Commonwealth of Australia
Administrative Review Council
What decisions should be subject to merit review?
Table of contents
1.1. Merits review is the process by which a person or body:
other than the primary decision-maker;
reconsiders the facts, law and policy aspects of the original decision; and
determines what is the correct and preferable decision.
1.2. The process of review may be described as ‘stepping into the shoes’ of the primary decision-maker. The result of merits review is the affirmation or variation of the original decision.
1.3. The principal objective of merits review is to ensure that those administrative decisions in relation to which review is provided are correct and preferable:
correct – in the sense that they are made according to law; and
preferable – in the sense that, if there is a range of decisions that are correct in law, the decision settled upon is the best that could have been made on the basis of the relevant facts.
1.4. This objective is directed to ensuring fair treatment of all persons affected by a decision.
1.5. Merits review also has a broader, long-term objective of improving the quality and consistency of the decisions of primary decision-makers. Further, merits review ensures that the openness and accountability of decisions made by government are enhanced.
1.6. In the course of advising the Attorney-General on the classes of administrative decisions that should be subject to merits review, the Administrative Review Council (‘Council’) has developed principles which it applies to each class of decision under consideration.
1.7. Those principles have been consolidated as guidelines. They are published in this booklet to assist others in the development of proposals or legislation that involve the creation of administrative powers of decision.
1.8. The guidelines set out in this booklet are, however, not binding upon the Council or any other person. Their development and refinement is an ongoing exercise.
1.9. The Council’s guidelines are often applied in assessing whether the Administrative Appeals Tribunal (‘AAT’) should be given statutory jurisdiction to review a particular type of decision. They are, however, equally applicable in deciding the appropriate jurisdiction of other persons or bodies who engage in independent or external merits review. Many of the principles that support the guidelines may also be applied in selecting those decisions that should be subject to internal review.
1.10. The Council’s Secretariat may be contacted, if there are any questions that arise in relation to identifying a merits reviewable decision, that are not dealt with in this booklet.
1.11. The next chapter of this booklet sets out the Council’s approach to identifying a merits reviewable decision.
1.12. The subsequent chapters set out the categories and types of decisions that the Council has identified as being appropriately subject to merits review. Some of the decisions that may otherwise have been suitable for merits review exhibit factors that either make them unsuitable for, or may justify excluding them from, review. Those decisions are discussed in Chapters 3 and 4.
1.13. In any case, where merits review may be considered to be open for exclusion, the effect of ousting the objectives of merits review must be outweighed by the benefits that will follow the exclusion of review.
1.14. Factors that the Council has considered, but that in its view do not justify excluding merits review, are set out in Chapter 5.
2.1. As a matter of principle, the Council believes that an administrative decision that will, or is likely to, affect the interests of a person should be subject to merits review. That view is limited only by the small category of decisions that are, by their nature, unsuitable for merits review, and by particular factors that may justify excluding the merits review of a decision that otherwise meets the Council’s test.
2.2. The Council’s approach reflects the requirements for standing to appear before the AAT. Section 27 of the Administrative Appeals Tribunal Act 1975 (‘AAT Act’) provides that persons whose interests are affected by a decision may apply to the AAT for review of the decision.
2.3. The AAT has taken the view that, while section 27 does not use an adjective to describe the relationship between the decision and the applicants’ interest, the section does require an applicant to demonstrate that an interest of theirs was genuinely affected.
2.4. The Council prefers a broad approach to the identification of merits reviewable decisions. If an administrative decision is likely to have an effect on the interests of any person, in the absence of good reason, that decision should ordinarily be open to be reviewed on the merits.
2.5. If a more restrictive approach is adopted, there is a risk of denying an opportunity for review to someone whose interests have been adversely affected by a decision. Further, there is a risk of losing the broader and beneficial effects that merits review is intended to have on the overall quality of government decision-making.
2.6. The Council’s approach is intended to be sufficiently broad to include decisions that affect intellectual and spiritual interests, and not merely property, financial or physical interests.
3.1. There are two types of decisions that, by their nature, are unsuitable for merits review. They are:
legislation-like decisions of broad application (which are subject to the accountability safeguards that apply to legislative decisions); and
decisions that automatically follow from the happening of a set of circumstances (which leaves no room for merits review to operate).
3.2. Both classes of decision, where properly characterised, do not affect the interests of any individual in the relevant manner, or, do not involve a decision of such a quality that merits review can operate in respect of it.
3.3. Decisions that are not directed towards the circumstances of particular persons, but which apply generally to the community, are considered to be unsuitable for review. By their nature, it is unlikely that they affect the interests of any one person.
3.4. One example the Council has considered arose under the Child Care Act 1972, and involved a power to make fee relief guidelines for child care centres. The decisions made under that power were of a legislative character, and should have been subject to the regime of scrutiny and publication that applies to legislative instruments.
3.5. However, some decision-making powers that appear on their face to come within this exception may in fact lead to a decision that has a particular effect on an individual or individuals. Those decisions should be reviewed on the merits.
3.6. For example, section 1113A of the Corporations Law allowed the (then) Australian Securities Commission (‘ASC’) to make a declaration to extend the application of the Law to certain non-marketable securities, or to a class of non-marketable securities. Those securities would not otherwise have come within the reach of other provisions of the Law.
3.7. To the extent that a decision under section 1113A related to particular securities, individual interests could be adversely affected. Decisions made under the section therefore fell outside the scope of the legislation-like decisions exception, and were considered by the Council to be suitable for merits review.
3.8. There are some decisions that may be described as automatic or mandatory decisions. They arise where there is a statutory obligation to act in a certain way upon the occurrence of a specified set of circumstances. In that case, there is nothing on which merits review can operate.
3.9. For example, the Council considered that section 1282(6) of the Corporations Law involved a mandatory decision. The section provided that, where:
the ASC granted an application by a person for registration as a liquidator; and
the person complied with relevant legislative requirements,
then the ASC must issue the person with a certificate of registration.
3.10. In essence, the issue of the certificate was mandatory, after the ASC decided to grant the application. In such a case, there was no opportunity for merits review to operate in relation to the ASC’s decision to issue the certificate. That decision could also be characterised as being a preliminary or procedural decision, the treatment of which is discussed below.
3.11. Further, because of the automatic nature of the process, the ASC probably made no decision within the meaning of the AAT Act, so there was strictly no decision that could be subject to review by the AAT.
3.12. Where, however, there is scope for disagreement about whether or not particular facts have occurred, the automatic or mandatory character of the decision flowing from those facts will not mean that the decision is inappropriate for review, although the review will necessarily be confined to ascertaining whether or not the relevant facts have occurred.
4.1. In considering the appropriateness of decisions for merits review, the Council has been presented with many arguments for the exclusion of review. The factors that may exclude merits review lie: in the nature of the decision; in the effect of the decision; and, in the costs of review of the decision.
4.2. Factors that may exclude merits review, that lie in the nature of the decision, touch upon:
4.3. Preliminary or procedural decisions may include decisions that facilitate, or that lead to, the making of a substantive decision. In the Council’s view, this type of decision is unsuitable for review.
4.4. This is because review of preliminary or procedural decisions may lead to the proper operation of the administrative decision-making process being unnecessarily frustrated or delayed. In the case of preliminary or procedural decisions, the beneficial effect of merits review is limited by the fact that such decisions do not generally have substantive consequences. The benefits are outweighed by the cost of potentially frustrating the making of substantive decisions.
4.5. One example of such a decision that the Council has considered arose under section 539(2) of the Corporations Law, by which the ASC could require a liquidator’s accounts to be audited. Although that decision had no substantive effect, it could assist the ASC in taking further action in relation to the accounts. Nevertheless, the Council recommended that the decision not be subject to review.
4.6. In contrast, the Council considers that decisions to exempt an applicant from statutory deadlines are not decisions that can be properly characterised as being merely preliminary or procedural. Indeed, a decision to refuse an extension of time can often have a substantive effect.
4.7. For example, a refusal to grant an extension may cause hardship or expose an applicant to a penalty, if they are otherwise unable to meet the deadline. In the Council’s view, such decisions should be merits reviewable.
4.8. As a matter of principle, decisions to institute proceedings should not be reviewed on the merits. There are AAT decisions to the effect that such decisions are not reviewable because they are not final decisions. In any case, the right to proceed to court for the resolution of a dispute must always be available, without any hindrance.
4.9. It is, of course, possible that legislation may require a step to be taken, before the right to proceed is exercised. For example, there may be a requirement that there should be resort to alternative dispute resolution.
4.10. However, if a statute is silent, then no restriction on the right to proceed to a court should be read into it. A power to seek review of a decision to go to court would be such a restriction or inhibition on the right to proceed. Steps that are an integral part of the process of the institution of proceedings should also be excluded from review.
4.11. Decisions relating to the allocation of a finite resource, from which all potential claims for a share of the resource cannot be met, are generally considered by the Council to be inappropriate for merits review.
4.12. The mere fact that there is a limited pool of resources for distribution does not, of itself, make subsequent allocative decisions unsuitable for review. 4.13. For example, even though an overall program expenditure may be notionally capped, and program funding estimates may need to be marginally adjusted if decisions were overturned on review, these are not circumstances where funding is finite. If one allocation of funding from the resource is altered, funding to another person or body will not necessarily be directly affected.
4.14. The Council emphasises that decisions which come within this exception must involve two parts:
there is an allocation of finite resources; and
an allocation that has already been made to another party would be affected by overturning the original decision.
4.15. An example of decisions considered by the Council to be inappropriate for AAT review were decisions of the National Health and Medical Research Council to recommend that a grant from the Medical Research Endowment Fund be made to an applicant. The Council considered that review of such decisions was inappropriate. The Fund was limited, and only a proportion of applications could be met. A decision made in relation to one grant affected decisions in relation to all others. The effect of recommendatory decisions, like that of the Fund, are also considered in detail below.
4.16. The Council considers that decisions to provide one-off payments to certain service providers, over other service providers, should also be excluded from merits review.
4.17. The Council takes this view, because:
review would only promote competition among community groups;
no effective remedy could be provided, as a successful application for review by one service provider would require a reduction in funding to other service providers; and
there would be delays in channelling funds into service provision.
4.18. The Council also holds the view that decisions by government to allocate funding to programs as a whole are not suitable for review, as they are budgetary decisions of a policy nature, rather than decisions immediately affecting any particular person’s interests. Those decisions are subject to parliamentary scrutiny, and the Minister who makes them will be held politically accountable for any consequences.
4.19. Even though the Council does not believe that such decisions should be reviewed, the Council does consider that administrative accountability in relation to such allocative decisions should be given greater emphasis, including ensuring that:
the processes of allocating funds are fair;
the criteria for funding are made clear; and
decisions are made objectively.
4.20. When considering this exception, it is important to appreciate the distinction between records that are fundamental to the independent authority of the Parliament or the courts (‘core records’), and those that merely support their functions (‘secondary records’).
4.21. The issue of public access to core records is one for the Parliament or the courts, and should not be subject to review. However, there should be internal reconsideration or external review of decisions about public access to secondary records. Because secondary records merely support the functions of the Parliament and the courts, internal reconsideration or external review of related access decisions will not compromise the independence of the Parliament or the courts.
4.22. This exception relates to decisions that involve the consideration of issues of the highest consequence to the Government. Only rarely will decision-making powers fall within this exception, and it is unlikely that a decision-making power not personally vested in a Minister would suffice.
4.23. Examples of decisions likely to fall within this exception include decisions:
affecting the Australian economy;
affecting Australia’s relations with other countries;
concerning the national security; and
concerning major political controversies.
4.24. Economic decisions which may possess a sufficiently high political content include decisions of such fundamental significance as: determining interest rates; floating the dollar; and, setting foreign exchange rates. That said, although a decision may have considerable economic impact, it will not necessarily be open to be characterised as being of a high political content.
4.25. For example, a decision of a Minister to approve a body corporate as a stock exchange may well involve political considerations. However, the Council considers that such a decision, while exhibiting elements of high political content, is probably not of a sufficiently high political content to warrant exclusion from merits review.
4.26. The exclusion of such a decision would, however, be appropriate for consideration under the category of exception of financial decisions with a significant public interest element (which is discussed below).
4.27. Even where the high political content exception applies, in some areas it will only apply to a few of the total number of decisions made under a particular decision-making power. If review of all decisions under the power is excluded on this basis, then many decisions not exhibiting a high political content would be inappropriately made ineligible for merits review.
4.28. The Council therefore considers it preferable for decisions made under such a power to be made subject to merits review, with a mechanism being established to provide for the exclusion from review of those decisions that fall within the exception.
4.29. For example, it may be that the exclusion from merits review should:
be limited to decisions personally made by a Minister;
only be effected by that Minister issuing and tabling in the Parliament a certificate, providing for the particular decision to be excluded from review, and indicating the basis of the exclusion; and
only take effect from the date of tabling of the Minister’s certificate.
4.30. In a similar vein, the Council has recommended a system under which a Minister may issue a certificate on a case-by-case basis, excluding particular decisions from merits review, because it is in the public interest. Areas of decision in which this mechanism is appropriate will, however, be exceptional.
4.31. Decisions of a law enforcement nature, including decisions relating to investigations, should not be made subject to merits review. If review of such decisions was available, both the investigation of possible breaches and the subsequent enforcement of the law could be jeopardised.
4.32. For example, decisions to place people on the Witness Protection Program involve prosecutorial discretions, including whether the person concerned would be a valuable or useful witness. In those circumstances, external merits review of placement decisions would be inappropriate.
4.33. On the other hand, a decision to remove a person from the Program is not of the same quality. Such a decision deprives the person concerned of an expectation of security and should be subject to review on the merits.
4.34. The class of decisions subject to this exception combine a significant public interest element, together with either:
a need to take rapid action to restore or maintain investor confidence in the market; or
an aspect that makes them essentially government financial policy decisions, rather than decisions about the merits of particular applications.
4.35. Decisions that fall within this exception would typically:
involve the evaluation of complex and competing facts and policies (going beyond mere fact finding), following consultation with expert bodies or market participants;
be expected to have a significant impact on the market and on national and international investor confidence; and
involve a high level of political accountability.
4.36. It is rare for decisions to come within this exception. That said, decisions made under section 769(1) of the Corporations Law, for example, under which the Minister may approve a body corporate as a stock exchange, would fall within this exception.
4.37. Such a decision is clearly a matter of significant public interest and would be based upon in-depth departmental advice, as well as advice from the Australian Securities and Investments Commission and other experts. The decision would also significantly affect financial markets and national and international investor confidence.
4.38. However, as in the case of policy decisions of high political content, the Council recommends giving the relevant Minister a discretion to issue a certificate, on a case-by-case basis, to exclude merits review of particular decisions that fall within this exception, rather than excluding such decisions from review on a global basis.
4.39. Factors that may exclude merits review that lie in the nature of the effect of the decision concern:
4.40. Decisions to appoint a person to undertake a specified function should not generally be subject to merits review.
4.41. For example, under section 934(3) of the Corporations Law, the ASC could approve a person appointed by the Board of the Securities Exchanges Guarantee Corporation (‘SEGC’), to invest on behalf of the SEGC, money that was not immediately required for the SEGC’s purposes. A decision to appoint a person to invest SEGC monies was based on that person’s particular expertise and understanding of the requirements of the SEGC. Such a decision would be inappropriate for merits review.
4.42. Decisions involving an appointment of a person to undertake a specified function should, however, be distinguished from decisions to grant a person the qualifications which allow them to perform a specified function. For example, decisions relating to the grant of a licence, or the approval of a person to act as an auditor, liquidator or receiver, should be reviewable.
4.43. Decisions involving the delegation of a function or power to a person should not be subject to merits review. Standard delegation provisions that appear in legislation typically provide that a Minister or head of an organisation may, by signed instrument, delegate to an officer of the organisation all, or particular, functions and powers. Because the decision to delegate does not, of itself, affect any person’s interests, review should not follow.
4.44. A decision that a particular recommendation will be made to the Government should not be subject to merits review. Such a recommendation is not a final determination, and is of no substantive effect.
4.45. The relevant distinguishing characteristics of such decisions, and the reasons for their exclusion from merits review, are that:
the recommendation need not be adopted; and
an action that may affect an individual’s interests is not decided upon at the time that the recommendation is made.
An individual’s interests may only be affected when the recommendation is acted upon.
4.46. To illustrate, in considering the recommendations of the Pharmaceutical Benefits Advisory Committee (‘PBAC’) – a statutory body that made recommendations to the relevant Minister about which drugs should be available as pharmaceutical benefits – the Council observed that, even if:
merits review of the PBAC’s recommendation were available; and
the reviewing body were able to set aside the PBAC’s recommendation and substitute its own recommendation,
the Minister would not be bound by that recommendation, just as the Minister would not be bound by the PBAC’s recommendation.
4.47. As with preliminary or procedural decisions, the merits review of such recommendations has the potential to disrupt the decision-making process, without necessarily changing a substantive or operative decision.
4.48. If, however, a decision is styled as a recommendatory decision, but does in fact have a substantive or operative effect, it should not be excluded from merits review.
4.49. This exception concerns decisions of such a kind that no appropriate remedy may be conferred by the reviewing body. For example, where a decision has been taken, and the results are irrevocable (such as a decision to destroy documents which has been implemented), then the beneficial effects of merits review are reduced.
4.50. The exception may also extend to decisions which operate for such a short period that their effect would be spent by the time of review.
4.51. Care needs to be taken, however, not to over-extend this exception. Practical solutions to apparent problems may be found – for example, in the AAT’s capacity to deal with urgent cases, including its power to issue stay orders.
4.52. Factors that may exclude merits review that lie in the costs of review of the decision include instances of:
4.53. This exception covers decisions that are the product of processes that would be time-consuming and costly to repeat on review.
4.54. Such processes include public inquiries and consultations that require the participation of many people. If review of the subsequent decisions was undertaken, the nature of the review process would be changed from the normal adjudicative decision-making process (of, say, the AAT), to a greatly expanded and time-consuming one.
4.55. For example, the Council has advised that decisions made under the Australian Heritage Commission Act 1975 to enter, or not to enter, a place on the Register of the National Estate would be inappropriate for external merits review, if the Act was amended to provide for those decisions to be made by a process involving public hearings.
4.56. Merits review costs money. Given that the Government must allocate resources in an effective way, it would obviously be inappropriate to provide a system of merits review where the cost of that system would be vastly disproportionate to the significance of the decision under review.
4.57. For example, merits review of a decision not to waive a filing fee of, say, $150 may be difficult to justify on an economic basis. That said, the cost of review must be accounted for not only by comparison with the extent of the interests of any individual that may be affected, but also by comparison with the broader and beneficial effects that merits review is intended to have on the overall quality of government decision-making.
5.1. This chapter sets out various factors that have been raised with the Council, but which it considers do not justify excluding merits review of a decision that should otherwise be subject to review. They may be classified as lying: in the nature of the decision; in the nature of the decision-maker; and, in the effect of the decision.
5.3. The fact that a decision-making power involves matters of national sovereignty (such as the question of who is admitted to enter the country) or the prerogative power (the inherent powers of the Government) does not, alone, mean that decisions made under the power should be excluded from review.
5.4. For example, the Council recognises that an aspect of the national sovereignty is the power to determine who is admitted to the country and the composition of its population.
5.5. But the Council does not consider that this power is incompatible with the availability of remedies to ensure that administrative decisions taken under it are lawful and correct, within the context of the legislative and policy framework in which they are made. Further, Australian citizens may well have a real interest in the admission of a relative, friend or prospective employee.
5.6. The mere fact of geographic isolation, affecting either where the decision is made or where it may be reviewed, should not exclude review. This is particularly so when the isolation may be overcome as a practical matter.
5.7. For example, the Council has had cause to consider whether it is appropriate to provide review of certain decisions made under an Ordinance of an external territory – namely, Christmas Island. The Council took account of the geographical isolation of the island, and the practical difficulties that this would cause in providing review, but considered that those difficulties could be overcome.
5.8. In particular, the Council suggested the possibility of a magistrate, who sat in the Magistrates Court of Christmas Island, being appointed as a part-time member of the AAT, in order to conduct the review.
5.9. Occasionally, legislation prescribes only general factors that are relevant for consideration in the exercise of a decision-making power. Even more rarely, legislation may be completely silent on relevant factors. Such legislation leads to decisions that are legislatively unstructured.
5.10. The Council does not regard a decision as inappropriate for review merely because the decision-making power is legislatively unstructured. Although initially there may not be a clear principle to guide the exercise of the discretion conferred, that will change over time as principles emerge from:
consideration of the discretion;
the need to assign reasons for decisions; and
from review itself.
5.11. Further, in the view of the Council, the lack of such a structure may indeed emphasise the desirability and efficacy of merits review.
5.12. The fact that a decision-making power may be exercised by reference to a policy does not, of itself, exclude from review a decision made under the power.
5.13. In practice, however, it is important to distinguish between:
a government policy (as expressed in a Government or Ministerial Statement); and
other policies (that may take a variety of forms – from official departmental publications, to unofficial expressions of opinion of public servants).
5.14. A decision made by reference to the latter type of policy should clearly be subject to review. A decision made with reference to the former type of government policy, even if the policy is made at the highest political level, should also be reviewed.
5.15. In such a case, however, it may be that the reviewing body will give appropriate weight to and apply the government policy, unless it is unlawful or unless its application tends to produce an unjust decision in the circumstances of the case. Nevertheless, review of the decision should not be excluded.
5.16. Factors that will not exclude merits review that lie in the nature of the decision-maker include:
5.17. Decisions that are made by an expert body, or that require specialist expertise, should be reviewable.
5.18. For example, the Council rejected an argument that decisions of the Australian Broadcasting Tribunal were inappropriate for review because of the expertise of the Tribunal. The Council’s reasoning focussed on the need to review or check even the findings of experts. Further, and as a practical matter, the Council also noted the ability to appoint experts to the AAT, the body that would be reviewing the decisions of the Tribunal.
5.19. In the normal course, if an expert external opinion is provided to a decision-maker in the process of making a decision, and that decision is subject to review, then the opinion should also be subject to review. That review should be of a quality comparable to that applicable to the decision. If that is not possible, review of the opinion should be by the person or body with jurisdiction to review the decision.
5.20. The status of the primary decision-maker is not a factor that, alone, will make decisions of that person inappropriate for merits review.
5.21. For example, the fact that the decision-maker is a Minister or the Governor-General, is not, of itself, relevant to the question of review. Rather, it is the character of the decision-making power, in particular its capacity to affect the interests of individuals, that is relevant.
5.22. That said, policy decisions that involve consideration of matters of the highest consequence to government or major political issues may be regarded as inappropriate for merits review: this exception is discussed in Chapter 4, above.
5.23. The high political content exception focuses upon the nature of the decision, not the identity of the decision-maker, although it will usually only apply if the decision is made personally by a Minister.
5.24. Factors that will not exclude merits review, that lie in the effect of the decision, include that:
5.25. The fact that the merits review of a decision may potentially lead to the publication of confidential information concerning employees does not, of itself, exclude the decision from review, particularly when the reviewing body is the AAT.
5.26. The AAT is empowered to limit the publication of confidential evidence. Section 35 of the AAT Act provides that hearings must generally be in public, but that in appropriate circumstances a hearing, or part of a hearing, may be conducted in private.
5.27. So, for example, the Council has had to consider whether decisions of a Minister to licence, or to revoke, cancel or suspend the licence of, a casino’s employees were appropriate for review on the merits. In making such decisions, the Minister might have cause to consider confidential police reports on the employees. The Council did not, however, consider that merits review of those decisions was inappropriate, and relied in part on the powers of the AAT under section 35.
5.28. The potential for a relatively large number of people to seek merits review of decisions under a particular decision-making power does not justify excluding those decisions from review.
5.29. Rather, there are other, preferable methods for containing the potential costs and delay of a high review rate. They include:
ensuring that the primary decision-making is of a high standard (merits review will in fact assist in achieving higher standards);
implementing appropriate case management techniques; and
creating an intermediate level of review that can operate speedily and informally.
5.30. The Council does not consider that a decision is inappropriate for merits review merely because that decision may also be the subject of judicial review.
5.31. The Council’s view follows from the fact that the judicial review powers vested in the Federal Court are complementary to, but distinct from, merits review powers. Judicial review involves the exercise of the Commonwealth’s judicial power and results in findings in law. Merits review involves the exercise of administrative powers and results in a correct and preferable decision. The different realms of operation of the two forms of review mean that they can, and often do, co-exist.