision afresh o ae
• Aim → decision maker to come up with a new decision or agree with the original
decision
• The decision is made 'anew', based on the material before the review body (Re
Greenham)
• The reviewer 'stands in the shoes of the original decision-maker'
• Aims to come to the 'correct or preferable decision'
Correct or preferable decision
The Fedeal Couts deisio i Drake (No 2) oied the phase oet o pefeale
to define the scope of merit review.
Thee has ee geeal aeptae of the eaig of oet as efeig to oet
in law or fact.
The eaig of pefeale has ee attiuted to the otet of discretionary decisions
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Week 3 reviewing executive decision making: the nature and framework of merits review. What is administrative decision making: administrative decisions are decisions that are usually made under legislation (but can based on executive and prerogative power as well) and are directed towards a particular person (or organisation). They are different from contractual and commercial decisions and policy and political decisions: made by a public authority made under a formal power that can affect rights of individuals or a group, examples of administrative decisions include: Granting or refusing access to documents under freedom of information laws; Refusing to register a migration agent; and. Also includes specialist tribunals: administrative tribunals operate within the framework of administrative law which applies to other executive decision makers and are subject to the same principles of administrative law, tribunals also involved with resolving disputes with government. Merits review: language of merits review came about in 1976 with the establishment of the.
