Merits review compared with judicial review in Australia
1. Overview: Merits Review vs Judicial Review
Merits Review
What it is: Merits review involves a decision-maker (usually an administrative tribunal or a specialized statutory body) reconsidering a matter afresh, including the facts, law, and policy. It’s about whether the correct or preferable decision has been made.
Purpose: To substitute the original decision with a new decision based on the merits of the case.
Scope: Can consider evidence afresh, weigh facts, and exercise discretion.
Example Bodies: Administrative Appeals Tribunal (AAT), Migration Review Tribunal (MRT), Social Security Appeals Tribunal.
Nature: Substantive review (examines the substance of the decision).
Judicial Review
What it is: Judicial review is a supervisory review carried out by courts to ensure decisions are made according to law. It focuses on the legality, not the merits.
Purpose: To ensure that the decision-maker has acted within the scope of their legal power and followed proper procedures.
Scope: Limited to legality — procedural fairness, jurisdictional errors, improper purpose, irrationality, or failure to comply with statutory requirements.
Outcome: Courts can quash, remit, or declare decisions unlawful but do not replace the decision.
Nature: Procedural and jurisdictional review.
2. Key Differences
| Aspect | Merits Review | Judicial Review |
|---|---|---|
| Who decides? | Administrative tribunal | Courts (Federal/State) |
| Focus | Correct or preferable decision | Lawfulness and procedural fairness |
| Evidence | New evidence can be considered | No new evidence, review on record |
| Outcome | New decision can be made | Decision quashed or upheld |
| Scope | Broader (fact and law) | Narrow (law and procedure only) |
| Remedy | Substitute decision | Quash or remit decision |
3. Case Law Illustrations
Case 1: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Issue: Judicial review of a decision under the Migration Act.
Significance: Confirmed that jurisdictional error can be a ground for judicial review even when statute seeks to oust judicial review.
Key Point: Courts have an inherent supervisory role; decisions beyond jurisdiction are reviewable. Highlights limits of judicial review.
Relevance: Shows judicial review protects legal boundaries of decision-making.
Case 2: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
Issue: Whether a migration decision was legally unreasonable.
Significance: High Court outlined grounds for judicial review, including irrationality/unreasonableness.
Key Point: Judicial review looks for legal errors like irrationality but does not re-weigh evidence (which merits review does).
Relevance: Clarifies the boundaries of judicial review focused on legality rather than merits.
Case 3: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Issue: Review of the Refugee Review Tribunal’s decision.
Significance: Held that the Tribunal has to consider all relevant matters but has discretion on how it weighs evidence.
Key Point: Tribunal’s decision is merits review — courts won’t interfere unless there is an error of law or jurisdictional error.
Relevance: Demonstrates how merits review tribunals exercise broad discretion and courts defer unless legal error.
Case 4: Kioa v West (1985) 159 CLR 550
Issue: Procedural fairness in administrative decision-making.
Significance: Established that decision-makers must observe procedural fairness (natural justice).
Key Point: Judicial review protects against failure of procedural fairness; merits review tribunals must also comply but can reconsider merits.
Relevance: Highlights the procedural safeguards that both reviews enforce but judicial review enforces more strictly on legality.
Case 5: Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245
Issue: Whether the Human Rights Commission’s decisions were subject to judicial review.
Significance: Held that administrative tribunals exercising judicial power must comply with Chapter III of the Constitution.
Key Point: Distinction between judicial and administrative powers and the limits of review mechanisms.
Relevance: Demonstrates constitutional limits on administrative bodies, relevant to both judicial and merits review.
4. Summary
Merits review allows a tribunal or body to reconsider decisions fully and make a new decision based on all evidence and policies.
Judicial review limits itself to legality and process, ensuring decisions are lawful, reasonable, and fair but without re-deciding the facts.
The cases above establish key principles about the scope, application, and limits of both types of review, demonstrating Australia’s balanced approach to administrative law.
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