Merits Review and Judicial Review—The Aat as Trojan Horse
| Author | Peter Cane |
| DOI | 10.22145/flr.28.2.4 |
| Published date | 01 June 2000 |
| Date | 01 June 2000 |
| Subject Matter | Article |
MERITS REVIEW
AND
JUDICIAL
REVIEW-THE
AAT
AS
TROJAN HORSE
Peter Cane*
This
paper
examines
the
relationship
between
so-called "merits review" of
administrative decision-making,
and
"judicial review" of administrative action as
that
term
is
used
in
the title of the Administrative Decisions (Judicial Review) Act 1977
(ADJR Act), for instance.
In
particular,
it
assesses
and,
in
some
respects, challenges the
widely
held
view
that
there is aqualitative difference
between
merits review
and
judicial review. The
main
thrust
of
my
argument
will
be
that
the
differences
between
judicial review
and
merits review are
not
as stark as
they
are often portrayed. More
provocatively, Iwill
suggest
that
merits review
can
plausibly
be
described
as
judicial
review
in
disguise.
Section Iconsiders
the
constitutional
underpinnings
of
merits review,
and
concludes
that
from afunctional
point
of view, the exclusion
of
merits review
from
the
judicial
power
of
the
Commonwealth
is
hard
to justify. Section II examines
various
suggested
distinctions
between
judicial review
and
merits review. Its
main
conclusion
is
that
merits review is characterised
by
the
power
to
exercise afresh
the
decision-
making
power
invested
in
the original decision-maker.
In
section III, I
compare
the
grounds
and
remedies
of
merits review
with
those of judicial review.
One
conclusion
will
be
that
it
is
in
respect of review of administrative fact-finding
that
merits review
differs
most
from
judicial review. Another will
be
that
the
grounds
of merits
and
judicial
review
are formulated
in
such
abstract terms
that
they leave
much
room
for
the
injection of
the
values of
the
individual
judge
or
tribunal
member
into
the
review
process. This allows different reviewers to be more
or
less "interventionist"
or
lI
activist"
in
their
approach
to review of administrative decision-making.
In
the
concluding
section, I
make
afew comments
about
suggested reforms of the federal merits review
system.
I.
THE
CONSTITUTIONAL
FOUNDATION
OF
MERITS REVIEW
In
matters of Australian public law, the Constitution is always a
good
place to begin.
This is especially so
in
the
present
context because right from
the
start
(by
which
I
mean
the
report
of the Kerr Committee
in
1971)1
it
has
had
a
fundamental
and,
in
some
*
1
Thanks
to Peter Bailey,
Susan
Kneebone, Christos Mantziaris
and
Leslie Zines for
helpful
advice
and
comments.
Report
of
the
Commonwealth
Administrative Review Committee (Chairman:
The
Hon
Mr
Justice JGKerr) (1971) (hereafter Kerr Report). Reprinted
in
RCreyke
and
JMcMillan
(eds), The Making
of
Commonwealth Administrative Law (1996).
214
Federal
Law Review
Volume
28
ways
an
unfortunate,
impact
on
the
federal administrative
law
system. Despite
the
affinities
between
the Australian
and
the United States Constitutions,
outside
the
confines
of
Commonwealth
constitutional
law
the
mindset
of
Australian
public
lawyers
in
the
1960s
and
1970s
was
English.2In the United States, judicial review
of
administrative action
has
been
enormously
important,
at
least since
the
enactment
in
1946
of
the
Administrative Procedure Act,
which
regulates adjudication
and
rule-
making
by
regulatory agencies
and
other
government
instrumentalities.3The first
multi-functional administrative
agency-the
Interstate Commerce
Commission-was
set
up
in
1888,
and
many
more
were
created
in
the 1930s. Whatever
qualms
there
might
have
been
about
the
constitutionality
of
rule-making
and
adjudication
by
such
agencies
were
drowned
by
waves
of
enthusiasm for
the
New
Deal. The history
of
United
States administrative
law
since
then
has
largely revolved
around
the
relationship
between
courts
and
quasi-independent
administrative agencies.4
By
contrast,
in
1960s England, judicial review
was
benighted. The decisions
of
the
House
of
Lords
in
Ridge vBaldwin5
and
Anisminic vForeign Compensation Commission6
heralded
a
new
dawn.
But
by
1968,
when
the Kerr Committee
was
appointed,
the
sun
had
(in defiance of nature)
not
yet
risen
in
Australia.
It
is unsurprising, then,
that
the
Committee
did
not
see alarge role
even
for a
revamped
system
of
judicial review;7
and
that
they
looked elsewhere
in
search of
new
techniques for
holding
government
administrators accountable to those affected
by
their decisions. The
main
body
to
which
the
reports
of
the
Kerr
and
Bland8Committees gave
birth-the
Administrative
Appeals
Tribunal
(AAT)-was
truly
novel
in
two
ways. First,
it
was
anon-specialist
tribunal
with
power
to review administrative decision-making
in
diverse areas of
governmental
activity.
It
was,
in
other
words, atribunal of general jurisdiction.
Secondly,
the
senior members
of
the
new
tribunal
were
judges
and
lawyers.9The
involvement
of judges raised early
doubts
about
the constitutionality of
the
scheme,
but
they
were
soon
resolved.IO These two features of generality
and
the
involvement
of
judges
and
lawyers placed the AAT
much
more
squarely
in
the
judicial
branch
of
2
3
4
5
6
7
8
9
10
See, eg,
Kerr
Report,
para
97.
Kerr
Report,
paras
199-203.
"FollOWing
the
New
deal,
the
project of
administrative
law
shifted
from
maintaining
structural
integrity
in
a
system
of
separated
powers
to controlling
the
exercise
of
discretion
broadly
delegated
to
multifunctiona1
administrative
agencies": C S Diver,
"Sound
Governance
and
Sound
Law" (1991) 89 Mich LR 1436
at
1437.
For
a
very
readable
history
see
MShapiro,
VVho
Guards the Guardians? Judicial Control
of
Administration (1988).
[1964]
AC
40.
[1969] 2
AC
147.
Kerr
Report,
para
249.
Committee
on
Administrative
Discretions (Chairman: Sir
Henry
Bland) (1973) (hereafter
Bland
Report).
Reprinted
in
R
Creyke
and
JMcMillan (eds), The Making
of
Commonwealth
Administrative Law (1996).
The
Administrative
Review
Council
has
recommended
that
less
emphasis
be
put
on
legal
qualifications
as
acriterion for
membership
of merits-review
tribunals
in
return
for
greater
transparency
in
askills-based selection process: Better Decisions: Review
of
Commonwealth
Merits Review Tribunals (Report
No
39, 1995) (Better Decisions),
ch
4.
In
Drake vMinisterfor Immigration and Ethnic Affairs (No 1) (1979) 24 ALR 577.
2000 Merits Review
And
Judicial
Review 215
government
than
the typical English tribunal, for instance.
11
The inclusion of
the
word
"appealstl
in
the
name
of
the
new
general tribunal,12 coupled
with
the fact
that
it
could
do
everything a
court
could
do
by
way
of judicial review
13
and
more
(even
if
non-
conclusively
in
some
respects), served to reinforce the impression
that
the AAT
was
primarily designed as
an
effective substitute for,
not
acomplement to, judicial review
of
administrative action.
14
Admittedly, there
was
an
appeal
on
points of
law
to
the
Federal Court;
but
the fact
that
decisions of the AAT were subject to appeal,
and
that
the
appeal
was
limited to points of law,
can
actually be seen as confirming
the
status of
the tribunal as a
sort
of
inferior court.
15
The AAT looks
and
acts
more
like a
court
with
lay
members
than
atribunal
with
judicial
and
legal members.
16
How
ironical, then,
that
aprime concern of the Kerr Committee
was
to establish a
review
system
that
would
not
breach the Constitutional barriers to the conferral of
the
judicial
power
of
the
Commonwealth
on
Chapter
II bodies,
and
the conferral of non-
judicial
power
on
Chapter
III courts. Indeed, while
the
Committee considered
it
tlpreferable
tl
to commit
the
power
of
merits review to ageneral review tribunal
rather
than
acourt,17
the
only substantive reasons given for recommending a
Chapter
II
body
rather
than
a
Chapter
III
body
as
the
repository of the merits-review jurisdiction
were
the
constitutional
sefaration
of
powers
and
the desirability
that
the
tribunal
should
have
lay
members}
The reasoning
in
support
of the Committee's conclusion
that
merits-review jurisdiction could
not
be vested
in
a
Chapter
III
court
is
based
on
the
concept ofjusticiability.
Where the decision of
an
administrative authority involves non-justiciable issues, a
comprehensive review
of
that
decision cannot
be
committed to
the
courts.
It
is of
paramount
importance to recognise
that
the
vast
majority of administrative decisions
involve
the
exercise of adiscretion
by
reference to criteria which
do
not
give rise to a
justiciable issue.
It
follows
that
for constitutional reasons there
can
be
no
review
by
a
court
on
the
merits of these decisions, unless those criteria
are
changed
appropriately
so
as
to raise justiciable issues. Achange of this character is
both
undesirable
and
inconceivable, except
perhaps
in
particular cases.
19
The Kerr Committee defined "justiciable issues
II
as issues which fall to be resolved
"
upon
grounds
that
are
defined
or
definable, ascertained or ascertainable, involving
11
12
13
14
15
16
17
18
19
liThe Kerr vision
of
a
system
ofadministrative review...
demonstrated
an
attachment
to
the
judicial
mode
of thinking
ll
:DPearce, "The Fading of
the
Vision Splendid? Administrative
Law: Retrospect
and
Prospect" (1989) 53
Canb
Bull
Pub
Admin 15
at
18.
Neither
the
Kerr Committee
nor
the
Bland Committee
used
this
term
to describe
the
body
they
proposed.
With
the
possible exception of dealing
with
certain legal issues (see section III.1(1) below.
For
discussion see AHall, "Judicial Power,
the
Duality of Functions
and
the
Administrative
Appeals Tribunal
ll
(1994) 22 FLRev 13
at
41-45; ECampbell, "The Choice Between Judicial
and
Administrative Tribunals
and
Separationof Powers" (1981) 12 FLRev 24
at
46-48.
Kerr Report,
para
249; Bland Report,
para
180.
Like inferior courts,
the
AAT is also amenable to judicial review.
And
this seems to
have
been
the
Government's
intention: HReps Deb 1975, Vol 93, 1187.
Kerr Report,
para
228
and
recommendation16.
Ibid,
paras
247, 293.
The
requirement
that
judges
of
Chapter
III courts
be
lawyers is
statutory,
not
constitutional: eg, Federal
Court
of
Australia Act1976, s6(2).
Kerr Report,
para
68. See also
para
227.
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