Judicial review and merits review: comparing administrative adjudication by

courts and tribunals

Administrative adjudication is a mechanism for resolving disputes between citizens1 and the
government that arise from decisions of officials and agencies. There are two main modes of
administrative adjudication: judicial review and (adopting the Australian term) merits review.
Judicial review, as its name implies, is conducted by traditional courts. Merits review is
conducted by bodies that are commonly referred to – in the common law world outside the US,
anyway – as administrative ‘tribunals. The term ‘tribunal’ is used in various senses; but for
present purposes, it suffices to define a tribunal as an adjudicatory body that is not a court. In
the US, the equivalent institution is the independent or executive agency and, in particular,
officials within agencies whose allotted task is adjudication in the sense in which that term is
used in the Administrative Procedure Act 1946 (APA). Such officials are known as
administrative law judges (ALJs) and administrative judges (AJs) – the former, unlike the
latter, being appointed under the APA. For convenience, I will often use the term ‘tribunal’ to
refer to such officials as well. Whereas the term ‘judicial review’ expressly refers to the
institution that conducts the review, the term ‘merits review’, by contrast, refers to the basis of
review. However, the former also implicitly refers to the grounds of review that define its basis;
and the grounds of review are the primary concern of this chapter. We analysed the influence
of the branch to which the court belongs, the procedures of appointment for judges, the length
of a judge’s term in office, and the protection of judges’ salaries over their actual decisions.
We classified decisions into two broad categories: pro-government decisions and case
dismissals. The results point toward evidence that the branch to which the court belongs, the
length of a judge’s term in office and governor intervention in the appointment of judges affect
judges’ decisions. To summarize, because of the strong principle of separation of judicial
power that the High Court has read out of (or into) the Australian Constitution, there is a
categorical distinction between judicial review and merits review. This distinction is clearest
in the procedural and remedial elements of merits review. The archetypal judicial review
remedy is setting aside and remittal, while the archetypal merits review remedies are varying
the decision and making a substitute decision. In dispensing the characteristic merits review
remedy, the reviewer exercises by proxy powers available to the primary decision-maker,
whereas in dispensing the characteristic judicial review remedy, courts exercise inherent
judicial power. This chapter offers an overview of what 'tribunals' do to provide a complement
to current, widely established, and theorized explanations of what courts do while engaged in
procedural decision-making 'judicial examination.' I chose the Australian definition of 'merit
examination' as the starting point for this initiative, since Australian federal law represents a
far more clear and comprehensive description of the non-judicial evaluation of administrative
decision-making than either UK or US laws. In Australia, the judges are categorically separate
from the judiciary, because what the judges do – the examination of evidence is categorically
different from what the judiciary do – the analysis of justice – as they encounter difficulties. In
In Indian perspective, administrative Tribunals are needed, as they discharge their functions
more rapidly, more cheaply more efficiently than ordinary Courts, possess greater technical
knowledge and fewer prejudices against the Government, give greater lead to the social
interests involved, and decide disputes with conscious effort at furthering social policy
embodied in the legislation.