Week 3 Lecture Notes
Detailed notes on merits review in administrative law, covering its distinction from judicial review, tribunal powers, fact/law/discretion questions, and review types (internal, specialist, generalist). Includes key cases and statutory references.
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Lecture Notes
What is Merits Review?
* Merits review is concerned with whether an administrative decision or action under review
was the " correct or preferable " one in all the circumstances.
* After taking the necessary steps to access relevant information through a statement of
reasons or a FOI application, merits review is usually the next step that a person will take if
they are unhappy with a decision my an executive agency.
■ Merits review takes place in non-judicial settings such as:
* Internal review by the agency itself; or
° External review by a tribunal or board of review
• Merits review bodies can remake decisions, and effectively " stand in the shoes of the
original decision maker ". This means that merits review bodies can make decisions on
questions of fact, discretion and law by:
,;1 Finding new facts
° Making new inferences of facts and hear new evidence
° Re-exercising discretion and make another, more preferable decision to the one made
by the original decision maker
° Providing a new interpretation of the relevant law
• Merits review is used by applicants to challenge executive executive decision-making
much more often than judicial review.
■ It is also more flexible than judicial review as it allows applicants to raise a broader range
of arguments than is possible in judicial review.
■ The existence, characteristics and powers of a body exercising merits review depend on
the specific legislation which establishes the body.
Merits Review vs Judicial Review
Merits Review Judicial Review
Origin: Legislation Origin: Common Law
No universal form — depends on Occurs in Courts
legislation that confers review power on
the particular tribunal/review body
What is Merits Review?
* Merits review is concerned with whether an administrative decision or action under review
was the " correct or preferable " one in all the circumstances.
* After taking the necessary steps to access relevant information through a statement of
reasons or a FOI application, merits review is usually the next step that a person will take if
they are unhappy with a decision my an executive agency.
■ Merits review takes place in non-judicial settings such as:
* Internal review by the agency itself; or
° External review by a tribunal or board of review
• Merits review bodies can remake decisions, and effectively " stand in the shoes of the
original decision maker ". This means that merits review bodies can make decisions on
questions of fact, discretion and law by:
,;1 Finding new facts
° Making new inferences of facts and hear new evidence
° Re-exercising discretion and make another, more preferable decision to the one made
by the original decision maker
° Providing a new interpretation of the relevant law
• Merits review is used by applicants to challenge executive executive decision-making
much more often than judicial review.
■ It is also more flexible than judicial review as it allows applicants to raise a broader range
of arguments than is possible in judicial review.
■ The existence, characteristics and powers of a body exercising merits review depend on
the specific legislation which establishes the body.
Merits Review vs Judicial Review
Merits Review Judicial Review
Origin: Legislation Origin: Common Law
No universal form — depends on Occurs in Courts
legislation that confers review power on
the particular tribunal/review body
Concerned with facts, discretion
(choices open to the decision-maker)
and law (how has the decision-maker
applied the relevant law) ( i.e., correct or
preferable decision )
Concerned with the legality of decisions —
whether or not there is a legal problem with
the way the original decision-maker made
the decision
Can be cheap and quick Not concerned with factual problems or
unfavourable exercises of discretion
Can involve other professionals (e.g.,
doctors, social workers, public servants,
experts) as decision makers sitting on
the review body
Slow, expensive
Involves lawyers
• The key to understanding and distinguishing between merits review and judicial review
lies in analysing what they do. This requires an understanding of the elements of executive
decision making:
0 Questions of Fact
$ Questions of Discretion
0 Questions of Law
Questions of Fact, Discretion and Law
* There is much academic commentary about the distinction between questions of fact,
discretion and law.
* Questions of fact = evidence available to the decision-maker and findings from evidence.
* Questions of discretion = concern the range of choices available to the decision-maker.
■ Questions of law = lawful powers of the decision-maker.
Questions of Fact
* Decision-maker has to make some findings about what the relevant facts are.
* Types of factual findings:
Primary facts
5 Inferences from fact
(choices open to the decision-maker)
and law (how has the decision-maker
applied the relevant law) ( i.e., correct or
preferable decision )
Concerned with the legality of decisions —
whether or not there is a legal problem with
the way the original decision-maker made
the decision
Can be cheap and quick Not concerned with factual problems or
unfavourable exercises of discretion
Can involve other professionals (e.g.,
doctors, social workers, public servants,
experts) as decision makers sitting on
the review body
Slow, expensive
Involves lawyers
• The key to understanding and distinguishing between merits review and judicial review
lies in analysing what they do. This requires an understanding of the elements of executive
decision making:
0 Questions of Fact
$ Questions of Discretion
0 Questions of Law
Questions of Fact, Discretion and Law
* There is much academic commentary about the distinction between questions of fact,
discretion and law.
* Questions of fact = evidence available to the decision-maker and findings from evidence.
* Questions of discretion = concern the range of choices available to the decision-maker.
■ Questions of law = lawful powers of the decision-maker.
Questions of Fact
* Decision-maker has to make some findings about what the relevant facts are.
* Types of factual findings:
Primary facts
5 Inferences from fact
* Both of these types of factual findings relate to the available evidence with the core
question being — does the evidence support the existence of the factual findings of the
original decision-maker?
‘There is no error of law simply making a
wrong finding of fact. Therefore, an
appellant cannot supplement the record
by adducing fresh evidence merely to
demonstrate an error of fact.’
Waterford v Commonwealth (1986) 163
CLR 54, at 77-8 (per Brennan J)
* There is no error or law in simply making a wrong finding of fact. It's not possible for an
applicant to go to court and make a judicial review application because the original
decision-maker has made an error of fact.
* Questions of fact go to the merits of the decision (generally).
Questions of Discretion
• The choices that have been made by the original decision-maker.
• The decision-maker has a range of choices available to them during the decision making
process, some of which may fall outside of permitted discretions they can exercise.
• Questions of discretion also go to the merits of the decision.
• Most of the time choices made by the original decision-maker and whether there might be
a different result achieved by the merits review body goes towards the merits of the
decision rather than the legality.
Questions of Law
* Questions of law may involve statutory interpretation — Hope v Bathurst City Council (1980)
144 CLR 1.
y Interpretation of statutory terms may be an important way to immediately see if the
original decision-maker has understood the statutory context that they're working in
question being — does the evidence support the existence of the factual findings of the
original decision-maker?
‘There is no error of law simply making a
wrong finding of fact. Therefore, an
appellant cannot supplement the record
by adducing fresh evidence merely to
demonstrate an error of fact.’
Waterford v Commonwealth (1986) 163
CLR 54, at 77-8 (per Brennan J)
* There is no error or law in simply making a wrong finding of fact. It's not possible for an
applicant to go to court and make a judicial review application because the original
decision-maker has made an error of fact.
* Questions of fact go to the merits of the decision (generally).
Questions of Discretion
• The choices that have been made by the original decision-maker.
• The decision-maker has a range of choices available to them during the decision making
process, some of which may fall outside of permitted discretions they can exercise.
• Questions of discretion also go to the merits of the decision.
• Most of the time choices made by the original decision-maker and whether there might be
a different result achieved by the merits review body goes towards the merits of the
decision rather than the legality.
Questions of Law
* Questions of law may involve statutory interpretation — Hope v Bathurst City Council (1980)
144 CLR 1.
y Interpretation of statutory terms may be an important way to immediately see if the
original decision-maker has understood the statutory context that they're working in
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