Judicial Review and Merits Review: Are the Boundaries Being Eroded?

AuthorRobin Creyke
Published date01 December 2017
Date01 December 2017
Subject MatterArticle
Robin Creyke*
Courts and tribunals have distinct roles within the Australian administrative law system
at the federal level, and to a lesser extent, in the states and territories. Questions of law
are for the courts, and questions of fact are for the executive and tribunals. From time to
time this orthodoxy is questioned. Suggestions are made that the courts are increasingly
tending to intrude into the province of tribunals. Using cases as illustrations, this article
explores five relevant jurisdictional areasfrom appeals on a q uestion of law to
deference under the Administrative Decisions (Judicial Review) Act 1977 (Cth) s
10(2)(b)(ii)to test the accuracy of the suggestion.
Courts and tribunals have distinct roles within the Australian administrative law system
at the federal level, and to a lesser extent, in the states and territories.
The accepted
position is that questions of law are exclusively for the courts to determine, and
questions of fact, including policy, are the province of the executive. The reason is
In accordance with orthodox principles of separation of power the exercise of judicial
power under the Constitution and the Judiciary Act 1903 (Cth) was exclusive of merits
As noted in the Kerr Committee Report: ‘the constitutional limitations
* Emeritus Professor, Law School, Australian National University. I acknowledge with
gratitude, the comments on this article by Emeritus Professor John McMillan and the two
A ‘“Tribunal” is not a word of precise meaning. However, relevantly in Australia, it has come
to describe institutions fulfilling one or more of three functions: reviewing administrative
decisions or the executive decisions of government; making original administrative
decisions; and resolving disputes in areas including consumer trading, tenancy and similar
matters’: Lord Justice Carnwath, Murray Chitra, Justice Garry Downes and Peter Spiller, ‘An
Overview of the Tribunal Scenes in Australian, Canada, New Zealand and the United
Kingdom’ in Robin Creyke (ed), Tribunals in the Common Law World (Federation Press, 2008)
For historical reasons limited exceptions have been acknowledged, examples being the
power of Parliament to punish for contempt of breach of privilege (R v Richards; Ex parte
Fitzpatrick and Browne (1955) 92 CLR 157) and for the military to punish for disciplinary
628 Federal Law Review Volume 45
attaching to the exercise of Federal judicial power effectively prevent the exercise by the
courts of the entirety of review on the merits’.
The result is that courts and tribunals lie
on d istinct sides of a constitutionally devised fence.
This is an axiom of the current
Australian administrative law system.
The result, as Brennan J said in his hallowed statement in Attorney-General (NSW) v
Quin (Quin), is that:
The duty and jurisdiction of the court to review administrative action do not go beyond
the declaration and enforcing of the law which determines the limits and governs the
exercise of the repository’s power The merits of administrative action, to the extent that
they can be distinguished from legality, are for the repository of the relevant power and,
subject to political control, for the repository alone.
The distinction between the two roles, however, is not absolute, as indicated by the
qualification ‘to the extent [merits] can be distinguished from legality’
observed by
Brennan J in Quin. Tribunals inevitably have to decide what is the ambit of the legal
principles, whether common law or statutory, which they have to apply; and the courts
inevitably examine factual elements of the decision. As Greenwood J noted, extra-
it should not be thought that there is some sort of absolute binary divide between the merits
of decision-making and the legality of a decision. For example, it may well be that the
manner or method of fact-finding falls so short of a proper deliberative process that the
power of review or source of authority conferred by an Act has not properly been
exercised. Examining that question will involve a comprehensive understanding of the
materials and the factual context, not with a view to substituting a merits finding for that
of the decision-maker but rather to understand the process of fact-finding adopted and
whether it was fair and proper. The question of whether inferences properly arise from
primary facts found is itself a question of law which necessarily requires an understanding
of the materials before the decision-maker and whether the facts found support the
contended inferences. There are other examples.
This article examines whether statutory and judicial developments are undermining
that fundamental principle by extending the courts’ supervisory role over tribunals, and
by permitting courts to exercise merits review. This can arise either on an appeal from a
tribunal, or during judicial review of a tribunal’s decision. The article assesses whether
the present operation of courts and tribunals still reflects the division of functions
referred to in Quin, or whether there are signs that the balance of functions is being
eroded by the courts, to the detriment of the distinct role of tribunals in the system.
offences (Re Tracey; Ex parte Ryan (1989) 166 CLR 518; Re Nolan; Ex parte Young (1991) 172
CLLR 460). The exceptions do not extend to merits review.
Commonwealth, Commonwealth Administrative Review Committee, Parliament of
Australia, Report (1971) 29 [89] (‘Kerr Committee Report’).
Sir Anthony Mason, ‘The Pursuit of Excellence in Tribunal Decision-Making in Australia, the
United Kingdom and Canada’ (2016) 29 Canadian Journal of Administrative Law and Practice
235, 236.
Attorney-General (NSW) v Quin (1990) 170 CLR 1, 356.
Ibid 36.
Justice Andrew Greenwood, ‘Judicial Review of the Exercise of Discretionary Public Power’
(2017) 88 Australian Institute of Administrative Law Forum 76, 90.

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