The Function of Judicial Review and Merits Review

 The High Court’s jurisdiction under s 75(v) of the Constitution, and

            the supervisory jurisdiction of state Supreme Courts to review the

            decisions of inferior courts and tribunals for jurisdictional error,

            could not be excluded or eroded if the legislature saw fit to do so.

            In contrast, a right to merits review exists only by virtue of

            legislation.  That right could be abolished or eroded if the legislature

            saw fit to do so.[1]

Introduction

While it is a rudimentary principle of administrative law that a court undertaking Judicial review of an administrative decision is concerned exclusively with the legality of the decision and not with its merits,[2] the High Court’s demand to reassert this principle through recent decisions, suggests that the distinction is not always clear and further it is not always observed by lower courts, eroding the balance of the functions between the courts and tribunals.

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To critically evaluate whether Merits review, and Judicial review remain distinct or if the balance of the functions is being eroded[3], this essay will examine the objectives of both functions and demonstrate through an analysis of authorities, where the functions are most often confused or indistinct. Secondly, this essay will consider the impact of modern grounds for Judicial review by discussing how their introduction draws a fine line between issues of law and the merits of a case. Lastly, this essay will evaluate the practical significant of Merits review in Australia and come to conclusion as to whether it still achieves the objectives of administrative law in its own right.

The Function of Judicial Review and Merits Review

In Australia, the functions of Judicial review and Merits review are anchored in the Constitution.[4] Put simply, the function of Judicial review[5] as expressly recognised in Argos Pty Ltd v Corbell[6] is to promote the rule of law by scrutinising the lawfulness of a decision.[7] Judicial review promotes good decision-making and can promote law reform.[8] In addition to public-interest purposes, Judicial review is often the ultimate means by which an individual can seek protection of their rights and obtain redress for wrongs committed against them.[9]

Alternatively, the function of Merits review is to enable a review of all aspects of the challenged decision, including the finding of fact, with a long-term view to improve the quality and consistency of decisions by primary decision markers.[10] Merits review is often the means by which an individual can ensure that the openness and accountability of decisions made by government are enhanced, however the right to seek Merits review is dependent on relevant legislation as there is no right to review under common law.[11]

The Constitutional basis for the distinction between Judicial review and Merits review, is the directive that Federal Courts cannot engage in Merits review because to do so would be to exercise non-judicial power and therefore would be in breach of the Boilermaker’s principle outlined in R v Kirby; Ex Parte Boilermakers’ Society of Australia[12], which clarifies the separation of powers doctrine in Australia.[13]

The limits on Judicial review arising from the law/merits distinction and the importance of upholding the separation of powers doctrine to maintain the distinction between Judicial review and Merits review, is evidenced in the judgment of Brennan J in Attorney-General (NSW) v. Quin[14], where he states:

“The absence of adequate machinery, such as an Administrative Appeals Tribunal, to review the merits of administrative acts and decisions may be lamented in the jurisdictions where the legislature has failed to provide it, but the default cannot be made good by expanding the function of the courts. The courts – above all other institutions of government – have a duty to uphold and apply the law which recognizes the autonomy of the three branches of government within their respective spheres of competence and which recognizes the legal effectiveness of the due exercise of power by the Executive Government and other repositories of administrative power…If judicial review were to trespass on the merits of the exercise of administrative power, it would put its own legitimacy at risk. . . . If the courts were to postulate rules ostensibly related to limitations on administrative power but, calculated to open the gate into the forbidden field of the merits of its exercise, the function of the courts would be exceeded”.[15]

Modern Grounds for Judicial Review

While the functions of both Judicial review and Merits view are well defined, there are several explanations evidencing why their distinction can be blurred, namely the problems produced by some of the modern grounds of judicial review which can strike a fine balance between issues of law and the merits of the particular decision.

The development of jurisdictional error[16] for example, has resulted in the expansion of available grounds of review under the Administrative Decisions (Judicial Review) Act[17].  The once limited scope of the grounds for review was originally the foundation used to identify distinctions between the lawfulness of a decision and the merits. The introduction of such grounds of review as, taking into account irrelevant considerations, failing to take into account relevant considerations, acting for an improper purpose, or acting unreasonably creates potential for Courts to undertake a veiled merits review of a case. Procedural fairness and the no evidence rule also have a greater inclination to blur the line between legality and merits and provide tools by which a court can re-examine aspects of the merits of a decision.[18]

The main difference between Courts and review tribunals, and between legality and merits, is in their respective treatment of facts.[19] Some grounds of Judicial review can be raised in an attempt to gain a Merits review of these functions by arguing that the decision-maker acted unreasonably, that the decision maker made an incorrect finding of fact upon which his or her jurisdiction depended, or that certain evidence was a relevant consideration that the decision maker failed to take into account. The grounds of Unreasonableness and relevant/irrelevant considerations will be reviewed below in further detail to illustrate how modern grounds of review act to erode the functions of Judicial review and Merits review.

Unreasonableness

The ground of unreasonableness, as defined by the case of Wedensbury[20], illustrates where the functions of Judicial review and Merits review can be easily blurred due to the relativity and subjectivity of the concept of ‘unreasonableness’ itself. Often the values and attitudes of the individual decision maker will be applied to the decision, which blurs the lines between legality and merits, i.e. what is reasonable to one person is not to another[21]. This is highlighted in Gleeson CJ and McHugh J’s statement in Eshetu[22]where they state that:

 “the characterisation of somebody’s reasoning as illogical or unreasonable may merely be an emphatic way of expressing disagreement with it and may be applied to legal as well as non-legal errors of reasoning”. [23]

As a result, there remains significant disagreement as to whether a decision is “unreasonable” as defined by Wednesbury, or irrational to the point of being unlawful.[24]

In Australia, Courts have taken a very cautious approach when looking at the issue of unreasonableness, as evidenced by the decision of Botany Bay City Council v. Minister for Transport[25].  This case saw a number of Councils challenge the decision by the Minister for Transport to give a direction to Airservices Australia to implement a Long-Term Operating Plan, and a decision by the Minister for the Environment to give an exemption from the statutory requirement to prepare an environmental impact statement. The main issue raised by the councils was an allegation that the Ministers had failed to consider the differential impact of aircraft noise across different areas. Finn J rejected that relevant decisions were unreasonable or had failed to take into account relevant considerations, commenting that the applicants had effectively sought to engage in merits review of the fairness of the noise redistribution plan:

“It is important to emphasise at the outset that the ADJR Act’s s 5(2)(g) ‘so unreasonable’ ground is one that is ‘extremely confined’[26] [and] does not provide a mask for merits review…it is not sufficient to show that a different conclusion or course of action could reasonably have been arrived at or taken.”[27]

Relevant/irrelevant considerations:

Grounds of review by way of insufficient weight being given to a relevant consideration further illustrates where the functions are most often indistinct due to the difficulty in characterising these cases. As a result, Courts must err on the side of caution when using as a ground for quashing the decision-maker’s decision as doing so often borders on Merits review.[28]

In Minister for Aboriginal Affairs v Peko-Wallsend Ltd[29] Mason J stated: 

“It follows that in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power.”

The view that questions of fact are determinable by way of the subjective thought processes of the decision-maker, not the objective or external assessment of the court is further confirmed in Minister for Immigration & Multicultural Affairs v Yusuf.[30]

Does Merits Review still achieve the objectives of Administration Law?

The main objectives of Administrative law are to uphold the rule of law and protect the interests of the public as it interacts with government. While there is a strong argument to suggest that the functions of Judicial review and Merits review are being eroded due to modern grounds for review being too subjective, allowing decision makers to blur the boundaries of legality/merits, research suggests that Merits review still plays a significant role in the system of administrative justice and is favoured in Australian jurisdictions.[31]

The objective behind the development of the Administrative Appeals Tribunal, along with independent State and Commonwealth tribunals was seen by the Kerr Committee in 1971 as key to correcting ‘error or impropriety in the making of administrative decisions affecting a citizen’s rights’.[32] The presence of merits-based review mechanisms provides an ‘inquisitorial’[33], non-adversarial function that substitutes the ‘correct or preferable’ decision and does not merely set a flawed decision aside and send it back for reconsideration.[34]

The limits of an adversarial system such as Judicial review is illustrated by former Chief Justice Masons where he states:

 “[w]ithin the adversarial system, … the function of the courts is not to pursue the truth but to decide on the cases presented by the parties.”[35]

While Merits review tribunals share many of the features of a Court, including adherence to the rules of procedural fairness, impartial decision-making and the provision of written reasons, the inquisitorial function of Merits review allows tribunals to better investigate the truth and to take a wider variety of considerations into account when making decisions. Therefore, the limited recourse to Judicial review suggests that maintenance of the rule of law, and good governance more generally, will only continue to be facilitated by the availability of the function of merits review.

Although Australian Merits review tribunals have inquisitorial functions, there is evidence to suggest that in many cases they have failed to embraced the “inquisitorial mode of operation”[36] and appear to be run proceedings much like adversarial proceedings.  Forgie DP of the AAT has suggested that the AAT’s proceedings may often appear to be indistinguishable from those of a Court, even though their functions are significantly different.[37] This can cause disconnect between the function of merits review tribunals, and the procedures they typically adopt which has contributed to the erosion of its function.

While there are elements of disconnect with respect to Merits review proceedings, it is clear that Merits review still has an important role to play in ensuring the observance of the rule of law, consistent, rational and transparent decision making, and thus of good governance generally which meets the objectives of administrative law in ways judicial review cannot.

The Australian Law Reform Commission, in its Report “Managing Justice: A Review of the Federal Civil Justice System”, published in 2000, further illustrates the importance contribution merits review has to meeting the objectives of administrative law stating:

“public interest ‘wins’ just as much as the successful applicant [in merits proceedings] because correct or preferable decision making contributes, through its normative effect, to correct and fair administration and to the jurisprudence and policy in the particular area”. [38]

If the objective of administrative law remains unchanged, and it continues to encompass the desire for a review system which promotes lawfulness, fairness, openness, participation and rationality, Merits review must still exist in its own right in order to achieve this[39] given Courts have no jurisdiction simply to cure administrative injustice. Promoting administrative injustice is the ethos of Merits review,[40] and is consistently echoed in the majority of statues which establish tribunals for Merits review.

Conclusion:

After close examination of the functions of Judicial review and Merits review, it can be concluded that both functions are an essential means by which individuals can challenge administrative action and maintain the accountability of the executive government.  Without the function of Merits review, individuals will be unable to benefit from an assessment of a case that leads to both a legally correct and preferable outcome.[41]

The introduction of modern grounds for review appears to be the contributing factor which leads to the erosion of the functions by the courts and tribunals. The subjective nature of modern grounds of review such as unreasonableness and irrelevant considerations has led to the High Court needing to reassert the distinction of the functions.

In seeking to uphold the purpose and functions of Judicial review and Merits review in their own right, including the maintenance of the rule of law and separation of powers, statutory reform of the modern grounds for review is essential in achieving this.

Bibliography

A. Articles

• AM Gleeson, ‘Performing the Role of the Judge’ (1998) 10 Judicial Officers Bulletin 57, 58 Mason, above n 32, 5–14.
• Anthony E Cassimatis and Peter Billings, ‘Statutory Judicial Review in Australia: A Comparative Analysis of the Australian Capital Territory, Queensland and Tasmanian Schemes’ (2013).
• Chris McGrath, ‘Myth Drives Australian Government Attack on Standing and Environmental “Lawfare”’ (2016) 33 Environmental and Planning Law Journal 3.
• David Bennett QC, Commonwealth Solicitor-General, ‘Balancing Judicial Review and Merits Review’ (September 2002) 53 Admin Review 5.
• Janine Pritchard, ‘The Rise and Rise of Merits Review: Implications for Judicial Review and for Administrative Law’ (2015) 79 AIAL Forum 14.
• Justice M Kirby, ‘Administrative Review on the Merits: The Right or Preferable Decision’ (1980) 6 Mon.U.L.R. 171, at 172-173.
• Robin Creyke, ‘Judicial Review and Merits Review: Are the Boundaries Being Eroded?’ (2017) 45(4) Federal Law Review 627.

B. Cases

• Anisminic Ltd v. Foreign Compensation Commission [1969] 2 AC 147.
• Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development [2014] HCA 50.
• Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223.
• Attorney-General (NSW) v Quin (1990) 170 CLR 1.
• Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247.
• Bushell v Repatriation Commission (1992) 175 CLR 408.
• Friends of Hinchinbrook Society Inc v Minister for Environment (No 2) (1997) 69 FCR 28
• Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24; 60 ALJR 560; 66 ALR 299.
• Minister for Immigration and Citizenship v SZMDS (2010) 266 ALR 367.
• Minister for Immigration and Ethnic Affairs v. Guo (1997) 191 CLR 559 at 599-600.
• Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611.
• Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30.
• Tascone and Australian Community Pharmacy Authority and Katsavos and Katsavos and Kouzas (Parties Joined) [2011] AATA 724 at [120].
• University of New South Wales v PC [2008] NSWADTAP 26.

C. Legislation

• Administrative Decisions (Judicial Review) Act 1977 (Cth)
• Administrative Appeals Tribunal Act 1975 (Cth)
• Commonwealth Constitution
• Judicial Review Act 1991 (Qld)

D. Reports

• Administrative Review Council, Federal Judicial Review in Australia, Report No 50 (2012)
• Australian Law Reform Commission, Beyond the Doorkeeper: Standing to Sue for Public Remedies, Report No 78 (1996).
• Administrative Review Council, Better Decisions: Review of Commonwealth Merits Review Tribunals (1995), paras 2.2-2.3, 2.54-2.55.
• Australian Government.  Attorney General’s department. “Overview of the Commonwealth System of Administrative Review”. https://www.arc.ag.gov.au/Aboutus/Pages/OverviewoftheCommonwealthSystemofAdminReview.aspx
• Commonwealth Administrative Review Committee Report, Parliamentary Paper No 144 of 1971.

[1] Janine Pritchard, ‘The Rise and Rise of Merits Review: Implications for Judicial Review and for Administrative Law’ (2015) 79 AIAL Forum 14, 20.

[2] As per Bennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35–36.

[3] Robin Creyke, ‘Judicial Review and Merits Review: Are the Boundaries Being Eroded?’ (2017) 45(4) Federal Law Review 627, 628.

[4] Chapter III, Australian Constitution.

[5] As defined under s39B of the Judiciary Act 1903 (Cth); s75(v) Australian Constitution and the Administrative Decisions (Judicial Review) Act 1977 (Cth).

[6] Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development [2014] HCA 50.

[7] Ibid at 75; Anthony E Cassimatis and Peter Billings, ‘Statutory Judicial Review in Australia: A Comparative Analysis of the Australian Capital Territory, Queensland and Tasmanian Schemes’ (2013) 23 Journal of Judicial Administration 73, 73; defined in s5 of the Administrative Decisions (Judicial Review) Act 1977(‘AD(JR) Act’).

[8] Chris McGrath, ‘Myth Drives Australian Government Attack on Standing and Environmental “Lawfare”’ (2016) 33 Environmental and Planning Law Journal 3, 5.

[9] Ibid.

[10] Administrative Review Council, Better Decisions: Review of Commonwealth Merits Review Tribunals (1995), paras 2.2-2.3, 2.54-2.55; Justice M Kirby, ‘Administrative Review on the Merits: The Right or Preferable Decision’ (1980) 6 Mon.U.L.R. 171, at 172-173. See, for example, the powers of the AAT conferred by s.43(1) of the Administrative Appeals Tribunal Act 1975.

[11] Australian Government.  Attorney General’s department. “Overview of the Commonwealth System of Administrative Review”. https://www.arc.ag.gov.au/Aboutus/Pages/OverviewoftheCommonwealthSystemofAdminReview.aspx, accessed on 14 Jan 2019.

[12] R v Kirby; Ex parte Boilermakers’ Society of Australia [1956] HCA 10, (1956) 94 CLR 254.

[13] Ibid; Janine Pritchard, ‘The Rise and Rise of Merits Review: Implications for Judicial Review and for Administrative Law’ (2015) 79 AIAL Forum 14, 20.

[14] [1990] HCA 21; 170 CLR 1; 64 ALJR 327; 93 ALR 1; 18 ALD 77; 33 IPR 263; 33 IR 263.

[15] See judgement by Kirby J in Minister for Immigration and Ethnic Affairs v. Guo (1997) 191 CLR 559 at 599-600.

[16] Anisminic Ltd v. Foreign Compensation Commission [1969] 2 AC 147.

[17] 1977.

[18] David Bennett QC, Commonwealth Solicitor-General, ‘Balancing Judicial Review and Merits Review’ (September 2002) 53 Admin Review 5.

[19] Ibid.

[20] Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223; ss5(2)(g) and 6(2)(g) of the AD(JR) Act

[21] As per J Greene 6 [1948] 1 K.B. p223, at p230.

[22] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611.

[23] Ibid at [40].

[24] Minister for Immigration and Citizenship v SZMDS (2010) 266 ALR 367

[25] (Federal Court, unreported, Finn J, 3 November 1998)

[26] Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36

[27] Friends of Hinchinbrook Society Inc v Minister for Environment (No 2) (1997) 69 FCR 28, at 59-65

[28]Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 627 per Gleeson CJ and McHugh J.

[29] [1986] HCA 40; 162 CLR 24; 60 ALJR 560; 66 ALR 299

[30] (2001) 180 ALR 1 at 22 per McHugh, Gummow and Hayne JJ

[31]  David Bennett QC, Commonwealth Solicitor-General, ‘Balancing Judicial Review and Merits Review’ (September 2002) 53 Admin Review 5.

[32] Commonwealth Administrative Review Committee Report, Parliamentary Paper No 144 of 1971, para 354.

[33] Bushell v Repatriation Commission (1992) 175 CLR 408.

[34] University of New South Wales v PC [2008] NSWADTAP 26 at [50].

[35] AM Gleeson, ‘Performing the Role of the Judge’ (1998) 10 Judicial Officers Bulletin 57, 58 Mason, above n 32, 5–14.

[36] Mark Smyth, “Inquisitorial Adjudication: The Duty to Inquire in Merits Tribunals,” 34 Melbourne University Law Review 230 at 238.

[37] Tascone and Australian Community Pharmacy Authority and Katsavos and Katsavos and Kouzas (Parties Joined) [2011] AATA 724 at [120].

[38] Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System (ALRC 89), Australian Government Publishing Service, Canberra, 2000, p 758 [9.11].

[39] Ibid.

[40] Attorney General (NSW) v Quin (1990) 170 CLR 1, Brennan J at 35-36

[41] Janine Pritchard, ‘The Rise and Rise of Merits Review: Implications for Judicial Review and for Administrative Law’ (2015) 79 AIAL Forum 14, 20.