The Rise and Rise of Merits Review: Implications for Judicial Review and for Administrative Law

THE RISE AND RISE OF MERITS REVIEW: IMPLICATIONS FOR JUDICIAL REVIEW AND FOR ADMINISTRATIVE LAW

The Hon Justice Janine Pritchard*

Much of the focus of the teaching of administrative law in universities, and of the academic discussion of administrative law, is on judicial review and
its importance in the review of administrative action. In the past decade there has been a resurgence of interest in judicial review, and significant
judicial development of some key principles concerning judicial review. In contrast, merits review has, for the most part, escaped much of that attention.
Yet there is a strong argument that merits review is no less significant than judicial review as a means for obtaining the review of an administrative
decision. My aim in this paper is to explore some of the reasons why that is so. I do so by considering the extent to which, and the areas in which,
judicial review and merits review are being pursued in courts and tribunals, to examine the similarities between the judicial method at the heart of
judicial review and merits review, and to consider the implications of these issues for the future development of administrative law. As we are approaching
the 10 year anniversary of the establishment of the Western Australian State Administrative Tribunal (SAT) in January 2015, it is an opportune time
to reflect on the place of merits review within administrative law.

In this paper, I will explore three issues:

1. the practical significance of merits review in achieving the objectives of administrative law;
2. the judicial method at the heart of judicial review and merits review; and
3. the implications of these issues for the role of judicial review and merits review as avenues for the review of administrative decisions, and for future
   policy development.

I should say at the outset that some of these issues have previously been discussed by others, and in preparing this paper I have been particularly assisted
by a paper prepared by the Hon Justice Duncan Kerr, President of the Administrative Appeals Tribunal (the AAT), in 2012,^[1] and by a paper written by Professor Peter Cane in in 2000.^[2]

The context for the discussion in this paper is primarily the position in the Western Australian Supreme Court and SAT.However, I have also endeavoured
to draw some comparisons with the position in the Federal Court and the High Court, and in the AAT. Those comparisons suggest that the position in
Western Australian is not markedly different from those other Australian jurisdictions.

The practical significance of merits review in achieving the objectives of administrative law

The objectives of the review of administrative decisions

Before we can begin to assess what significance merits review might have in achieving the objectives of administrative law, we need to bear in mind the
objectives of administrative law remedies which permit the review of administrative decisions.

In a broad sense, the underlying objective of all administrative law remedies can be summarised as being to promote observance of the rule of law. But
a number of forms of relief falling under the administrative law umbrella are directed to the even broader objective of promoting good governance.
These broad objectives may be achieved in a number of ways: through the availability of remedies to restrain the unlawful exercise of administrative
power, including administrative decisions and subsidiary legislation; the availability of remedies to enable the correction of decisions which do not
represent the correct or preferable exercise of discretionary decision making power; and the grant of rights the exercise of which tends to increase
accountability for, and the transparency of, administrative action (such as rights to the provision of reasons for decisions, or rights of access to
documents under freedom of information legislation) and which tend to produce more consistent administrative decision making at first instance.

Judicial review and merits review in Western Australia – the facts

In Western Australia, judicial review of the decisions of inferior courts, tribunals and other administrative decision-makers is available through the
grant of the prerogative writs, or injunctive or declaratory relief, in the Western Australian Supreme Court.^[3]Merits
review for a wide range of administrative decisions is available in the SAT.

The statistics below reveal that the number of applications for judicial review which are brought each year in the Supreme Court of Western Australia is
very small, particularly when compared with the number of applications for merits review which are brought in the SAT each year.

The number of applications for prerogative relief commenced each year in the Western Australian Supreme Court, compared with the total number of civil
actions commenced by writ, and compared with the total number of civil actions commenced in the Court, are set out in Table 1 below.^[4]

Table 1 – Supreme Court Judicial Review Applications and Civil Lodgments: 1998 – 2013

(The significant difference in the number of judicial review applications in 2000 and 2001 appears to be an anomaly which resulted from amendments to workers’
compensation legislation in this State.)Each initiating application in the table above is counted equally, whether it be a writ which commences an
extremely large and complex piece of commercial litigation, or an application by a mortgagee to repossess in the event of a mortgagor’s default on
loan repayments.I immediately acknowledge that any comparison of raw figures is therefore highly flawed because those raw figures say nothing about
the substance of each matter. The point of starting with the raw figures, however, is simply to provide an overall impression. That impression could
not be clearer: judicial review applications constitute a very small proportion of the civil applications brought in the Supreme Court of Western Australia.

Of course, not all applications which are filed result in the delivery of a judgment. Table 2 below sets out the number of ‘final’ judgments delivered
by the Court since 2000 in judicial review applications (that is, excluding reasons delivered in respect of applications for orders nisi).

Table 2 – Number of Final Judicial Review Judgments Delivered 2000 – 2014

The next line of inquiry is to identify the factual context for the applications. Table 3 attempts to broadly categorise the 112 judgments the subject
of Table 2 above.

Table 3 – Judicial Review Judgments 2000 – 2014

There is some overlap in the categories in the table above – for instance, ‘applications related to planning decisions’ would include some decisions of
the SAT, which overlap with ‘applications relating to decisions of SAT’. However, no application has been counted twice.

The judicial review decisions published by the Court since 2000 have been focused in certain areas – prisons, workers’ compensation, mining, planning,
and ministerial decision making, particularly in the environmental context. With the possible exception of planning matters, there are few applications
for judicial review in subject areas where there exists the alternative option of pursuing merits review.

The SAT position

The SAT has both original jurisdiction and review jurisdiction.^[5]The
SAT has review jurisdiction if an enabling Act provides that an application may be made to the SAT to deal with the matter concerned and that matter
expressly or necessarily involves a review of a decision.^[6]According
to SAT’s annual report for 2012/2013, SAT derives its review jurisdiction from more than 150 enabling Acts,^[7] in areas as diverse as Aboriginal Heritage, Animal Welfare, Building, Child Care, Construction Contracts, Firearms, Fisheries, Local Government, Planning,
Taxation, Taxis, Vocational licences, and Working with Children authorisations.

The number of applications for merits review filed in the SAT in each year since 2005 is set out in Table 4 below. To give those figures some context,
I have also included a comparison of the total number of applications in the SAT’s original jurisdiction and in each of the key areas of the SAT’s
original jurisdiction (namely applications under the Guardianship and Administration Act 1990 (WA)and under the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA)).

Table 4 -The Number of Applications for Merits Review Filed in the SAT: 2005 – 2014

Some federal comparisons – the Federal Court, High Court and AAT

The Federal Court

The jurisdiction of the Federal Court to deal with judicial review derives from s 39B of the Judiciary Act 1903 (Cth) in respect of applications
for judicial review of decisions by officers of the Commonwealth in respect of which an application under s 75(v) could have been made to the High
Court, and from the Administrative Decisions (Judicial Review) Act 1977 (Cth),^[8] which provides for the judicial review of decisions made under Commonwealth ‘enactments’.

It is not entirely clear from the Federal Court’s 2012/13 Annual Report how many of the matters commenced in that financial year were judicial review applications,
because the Report refers to matters by subject rather than by the nature of the application. With that rider, however, it appears that 87 Administrative
Law matters, and a further 11 Migration matters, were commenced in the 2012/2013 year. In the same period, 1,564 matters were commenced.^[9]If
it is assumed for the moment that all ‘Administrative Law’ and ‘Migration’ matters were judicial review applications (and not all of them may have
been), judicial review applications made up approximately 6.26% of the number of matters commenced in the 2012/2013 year.

A better indication of the nature and extent of the judicial review work done by the Federal Court can be gleaned from considering the published decisions
of the Court. In the last three years, approximately 300 substantive judicial review decisions were delivered in the Federal Court. Those decisions
can be broadly categorised as follows:

• 43% involved a review of a decision of the Immigration Minister;
• 16% involved a review of a decision of another Minister (Finance, Environment, Justice, Infrastructure and Transport, Attorney General, Home Affairs,
  Health);
• 12% involved a review of a decision of a regulatory board or authority (eg Australian Communications and Media Authority, Takeovers Panel, Civil Aviation
  Safety Authority, Information Commissioner, ASIC, Food Standards Aust-NZ);
• 9% involved a review of a decision of the Commissioner of Taxation, Police or Patents;
• 18% involved a review of a decision of the Federal Magistrates Court or of a federal tribunal (eg Superannuation Complaints Tribunal, Native Title
  Tribunal, Fair Work Commission, AAT, Anti-Discrimination Boards, Competition Tribunal); and
• 2% involved a review of other decisions (e.g. Australian Research Council, Australian Postal Corporation, Universities).

The High Court

For completeness within the federal context, it is appropriate to mention the judicial review jurisdiction of the High Court.

The High Court has power to issue writs of certiorari, mandamus and prohibition pursuant to s 75(v) of the Constitution. The High Court’s 2012/2013
Annual Report indicated that the number of applications for ‘constitutional writs’ filed in the High Court in 2012-13 was 84, which was down from the
170 applications filed in 2011-2012.^[10]There
were just over 100 applications in 2010-11, of which approximately 95 were in immigration. There were only 40 applications in 2009-10 of which 30 involved
immigration. There were 40 applications filed in 2008-09, of which approximately 25 involved immigration.^[11]

When it comes to the number of decisions delivered by the High Court (reflecting matters that actually proceed to a hearing in the Court) the numbers are
significantly lower. In each of 2013 and 2012, five of the Court’s 61 decisions were decisions made in relation to matters arising under s 75 of the
Constitution.

Merits review in the AAT

As with the SAT, the AAT’s merits review jurisdiction depends upon conferral of jurisdiction upon it under another Act.^[12]

The 2012/2013 Annual Report for the AAT divides its workload into the following areas: social security, veterans’ affairs, workers’ compensation, taxation,
immigration and citizenship, and other.

6,176 applications were lodged at the AAT in 2012/13, 241 of which related to immigration and citizenship and 1,471 of which related to taxation.^[13]

In the areas of immigration and taxation, in particular, there appears to be a degree of overlap with the subject matter of cases that are heard in the
Federal Court.^[14]

Conclusions about the significance of merits review vis-a-vis judicial review as an avenue for the review of administrative decisions

There is clearly a very significant disparity between the raw number of judicial review applications commenced in the Supreme Court or the Federal Court
or High Court, on the one hand, and the number of merits review applications commenced in the SAT or the AAT on the other hand. In the absence of information
as to why litigants choose a particular forum, it is impossible to do more than speculate about the possible reasons why so many more merits review
applications are made.Nevertheless, a range of possible reasons come quickly to mind, including:

• cost of litigation;
• speed of litigation;
• informality / ‘user friendly’ tribunal setting – may be more suitable for self-represented litigants, as compared with the formality of court proceedings
  and the technicality of prerogative writ applications in particular;
• review based on the facts at the time of the review;^[15]
• availability of reasons in respect of the decision at first instance;^[16]
• tribunal rules and procedures which require the decision maker to put material before the Tribunal and to assist the Tribunal;^[17]
• specialist tribunal member input in the merits review process;
• remedies – especially the possibility of substituting the original decision with the correct and/or preferable decision by a tribunal (cf referring
  the matter back to the original decision maker in judicial review); and
• merits review may include examination of the legal framework (and of the legality) of the decision under review.

Whatever the reason, the point remains that the figures set out above suggest that in practical terms, merits review is far more significant than judicial
review as an avenue for the review of administrative decisions, because more applicants avail themselves of merits review than of judicial review when
they are dissatisfied with an administrative decision.

However, despite the relatively small numbers of judicial review applications, the judicial review jurisdiction of the High Court and of State Supreme
Courts remains of fundamental importance, for two reasons. First, the High Court’s jurisdiction under s 75(v) of the Constitution, and the
supervisory jurisdiction of State Supreme Courts to review the decisions of inferior courts and tribunals for jurisdictional error, cannot be excluded
or eroded by legislation.^[18]In
contrast, a right to merits review exists only by virtue of legislation. That right could be abolished or eroded if the legislature saw fit to do so.
Secondly, the importance of the independence of the Courts from the executive government should not be overlooked. In contrast, the independence of
tribunal members could be undermined by legislative amendment, such as by removing or limiting the security of tenure of tribunal members, if the legislature
saw fit.

The judicial method at the heart of judicial review and merits review

In this part of the paper, I explore one of the possible reasons why a litigant might prefer to pursue merits review (if that course is open), instead
of judicial review, namely that in the course of a merits review, it is open to the tribunal to examine the legal framework for (and the legality of)
the decision under review, as well as its merits.

The orthodox view is that judicial review and merits review are like oranges and apples – that is, that they are qualitatively different exercises^[19] with little in common. Particularly in the context of merits review,[20] however, the orthodox view does not withstand scrutiny. That is because a very similar judicial method is applied in merits review and judicial review.

A court undertaking judicial review will examine the decision under review having regard to the source of power to make the decision (ordinarily a statute)
and to the parameters for the exercise of the decision making power which are set out in the statute. Leaving to one side those cases where judicial
review of a decision is sought for error of law on the face of the record, or for a denial of procedural fairness, the court’s role in a judicial review
will be (i) to identify the decision in question, (ii) to engage in statutory construction so as to ascertain the parameters of the decision making
power under the statute, and (iii) to determine whether the decision-maker fell into jurisdictional error by exercising the decision making power in
such a way as to fall outside the parameters established by the statute for the exercise of that power.

In the context of a merits review, the tribunal must stand in the shoes of the original decision maker and exercise the decision making power de novo.
[21]

The tribunal will ordinarily be charged with determining the correct and/or preferable decision at the time of the review.[22]In
this context, a ‘correct’ decision ‘might be taken to be one rightly made, in the proper sense’, while a ‘preferable’ decision is ‘apt to refer
to a decision which involves