Robindon, Mark --- "Merits Review at the Federal Level" [2010] AdminRw 10; (2010) 59 Admin Review 58

• Merits review at the federal level

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Merits review at the federal level

Mark Robinson^[1]

In the Administrative Appeals Tribunal Australia is fortunate to have had the benefit of a long‑established independent external merits review tribunal of no small stature in the federal scheme of things. It was established by the Administrative Appeals Tribunal Act 1975 (Cth) and was part of what is styled the administrative law ‘package’ designed and proposed in a number of Commonwealth reports in the early 1970s.^[2]

Few administrative law lawyers would have imagined that, about 30 years after the AAT’s establishment, the High Court of Australia would be deliberating on fundamental aspects of the AAT’s nature and the scope of its jurisdiction. The nature of merits review in the AAT was discussed at length by the court in Shi v Migration Agents Registration Authority.^[3] At [140]–[141], Kiefel J stated (with Crennan J agreeing (at [117])):

The term ‘merits review’ does not appear in the AAT Act, although it is often used to explain that the function of the Tribunal extends beyond a review for legal error, to a consideration of the facts and circumstances relevant to the decision. The object of the review undertaken by the Tribunal has been said to be to determine what is the ‘correct or preferable decision’. ‘Preferable’ is apt to refer to a decision which involves discretionary considerations. A ‘correct’ decision, in the context of review, might be taken to be one rightly made, in the proper sense. It is, inevitably, a decision by the original decision-maker with which the Tribunal agrees. Smithers J, in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; ((1979) 24 ALR 307 at 335), said that it is for the Tribunal to determine whether the decision is acceptable, when tested against the requirements of good government. This is because the Tribunal, in essence, is an instrument of government administration …

The reasons of the members of the Full Court of the Federal Court in Drake v Minister for Immigration and Ethnic Affairs ((1979) 24 ALR 577) confirm what is apparent from s 43(1), that the Tribunal reaches its conclusion, as to what is the correct decision, by conducting its own, independent, assessment and determination of the matters necessary to be addressed ((1979) 24 ALR 577 at 591 per Bowen CJ and Deane J, 599 per Smithers J; and see Nevistic v Minister for Immigration and Ethnic Affairs [1981] FCA 41; (1981) 34 ALR 639 at 648 per Deane J).

In the Shi case Hayne and Heydon JJ described the nature of the AAT’s ‘task’ in some detail (at [96] to [100]). Further, Kirby P discussed at length the nature of the AAT (at [30] to [32]), its function (at [33] to [38]) and the purpose of the AAT Act (at [39] to [42]). Although the case arose in the context of the disciplinary provisions for the control of registered migration agents under the Migration Act 1958 (Cth), these fundamental matters assumed primary significance.

The court held that, when the AAT was reviewing the finding of the migration agent’s regulatory authority that the migration agent was not a fit and proper person to be registered and was not a person of integrity, this did not involve a temporal element, as the Federal Court had held it did by majority in Shi v Migration Agents Registration Authority.^[4] The court held that the tribunal, in reviewing this decision, was not restricted to a consideration of the events occurring until the time the authority made its decision but could consider later events. It held that the tribunal could have regard to the state of affairs at the time of making its decision unless in the legislation empowering the decision maker to make the original decision under review there is a statutory qualification that the making of the decision should be restricted to the material before the original decision maker. It held that there was no such statutory qualification in the Migration Act and therefore the tribunal’s review was relevantly unrestricted (as to temporal considerations).

The court also considered the AAT’s power to fix ‘conditions’ in the determination of the review. The tribunal had determined that the migration agent should be cautioned but that the caution should be lifted at a specified time if specific conditions were satisfied—namely, that he be supervised as a migration agent for three years and that he not provide immigration assistance in relation to applicants for a protection visa during that period. The registration authority possessed statutory power to ‘set one or more conditions for the lifting of a caution’ (s 304A of the Migration Act). The High Court determined (by majority) that this power to impose conditions was wide enough to enable the AAT to fashion, or ‘mould’, conditions to the particular circumstances of the case. The court did not comment on the appropriateness of the conditions in the case, only on their legality—with the exception of Kirby J, who stated (at [70]) that the tribunal had made an ‘available and arguable sensible disciplinary decision’.

The court also took the opportunity to endorse aspects of ‘long established’ determinations as to the nature and scope of the tribunal’s task in external merits review in cases such as Drake v Minister for Immigration and Ethnic Affairs, Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (New South Wales) and Minister for Immigration and Ethnic Affairs v Pochi.^[5]

It is interesting to observe in the Shi case that the High Court accepted the AAT’s significant review role and its evident important place in the federal executive scheme of independent merits review and construed its powers widely in that broader context.

The Shi case has itself raised a number of questions left unanswered by the High Court and that would benefit from investigation or review by the Administrative Review Council. For example, the nature or function of the AAT as an ‘investigative’ body or as an ‘adversarial’ body is not explored. Nor is the manner by which the agency or executive decision maker is to defend the decision in the tribunal or to assist the tribunal is settled. That is so particularly having regard to the recently inserted s 33(1AA) in the AAT Act, which obliges the person who made the decision to use their best endeavours to help the tribunal make its decision. What does this mean in practical terms? Do the model litigant rules apply?

More fundamentally, given the High Court’s firm confirmation of the ‘standing in the shoes’ merits review dogma, what role or significance remains for the primary decision or the decision under review (a question raised but not wholly answered by Kirby J in Shi at [34] and [37]’? Is the primary decision merely relegated to the status of a jurisdictional fact? Is it simply part of the material now before the tribunal (as Kirby J holds it is in Shi at [37])? Does it have significance in fixing or narrowing the matters before the tribunal (as the delegate’s decision limited the Refugee Review Tribunal in SZBEL v Minister for Immigration^[6])? What scope is there in the tribunal for raising fresh matters or for ‘ambush’ between the parties at tribunal hearings?^[7]

What does it mean for the tribunal to ‘review’ the original decision, as the enabling Act requires and as is provided for in section 25(4) of the AAT Act? In Shi at [43] Kirby J suggests that it merely ‘makes it necessary in each case to identify the precise nature and incidents of the decision that is the subject of the review’.

These questions are all the more apposite when the decision maker or the responsible agency, or both, possesses considerable specialist expertise, corporate history, and experience and knowledge.^[8] Who is best equipped to deal with such difficult and complex questions and in what manner? These questions lead to further difficult questions about, for example, the best way to provide to the AAT proper resources and expertise in these cases.

Should all matters continue to be dealt with in the same fashion by the tribunal? Should matters concerning safety, such as the regulation of the air transport industry, be dealt with separately or differently? The Administrative Review Council’s investigation, and perhaps resolution, of some of these matters would be better than waiting for the High Court to focus on them in another 30 years’ time.

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^[1] Member, Third Floor, Wentworth Chambers, Sydney.

^[2] See the Kerr, Bland and Ellicott Committee reports, as reproduced in The Making of Commonwealth Administrative Law—R Creyke & J McMillan (comps) 1996, Centre for International and Public Law, Law Faculty, Australian National University, Canberra.

^[3] (2008) 82 ALJR 1147; 248 ALR 390; [2008] HCA 31.

^[4] [2007] FCAFC 59; (2007) 158 FCR 525.

^[5] (1979) 24 ALR 577 (Bowen CJ, Deane and Smithers JJ); [1980] FCA 85; (1978) 1 ALD 167; (1980) 31 ALR 666.

^[6] [2006] HCA 63; (2006) 228 CLR 152.

^[7] See the discussion of some of these questions in Aerolink Air Services Pty Ltd v Civil Aviation Safety Authority [2003] AATA 1357 at [4]–[7] (Senior Member MD Allen).

^[8] See Kirby J in Shi at [37], describing the matter by reference to Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 at 92–3 (Davies J).