The Nature of Merits Review: A Bold Vision Realised in the Administrative Appeals Tribunal
| Author | Margaret Altars |
| Published date | 01 June 2013 |
| Date | 01 June 2013 |
| DOI | http://doi.org/10.22145/flr.41.2.1 |
| Subject Matter | Article |
THE NATURE OF MERITS REVIEW: A BOLD VISION
REALISED IN THE ADMINISTRATIVE APPEALS TRIBUNAL
Margaret Allars*
ABSTRACT
This article examines the nature of merits review, focusing upon the Administrative
Appeals Tribunal. Some forms of merits review are less than full merits review and
some are hybrid merits review. It is contended that a proper appreciation of merits
review may expose misperceptions concealed in some claims that judicial review
resembles merits review.
INTRODUCTION
In 2009 the High Court of Australia was presented with its first opportunity to ex amine
the nature of the function of the pre-eminent tribunal in Australia: the A dministrative
Appeals Tribunal ('AAT'). By that time the AAT was vested with the most diverse
jurisdiction and managed the highest volume of litigation of any merits review
tribunal in Australia. Yet in the 34 years of its operation the occasional appeals which
found their way to the Court had not raised the question. This is surprising, given the
uninformative nature of the key statutory provision describing the AAT's function. In
Shi v Migratio n Agents Registration Authority
1
the Court was content to leave the
existing conception of the AAT's merits review function unscathed. That c onception
had emerged quickly in the late 1970s, when the Federal Court outlined its framework
and the AAT itself forged the substance. Departure from the existing conception of its
function would undoubte dly have been detrimental to the continued success of the
AAT. The AAT represents the realisation of a bold vision for a key part of the structure
of the system of review of administrative dec isions in Australia. Yet its merits review
function deserves closer analysis, lest misconceptions as to its nature provide a flawed
platform for critique of the function of courts in judicial review.
Merits review in its ordi nary and full form is a de n ovo exercise of administrative
power. It is readily distinguished from judicial review and from the panoply of other
types of 'review' or 'appeal' conducted in tribunals and in the appellate jurisdictions of
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* Member of the NSW Bar; Professor, Faculty of Law, The University of Sydney. An earli er
version of this article was presented as a paper at the Joint Administrative Appeals
Tribunal and Law Council of Australia Seminar on the Administrative Appeals Tribunal,
Melbourne, 25 June 2009.
1
(2008) 235 CLR 286.
198 Federal Law Review Volume 41
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courts. Nonetheless, as was argued in Shi, specific sta tutory limitations upon the AAT's
function may in pa rticular areas of its jurisdiction dilute its role to something less than
full merits review. With a view to capturing the true essence of meri ts review, this
paper examines the historical and contemporary conception of merits review in the
AAT.
Part I outlines important differences in the early approaches to the AAT 's function
and how they were resolved. With the benefit of that historical perspective, Part II
describes the significance of the articulation in Shi of the nature of merits review. While
merits review sh ould not to be understood in a purist sense, some types of review are
so far removed from full merits review that they deserve to be described as hybrid
merits review, an example being given in Part III. Finally, with the nature of full merits
review exposed, Part IV offers a preliminary comparison of full merits review wit h
judicial re view, with a view to detecting misconceptions concealed in any claim that
judicial review in Australia resembles merits review.
I EARLY CONCEPTIONS OF THE FUNCTION OF THE AAT
On 3 May 1979 the same Full Federal Court bench delivered Drake v Minister for
Immigration and Ethnic Affairs
2
and Collector of Customs (New South Wales) v Brian Lawlor
Automotive Pty Ltd.
3
Sections 25(1)(2) and (4) of the Administrative Ap peals Tribunal Act
1975 (Cth) ('AAT Act') provided the framework for jurisdiction to be vested in the A AT.
By s 25(1)(a) another enactment could provide that applications may be made to the
AAT for review of decisions made in exercise of powers conferred by that e nactment.
4
Section 25 (4) provided that the AAT had power to review any decision in respect of
which application was made to it under any enactme nt. Section 43(1) was not a source
of jurisdiction of the AAT, but rather set out the powers available t o the AAT in
exercising its jurisdiction.
5
Brian Lawlor was concerned with a technical but nonetheless
central question concerning the construction of a provision vesting t he AAT with
jurisdiction.
6
However Drake (No 1) raised the fundamental issue as to the nature of the
AAT's function in exercising the power conferred upon it pursuant to s 43(1) of the
AAT Act: '[f]or the purpose of reviewing a decision [to] exercise all the power s and
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2
(1979) 2 ALD 60 ('Drake (No 1)').
3
(1979) 2 ALD 1 ('Brian Lawlor').
4
When enacted in 1975 the AAT Act vested certain jurisdiction immediately in the AAT, by
s 26 and the Schedule to the AAT Act, which set out various classes of reviewable decisions.
By 1990 s 26 and the Schedule had been repealed, the favoured approach now being to
describe reviewable decisions in the other enactment which, coupled with ss 25(1)(a) and
25(4), vested jurisdiction in the AAT. Section 26 now deals with other matters.
5
Comcare v Burton (1998) 50 ALD 846, 850 [4] (Finn J) (affirmed in Lees v Burton (1999) 56
ALD 84); Australian Securities and Investments Commission v Donald (2003) 136 FCR 7, 16 [32]
(Kenny J).
6
A decision which is ultra vires, and therefore a nullity, is as a matter of fact a purported
decision which meets the requirement in s 25 of the AAT Act that there be a 'decision' made
in exercise of a power conferred by another enactment.
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