The Hon. Justice Duncan Kerr Chev LH
Administrative Appeals Tribunal, Brisbane
8 October 2013
I would like to thank the University of Queensland Law Journal for inviting me here today to launch the special edition on ‘Merits Review’.
Merits review was an Australian world first autochthonous innovation in administrative law and it is now firmly built into the architecture of the Australian system of government. It is an integral part of ethical and impartial public administration and a key institution for good governance and accountability that also contributes to better administrative decision making. Merits review is now probably better developed in Australia than in any other country.
Each year while thousands, perhaps tens of thousands of Australians seek judicial review, hundreds of thousands, perhaps millions of Australians apply for one form or other of merits review. That merits review is more frequently accessed than is judicial review is well acknowledged.
The Administrative Appeals Tribunal ('AAT') and State tribunals operate largely without fanfare offering accessible, informal and relatively cheap processes where citizens can challenge the merits of administrative decisions. Merits review undertaken by skilled independent members allows these tribunals to reach the correct or preferable decision - not merely to set a flawed decision aside and send it back for reconsideration.
I commend the University of Queensland Law Journal for recognising this vital area of administrative law with its special issue on ‘Merits Review’. Its publication is timely.
Many younger Australian lawyers were not yet born when the legislation which set off the first administrative law revolution was passed. They, and those of us who were, have come to take for granted what was achieved.
Public and academic attention has tended to focus on the subsequent entrenchment of non-statutory judicial review. The natural excitement and interest of lawyers about the rapidly evolving sphere of judicial review, its increased availability and its constitutional entrenchment at both a federal and state level, has led to less attention being given to the bread and butter role of merits review.
Judicial review can set decisions aside, compel duties to be performed and prevent wrongs, but it cannot substitute a correct or preferable decision - that is a step beyond judicial review. Only merits review can do that.
This special edition on ‘Merits Review’ will, therefore, play an important role in focusing attention in academic and professional writing about the role of merits review amidst the excitement surrounding judicial review.
As I looked through the fine collection of scholarly articles for this edition, I am struck by the commonality of the aspirations and concerns shared among contributors. The articles cover a wide range of topics from:
the nature of the duty to inquire and its role in tribunal proceedings against the backdrop of perceived tensions between court structures and procedures and the way that tribunals are expected by the parliaments that create them, to do their work; (Justice Alan Wilson)
the Australian super tribunals and the right to an internal appeal to an appeal panel and a discussion on the qualifications to the right, the role of a first instance recall power and the relationship of the internal appeal tier to the Supreme Court; (Judge Kevin O’Connor)
the concept of integrity in the context of individual tribunals and the tribunal systems as a whole as it has come to be expected by users when seeking review of decisions adverse to their interests; (Robin Creyke)
the challenge of deciding which is the preferable decision where there is more than one possible correct decision while mindful that widely divergent decisions in similar circumstances would be undesirable and may lead to a sense of unfairness and dissatisfaction with the system of administrative review; (Kerrie O’Callaghan and Michelle Howard)
the challenge of managing the community expectation in the course of tribunal decision-making to decide on a preferable outcome to ensure that the values selected for reference are not used to cloak a purely subjective preference; bearing in mind that while tribunal decision makers have an important role in the development of public policy, their primary function is to improve the adjudicative as opposed to the policy making functions of government; (Bernard McCabe)
the need to champion the merits review area of administrative law in relation to the existing review of the unauthorised maritime arrivals and the related proposed option to remove access to the Refugee Review Tribunal, sending failed asylum seekers directly to the Federal Circuit Court; (Mary Crock and Hannah Martin)
reflections on the operation of the Migration Review Tribunal and Refugee Review Tribunal in an interconnected world and the revisiting of the vision of the Kerr and Bland Committees that persons affected by administrative action of Commonwealth agencies should have available to them a general merits review tribunal the creation of which would avoid the waste of resources inherent in a proliferation of tribunals; (Dennis O’Brien)
an analysis of how Alternative Dispute Resolution techniques may be applicable for the types of migration merits review where AAT has jurisdiction; (Katherine Hooper)
the uncertainty over the burden of proof and the standard of proof in a super tribunal such as the State Administrative Tribunal (‘SAT’) arising from the dual nature of SAT with its administrative review and original jurisdictions; (Bertus De Villiers)
a review of the twenty-one years of the Judicial Review Act 1991 as to whether it has achieved its aims of promoting access to justice and securing legal accountability over public power; (Peter Billings and Anthony Cassimatis)
The spectrum of topics on and related to merits review in this edition ensures that it will be an important reference for the legal profession, law students and other interested individuals.
While merits review might appear firmly built into the architecture of the Australian system of government, on current constitutional theory, it remains exclusively the product of statute. What Parliament can enact, they can repeal. That requires tribunals to meet large expectations.
To retain the support of the public and the Parliament bodies exercising merits review need to remain responsive to charter obligations of the kind set out in s 2A of the AAT Act:
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that is fair, just, economical informal and quick.
While repeal of existing review rights is not on the horizon, merits review needs champions lest it become residual, available to citizens only in well-established niches. The members of the Kerr Committee had broad aspirations for merits review and intended that it be available across all areas of government administration.
This brings me to propose that:
It may be time to reflect on whether the AAT should have universal jurisdiction, subject to express exclusion, rather than the reverse.
It may also be time to revisit the recommendations of the Administrative Review Council’s Better Decisions Report of 1996. The rationale that underpinned the Better Decisions Report was sound and retains my strong support.
In 2012 Cabinet took a small step, consistent with that rationale, when it decided in response to the Skehill Report that no new stand-alone tribunals would be created and any future merits review jurisdiction would be conferred on the AAT.
In this respect, the States have overtaken the Commonwealth in bringing coherence to their systems of merits review. This can be illustrated in the by the model adopted in Victoria (VCAT) Queensland (QCAT) Western Australia (SAT) and the recently announced New South Wales decision to meld their existing tribunals together under the leadership of a Supreme Court judge as NCAT.
Looking at the area of merits review in the next decade, I also speculate that a key area for attention will be on whether Australian law should recognise a right to reasons.
One of the central recommendations of the Kerr Report was to propose the introduction of an obligation on federal decision makers to make findings and give reasons if they were requested by a person whose interests were affected. As a result of the passage of the AAT and ADJR Acts Commonwealth decision makers now can be required to provide a statement of reasons in a wide range of areas.
However, in Public Service Board of NSW v Osmond, the High Court of Australia held unanimously that there is no common-law right to reasons in Australian administrative law. While acknowledging the desirability of bodies exercising administrative functions giving reasons the Chief Justice declined to endorse ‘a departure from a settled rule on grounds of policy’.
In his Whitmore Lecture 2012, former justice of the High Court of Australia Michael Kirby forcefully argued that Osmond should be revisited by the High Court.
In a recent paper ‘A Tribunal Law Update’ Anita Johnson cited Basten JA’s statement’s (McColl and Wheatly JJA agreeing) in L&B Linings v WorkCover Authority of New South Wales as accurately stating the current law with respect to the obligation of an administrative decision maker to give reasons.
A path to that desired outcome might also be by way of constitutional implication.
In Minister for Home Affairs of the Commonwealth v Zentai counsel for the respondent Geoffrey Kennett SC submitted that an implied obligation to give reasons could be drawn from Chapter III of the Constitution, and particularly s 75(v). His submission was that a minister making a decision that had a serious effect on an individual should provide some statement of justification to explain it as otherwise the High Court’s jurisdiction to judicially review such decisions would be frustrated and rendered ineffectual. As the respondent succeeded on other grounds the majority found it unnecessary to consider the notice of contention filed on his behalf.
We await the High Court decision when the same argument is advanced in future.
In concluding, I would like to remind ourselves that the Kerr Committee was very aware of the landmark nature of the administrative law reforms it proposed and we take for granted the availability of merits review at some peril.
I congratulate the Editorial Board of University of Queensland Law Journal for putting a spotlight on this home-grown product;
I also congratulate Peter McDermott for his editorship of this issue; and
last but not least, the contributors for a publication is only as good as the contributions it receives.
I launch the ‘Merits Review’ edition of the University of Queensland Law Journal in appreciation that it brings this vital area of administrative law to the fore in academic and professional writing.