The allocation of merits review rights in Australia: anomaly and variation
This post is part of AUSPUBLAW's forum discussing the abolition of the Administrative Appeals Tribunal and the proposed Administrative Review Tribunal.
22.3.24
The abolition and replacement of the Administrative Appeals Tribunal ('the AAT') is a landmark moment in the development of Australian public law. It is not, however, a fundamental change when it comes to the form, operation and function of merits review in Australia. In fact, the approach to the abolition and replacement of the AAT affirms the model of merits review which has come to be commonplace, across Australian jurisdictions, over the course of five decades. The establishment of the Administrative Review Tribunal ('the ART') represents a continuation of that model, with some important tweaks (especially in the area of decision maker appointments processes).
While this process of replacement of Australia’s primary Federal merits review tribunal is as much a story of consistency as it is of change, it does not mean that there is perfect consistency in the Australian merits review landscape. The Administrative Review Tribunal Bill 2024 ('the ART Bill') and its companion legislation are focused on establishing a new tribunal, and do not effect substantial change to the primary legislation which confers the AAT (and will confer the ART) with jurisdiction to review government decisions of various types. There has long been, and will remain, variation in merits review rights which is, at least in some cases, not well justified. We argue in this post that there is reason for a wider examination of primary legislation, to consider whether there is value in pushing for greater consistency in the enjoyment of merits review rights.
Differences in merits review rights
Merits review rights are an important part of the process for ensuring meaningful access to review of government decisions, promoting administrative justice and accountability. Merits review was recognised, in the Attorney-General’s second reading speech in relation to the ART Bill, as 'critical to Australia’s system of government'. The consistency in form and operation of merits review, over the decades since the establishment of the AAT, has also been recognised by the courts. The High Court has relied on the 'regime of administrative merits review, distinguished principally by the AAT's jurisdiction to re-exercise the functions of original administrative decision-makers', interpreting legislation bearing on merits review rights against this expectation. It has also endorsed, as a 'landmark decision', a decision that a merits review tribunal may undertake review even of an invalid decision, not lightly to be departed from. It has accepted that it is inherent in the AAT’s review function that there not be 'further re-exercise of a power by a primary decision-maker after re-exercise of that power by the AAT'. In these important respects, the High Court has articulated a set of ordinary expectations as to the operation of merits review.
That said, it is entirely understandable, and defensible, that merits review rights might vary depending on the subject matter of the decisions under review. In some instances, the subject matter of a government decision renders it inappropriate for merits review. Notably, it is a longstanding fact of Australian public law that, in matters involving national security questions, hearing rights (including procedural fairness entitlements) in merits review tribunals are heavily constrained. In other cases, it is appropriate that some decisions are subject to merits review, and others are not. For example, the Australian Citizenship Act 2007 (Cth) provides for merits review of a decision under s 24 to refuse Australian citizenship based on the applicant having failed successfully to complete the citizenship test. However, the decision of the Minister to approve this citizenship test in the first place (under s 23A) is not subject to merits review. In respect of the latter category of decision, it is appropriate that scrutiny and accountability come through the political process, rather than through merits review.
Unjustified variations in merits review rights?
However, not all limitations on merits review rights in primary legislation are well justified. In particular, there are variations in the content of merits review rights in Commonwealth legislation (that is, variations in the form of merits review provided, even where a merits review right is conferred) which seem anomalous. As we discussed in our Administrative Review Reform submission, there are inconsistencies in merits review rights which are difficult to justify. By way of further illustration, we note the following two examples of variation in merits review rights which are at least arguably unjustified.
First, s 500(6H), s 500(6J), and s 500(6L) of the Migration Act 1958 (Cth) ('the Migration Act') impose limitations on new evidence in reviews of decisions to cancel visas on the grounds of character. The limitations in s 500(6H) and s 500(6J) prevent the AAT from considering any new information or documents not provided to the Minister at least 2 business days before the AAT holds a hearing. This limitation exists regardless of the relevance of the material, or the date it became known to the non-citizen. This means material that could fundamentally change the outcome for the non-citizen must be excluded by the AAT in their consideration of the matter, if not provided in time.
The AAT is further constrained by the ’84-day rule’, in s 500(6L), which requires the AAT to make its decision with 84 days after the non-citizen was notified of the decision. This puts pressure on the AAT to make a decision quickly, shifting the focus from making the correct decision to making one within time, which has been described by the AAT as ‘sub-optimal decision-making’. These provisions were justified on the basis of the long AAT processes which left 'the non-citizens involved, many of whom have committed serious crimes, either ... in detention at great cost to the taxpayer or ... at liberty in the community'. This justification for constraining merits review rights in the context of 'character cancellation’ decisions is at least somewhat undermined by the 'mandatory cancellation’ regime, introduced after the introduction of s 500(6H), s 500(6J), and s 500(6L) of the Migration Act. Mandatory cancellation was intended to provide a greater opportunity to ensure non-citizens who pose a risk to the community will remain in either criminal or immigration detention 'until they are removed or their immigration status is otherwise resolved'. Insofar as the justification for the limitations on new evidence in visa cancellation matters lies in the risk that it will draw out merits review processes, prolonging the presence of non-citizen offenders in the community, this is entirely obviated by mandatory cancellation, which results in the immigration detention of the non-citizen.
A second departure from the ordinary rule that a merits review tribunal stands 'in the shoes' of a decision maker whose decisions it reviews is found in s 14ZZK of the Taxation Administration Act 1953 (Cth). This provision limits the grounds of objection to a tax assessment which a taxpayer may advance at the AAT. This is a limitation of very long standing. In the 1930s, a Royal Commission justified this limitation on the basis that a taxpayer was 'conversant' with relevant facts in a way the Commissioner was not.
The same justification is relied on in the explanatory memorandum for the ART Bill, affirming the maintenance of this limitation in matters to be heard before the ART. It is not clear whether, in the modern world and the modern tax system, the same rationale holds. The tax system is vastly more complex than it was when this limitation on merits review was created. In any event, given the development of the merits review system, there is good reason to consider whether it is reasonable to have merits review in the tax system operate on a different (and more confined) basis than merits review more broadly.
Another interesting case is that of merits review under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) ('the EPBC Act'). Save for a small group of statutory powers, the exercise of power under this Act is not subject to merits review. While, as noted above, many statutory powers are not subject to check by merits review, it is striking that decisions relating to approval of projects with major environmental impact under this Commonwealth legislation are not merits reviewable. These are, after all, decisions of wide public interest, and frequently have a profound and widespread impact.
The EPBC Act replaced the Environment Protection (Impact of Proposals) Act 1974 (Cth). That Act predated the creation of the AAT, and did not provide merits review rights of the sort which have become standard in the years since the AAT was created. It is not clear that there was any substantial consideration of merits review rights, at the time of the passage of the EPBC Act.
Two reviews of the EPBC have been conducted, in accordance with a statutory mandate. Both of these reviews have recommended merits review rights in respect of decisions to approve developments with environmental impact. The Hawke Review, made public in 2009, proposed merits review rights be provided in respect of certain intermediate decisions leading to a final project approval. The Samuel Review, made public in 2020, proposed 'limited merits review', constrained in various ways including by the imposition of time limits, by allowing only the consideration of the evidence as it stood at the time of the original decision, and by permitting a decision to be reopened only where there was an incorrect exercise of discretion or where the decision was unreasonable.
In neither case did the recommendations of these Reviews lead to the creation of merits review rights. The Commonwealth government has indicated it will not make merits review available in respect of a wider range of EPBC Act decisions, in its upcoming revision. Merits review therefore remains unavailable in respect of most EPBC Act decisions.
These are a few examples of the variations in enjoyment of merits review rights in respect of Commonwealth government decisions. It is not clear that there is a sound justification for each of these variations. The process of consideration of the ART Bill is an opportunity to ask the question of whether merits review rights are rationally allocated in Commonwealth law.
Conclusion
The groaning Commonwealth statute book is the product, in important respects, of the historical contexts in which legislative decisions have been made, and the particular politics of each given legislative measure. It would be absurd to suggest that there should be perfect consistency in merits review rights, across Commonwealth legislation. Nonetheless, the creation of the Administrative Review Tribunal should also be the occasion for some scrutiny on whether merits review rights are provided in an even-handed and rational way. There are anomalies which deserve attention. Now seems like a good time to ask the question of whether they can be justified.
Joel Townsend is Director of Monash Law Clinics, a community legal centre associated with the Faculty of Law at Monash University.
Emily Singh is Principal Lawyer/Practice Manager and a Lecturer (Practice) at Monash Law Clinics, a community legal centre associated with the Faculty of Law at Monash University.
Suggested citation: Joel Townsend and Emily Singh, ‘The allocation of merits review rights in Australia: anomaly and variation’ on AUSPUBLAW (22 March 2024) <https://auspublaw.org/blog/2024/3/the-allocation-of-merits-review-rights-in-australia-anomaly-and-variation/>