Week 3 Lecture Notes

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Lecture NotesWhat is Merits Review?*Merits review is concerned with whether an administrative decision or action under reviewwas the " correct or preferable" one in all the circumstances.*After taking the necessary steps to access relevant information through a statement ofreasons or a FOI application, merits review is usually the next step that a person will take ifthey 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 theoriginal decision maker". This means that merits review bodies can make decisions onquestions of fact, discretion and law by:,;1Finding new facts°Making new inferences of facts and hear new evidence°Re-exercising discretion and make another, more preferable decision to the one madeby the original decision maker°Providing a new interpretation of the relevant law•Merits review is used by applicants to challenge executive executive decision-makingmuch more often than judicial review.■It is also more flexible than judicial review as it allows applicants to raise a broader rangeof arguments than is possible in judicial review.■The existence, characteristics and powers of a body exercising merits review depend onthe specific legislation which establishes the body.Merits Review vs Judicial ReviewMerits ReviewJudicial ReviewOrigin: LegislationOrigin: Common LawNo universal form — depends onOccurs in Courtslegislation that confers review power onthe particular tribunal/review body

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Concerned with facts, discretion(choices open to the decision-maker)and law (how has the decision-makerapplied the relevant law) (i.e., correct orpreferable decision)Concerned with the legality of decisions —whether or not there is a legal problem withthe way the original decision-maker madethe decisionCan be cheap and quickNot concerned with factual problems orunfavourable exercises of discretionCan involve other professionals (e.g.,doctors, social workers, public servants,experts) as decision makers sitting onthe review bodySlow, expensiveInvolves lawyers•The key to understanding and distinguishing between merits review and judicial reviewlies in analysing what they do. This requires an understanding of the elements of executivedecision making:0Questions of Fact$Questions of Discretion0Questions of LawQuestions 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 facts5Inferences from fact

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*Both of these types of factual findings relate to the available evidence with the corequestion being —does the evidence support the existence of the factual findings of theoriginal decision-maker?‘There is no error of law simply making awrongfindingoffact.Therefore,anappellant cannot supplement the recordbyadducing freshevidencemerelytodemonstrate an error of fact.’Waterford v Commonwealth(1986) 163CLR 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 anapplicant to go to court and make a judicial review application because the originaldecision-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 makingprocess, 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 bea different result achieved by the merits review body goes towards the merits of thedecision rather than the legality.Questions of Law*Questions of law may involve statutory interpretation —Hope v Bathurst City Council(1980)144 CLR 1.yInterpretation of statutory terms may be an important way to immediately see if theoriginal decision-maker has understood the statutory context that they're working in

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