LLB358 Administrative Law

Merits review
Lecture roadmap

1. What is merits review?

2. Merits review in a tribunal – AAT – history and demise
3. Merits review in a tribunal – WASAT – our own ‘super tribunal’
4. Policy use in tribunals
Powers on review
Summary
1
What is merits review?
Internal versus external

Internal = the body which made the decision may have internal merits review rights
and processes  check the enabling Act / regs etc.

Our focus is external review:

• merits review as it is conducted by the WA State Administrative Tribunal (SAT) –
which exercises review powers very similar to those of the AAT.
• will also refer to the Commonwealth *Administrative Appeals Tribunal (AAT), a
central merits review tribunal (de novo). (*to be dismantled)
What is merits review?

Merits review is:

• a review of the facts and circumstances of the case (rather than the legality of
the decision),
• with the object of determining the correct and/or preferable decision.

Where merits review (or an 'appeal') is available, it will be stated in the relevant Act
List of enabling legislation (justice.wa.gov.au)
Fresh decision = review on the ‘merits’

Merits review of a decision = a new, fresh exercise of administrative power.

‘Standing in the shoes’ of original decision maker

NOT limited by what the original decision maker considered to be the relevant
policy, relevant facts or, relevant issues (section 27- SAT).

BUT… de novo versus rehearing?

2
Merits review in a tribunal

The Administrative Appeals Tribunal

Tribunals

Most tribunals are part of the executive

Decisions they make are reviewable by the courts (via judicial review).

It is vitally important you understand this!

JR = legality and not merits of the decision
Most of the cases you will read are Federal Court and High Court where the
court is conducting judicial review – often starting with an AAT decision.
Note about ALD cases
Tribunals: a history of the AAT

Established in 1976 – part of the ‘new administrative law’ reforms.

Kerr (1971) and Bland (1973) committees  recommended reforms, including a

general tribunal for merits review of administrative decisions.

AAT Act 1975 established the tribunal  now grown to a ‘super tribunal’ (2015
reforms).
Tribunals: why?

AAT formed to provide:

• Uniformity in appeal rights across different decisions and legal areas
• Independence and skill of tribunal members
• Central and better-resourced tribunal
• Consistent and simple code of procedure
• Right of appeal more visible
• Provision for ultimate determination in a superior court

(SAT is also a ‘super-tribunal’)

Tribunals: why?

In carrying out its functions, the AAT must pursue the objective of providing a
mechanism of review that:

(a) is accessible; and

(b) is fair, just, economical, informal and quick; and

(c) is proportionate to the importance and complexity of the matter; and

(d) promotes public trust and confidence in the decision‑making of the Tribunal.

Section 2A AAT Act

Tribunals: the end of the AAT

AAT is going, going (almost) gone...

6/12/2022
“The Australian Government has announced that the AAT will be
abolished and replaced with a new federal administrative review
body. The AAT will continue operating until the new federal
administrative review body is established. Once the new body is
established, any remaining cases will transition to the new body. ”

https://www.aat.gov.au/news/reform-of-the-federal-administrative-revi
ew-system
Tribunals: a new era?

"The Government has announced it will establish a new

system of administrative review that is user-focused,
efficient, accessible, independent and fair."
https://www.ndis.gov.au/news/8572-changes-administrative-
appeals-tribunal-aat#:~:text=The%20Government%20has%2
0announced%20it,new%20federal%20administrative%20revi
ew%20body

Sound familiar...?!
Tribunals: more info

https://www.aat.gov.au/about-the-aat/a-new-federal-administrative-review-body

Transition arrangements?
• Current cases will continue
• All previous decisions will remain valid and final
• Transfer outstanding cases to the new body

Administrative Review Tribunal Bill 2023 – Parliament of Australia (aph.gov.au)

3
Merits review in a tribunal

The State Administrative Tribunal WA (the ‘SAT’)

SAT

SAT WA:
• established in 2005
• previously many smaller tribunals and 'review boards' etc.

SAT has 2 jurisdictions:

• Merits review (review of administrative decisions made by
state administrators under state legislation)
• Original jurisdiction
(will come to this in a minute)
‘Members’

(The AAT President = Federal Court judge )

The SAT President = Supreme Court judge plus 2 Deputy Presidents (District Court
judges). (must be judges: s 107 and 108(3); s 112(3) SAT Act)

Each tribunal:
• legally trained members and
• specialist members
• others

Terms of appointment are for fixed periods (renewal possible).

‘Members’

Appointment of President – by the Governor on recommendation of the

Minister – s 108 SAT Act

Members (non-judicial) – s 117 SAT Act

Senior member – s117(4) – must be:

• Lawyer with at least 8 years’ experience OR
• Extensive knowledge/experience of matter in SAT jurisdiction
SAT – original jurisdiction

An original decision-making function in a few specialist areas

• e.g. guardianship and administration, equal opportunity, commercial
and strata title matters.

A disciplinary hearing function on behalf of a number of vocational

boards
• e.g. architects; medical practitioners; plumbers and real estate agents
SAT – review jurisdiction

SAT has a review function in relation to a wide range of administrative

decision making.

The SAT reviews administrative decisions made by:

• A public official (WA state) or
• Local government in WA
regarding personal or commercial activities.

It also reviews decisions made by regulatory bodies regarding licenses to

operate in an industry or profession.
As an aside: compare AAT – review
jurisdiction only
AAT may review:
A reviewable decision made pursuant to a Commonwealth enactment which is nonetheless
within the AAT’s jurisdiction  with some exclusions.

The AAT can only review:

• an identifiable 'decision' OR conduct (including a refusal to exercise power)
• which has been taken by an administrator
(section 3(3) – AAT Act).

Future or proposed decisions are not reviewable (Re Rennie (1979) 2 ALD 424).
‘Standing’ in Tribunals

The person, or organisation, who wants the decision reviewed by the tribunals must have
‘standing’:

generally-speaking must be a person whose interests are affected by the decision

The ‘enabling’ Act will state whether review in the SAT is available and to whom
(applicant/person affected by the decision).

 e.g. Fish Resources Management Act 1995 (WA)

Joining: a person may apply to be joined as a party to proceedings, which have been
initiated by another party (sections 36 & 38 SAT).
Parties in Tribunals

The parties to a proceeding before the Western Australian State Administrative

Tribunal (the ‘Tribunal’) are:
(1) the applicant;
(2) a person joined by the Tribunal as a party to the proceeding;
(3) a person intervening in the proceeding; and
(4) a person specified by the (WA) State Administrative Tribunal Act 2004 or an
enabling Act to be a party

‘Applicant’ and ‘enabling Act’ – definitions in s 3(1) Terms used

‘Interests’: Re McHattan and Collector of
Customs (NSW) (1977) 1 ALD 67
Facts:
McHattan was a customs agent who wanted to commence proceedings to
have a decision to impose customs duty on the imports of a client reviewed.
McHattan was facing a possible negligence action brought by the aggrieved
client regarding his advice!

Held:
McHattan was not a person whose interests were affected by the decision –
the potential negligence action was not material – he did not have an
'interest' directly or indirectly affected by the decision to impose duty on a
client's imports.
Parties in Tribunals: a note about ‘interests

“The relevant ‘interests’ do not have to be pecuniary interests or even specific legal
rights … However, a decision which affects the interest of one person directly may
[also] affect the interests of others indirectly.

Across the pool of sundry interest, the ripples of affection may widely extend.

The problem which is inherent in the language of the statute is the determination of
the point beyond which affection of interests by a decision should be regarded as
too remote for the purpose of s 27(1)”

(per President Brennan J Re McHattan and Collector of Customs (NSW) (1977) 1

ALD 67 at 69-70).
Organisations and companies?

In the AAT:

An organisation’s standing is determined by reference to its ‘objects

and purposes’ as stated in its constitution (s27(2) AAT)

BUT: an organisation cannot simply form or adopt / devise such

‘objects and purposes’ to acquire standing
i.e. this might occur after the original decision has been made (s27(3)
AAT)
Organisations and companies?

In the SAT:

No reference to organisations and companies.

Would need to follow case law and s 36 and s38 SAT Act:
• Section 36 parties
• Section 38 joining

For noting only: see also s 37 intervening – includes A-G as rep of the
State or any person ‘if the Tribunal thinks fit’.
Example: Re Phillips & Sec of Dept of Transport (1978) 1 ALD
341

Facts:
Aircraft Maintenance Engineers Association applied to be joined as a
party in review proceedings of a decision to refuse an aircraft
maintenance engineer’s licence.

Held:
The objects of the Association were the promotion and enforcement of
aircraft maintenance standards.
Process for review: statement of reasons

If:
the SAT has jurisdiction to review the decision, and
the applicant has standing,
the applicant may request a statement of reasons from the original
decision maker (s21 SAT).

A statement of reasons sets out the factual and legislative basis for the
decision, plus the decision maker’s reasons for making the decision
under review.
Process for review: exchange of docs and preliminary
conferences / mediation

• File given to applicant

• Possibly several preliminary conferences and/or mediation (ss 52 and
54 SAT Act).

The matter may be:

• decided 'on the papers',
• resolved at the prelim conference stage,
• referred to mediation, or
• taken to a final hearing.
Process for review: exchange of docs and preliminary
conferences / mediation

Example of SAT powers to control proceedings:

S32(4) May inform itself of any matter as it sees fit.

S32(7)
(a) Relevant material is disclosed
(b) Evidence or argument may be required in writing
(c) Limit time given to parties to present case
(d) Require docs to be served outside WA
(e) May adjourn
Onus and standard of proof??

This is not a court: there is no legal or persuasive

burden on either of the parties.
 In practice: may be an obligation re evidence
 e.g. see McHatten case and similar cases (to join)

Unless specific legislation requires otherwise, the civil

standard of proof, on the balance of probabilities,
applies.
Non-adversarial process

The parties are generally responsible for:

• preparing their own case,
• identifying witnesses, and
• preparing evidence in support of their submission(s).

The original decision maker:

• may or may not turn up, and
• is not supposed to act as an adversarial party.

*See the SAT Act – procedures support the non-adversarial nature e.g. mediation;
evidence rules do not apply.
Flexible procedure and legal
representation

Both the AAT & SAT are required to:

• hear a matter and make a decision expeditiously, and
• do so with as little formality or technicality as possible
(s 9 - SAT).

A party may appear represented or unrepresented (s 39-SAT).

… But what does 'representation' in this forum entail?

Legal representation and formality
“Not all cases attract or require legal representation and, where the nature
of the issues allows, the tribunal operates at a less formal level …

The experience of the tribunal is that there is no one level of formality or

informality which is appropriate in all cases …

We are satisfied that a structured form of hearing, ordered, orderly and

dignified, leaves plenty of room for informality. Equally there is room for
patience with the difficulties of, and for kindness to, applicants, respondents
and their representatives … [T]he tribunal is a servant not master.”

Re Hennessy & Secretary of the DSS (1985) [emphasis added]

Formality versus informality

“In the absence of a request for assistance or guidance by a party

who is appearing in person, a tribunal … should be conscious of the
fact that undue interference …[may] no matter how well intentioned,
be counterproductive and, indeed, even overawe and distract a party
appearing in person … [It] leads to a failure to extend to him an
adequate opportunity of presenting his [own] case.”

Sullivan v Dept. of Transport (1978) 20 ALR 323

‘Natural justice’

The Tribunal is generally required to afford the parties natural justice

(section 32(1))

This means applicants should have an opportunity to:

• present their case,
• have their case heard,
• inspect relevant documents, and
• be judged impartially.

NOTE: “… the precise content of the rules of natural justice will vary according to the
statutory framework of the particular proceedings and circumstances of the individual
case. …” (per Dean J, Minister for Immigration and Ethnic Affairs v Pochi (1980))
Practical ways of being flexible / providing assistance

Inquisitorial?
“The tribunal [AAT] does not have the resources to be a fully
inquisitorial body, but it has a duty to seek out information which it regards
as necessary for the determination of the case in hand.”
See: Australian Postal Commission v Burgazoff [1989] FCA 200.

Provide interpreters e.g. s 41

'Guide' witnesses e.g. s 32(6)

not adversarial in nature
evidence?
Rules of evidence

Not bound e.g. see s 32 SAT Act

BUT…see Evatt J in R v The War Pensions Entitlement Appeal Tribunal and

another; ex parte Bott [1933] HCA 30:

“…the Tribunal is not … ‘bound by any rules of evidence’. … But this does not
mean that all rules of evidence may be ignored as of no account. … [A]lthough
rules of evidence, as such, do not bind, every attempt must be made to
administer ‘substantial justice’.” [my emphasis]

See SAT quoting Evatt J in Medical Board of Australia and Woollard [2012]
WASAT 209 at [88].
Rules of evidence

Example: Hearsay

• Courts do not accept hearsay evidence because it is often unreliable.

• Tribunals may allow hearsay evidence but will be cautious about the
weight that they give to hearsay testimony.

(see Pochi’s case re AAT)

Rules of evidence

Rule in Jones v Dunkel (1959) 101 CLR 298:

• Has been applied in SAT

• Rule states that an adverse inference may be drawn from the failure
to call a witness whose evidence might have been relevant to the
matter(s) in dispute.
Cross examination
REMEMBER: informality is a major principle, as is the non-adversarial
nature of proceedings.

HOWEVER… the tribunals still value cross examination as a means of

testing the veracity of evidence and credit of witnesses.

(Pochi’s case per President Brennan J; see also Re Saverio Barbaro and
Minister for Immigration (1980) 3 ALD 1 at 5, per President Davies J).
4
Merits review in a tribunal

Policy
Powers on review
Summary
 Policy
The SAT has the power to:
• override or
• ignore
any government policy that informed the original decision maker’s decision

UNLESS that policy has been formally gazetted AND the decision maker
used it in its original decision.

If so:
SAT must have regard to the statement of policy as in effect at the time of
the review – s 28(2).
Policy
Despite that…usually, the tribunals will only ignore policy in particular
circumstances:
• To ensure justice in the individual case,
• To prevent unintended consequences in an individual case, or
• Where policy is simply bad or ignores the law.

Examples of ‘policy’:
• ministerial / government policy
• internal agency/departmental ‘manual’
• tribunal-generated policy to achieve justice in particular case (e.g.
practice notes)
Government policy – AAT

General rule: AAT should only (cautiously!) depart from ministerial policy in
particular, and only if there are substantial reasons to do so.

Bowen CJ and Deane J in Drake v MIEA (1979) 24 ALR 577 at 589: the
tribunal is entitled to treat a lawful government policy ‘as a relevant factor in the
determination of the application for review’ but it was not entitled to ‘abdicate its
function’ of deciding whether a decision was the correct and preferable one on
the basis of whether the decision conformed to government policy.

Brennan J in Drake No 2 gives the list of reasons, incl injustice in the particular
case: consistency in decision making means that ministerial policy should be
applied ‘unless there are cogent reasons to the contrary’.
Powers on review

s29 SAT Act

In relation to the decision that is being reviewed, the Tribunal may:
(1) affirm the decision;
(2) vary the decision;
(3) set aside the decision and substitute its own decision; or
(4) set aside the decision and send the matter back to the
decision-maker for reconsideration in accordance with any
directions or recommendations that the Tribunal considers
appropriate; and
(5) in any case, make any order that the Tribunal considers
appropriate.
Summary

• Merits review is powerful! It is a review of the facts and circumstances

of the case (rather than the legality of the decision), with the object of
determining the correct or preferable decision.
• ‘stand in the shoes’ of the original decision maker
• The Tribunal’s role is not to simply determine whether the original
decision maker’s decision was 'reasonable and open on the facts'. It is to
make the decision again.
• The Tribunal must determine what facts and circumstance are relevant
and carry weight – this may involve a quasi 'inquisitorial' process.
• Power to override or ignore policy – but only exercised sparingly – might
be compelled to consider it.
Summary

Process and values:

• Must decide case expeditiously
• Flexible procedure and requirement of natural justice
• Not adversarial proceedings
• Preliminary conferences/mediation - also 'on the papers'
• Exchange of documents and info gathering
• Rules of evidence do not apply – but beware of this absence…
• No onus of proof – beware of this absence too…
• No representation required – and beware of this too…!!!!
Next time: judicial review

Introduction - what is judicial review?

Terminology:
• ‘jurisdiction’ (in the context of judicial review of administrative action?)
• ‘justiciability’
• ‘jurisdictional error’
• ‘privative clause’
• ‘state of mind’
• ‘jurisdictional facts’ (facts versus law)
Thank you