ADMINISTRATIVE REVIEW ON THE MERITS lecture 2 Spring, 2013 (2).pptx

8/14/2019 ADMINISTRATIVE REVIEW ON THE MERITS lecture 2 Spring, 2013 (2).pptx

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ON THE MERITS

ADMINISTRATIVE REVIEW


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Internal Review

Original decision maker

Formal or informal internal review

specialist tribunals e g SSAT

member of Parliament


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External Review

Administrative Appeals Tribunal (CTH)

Administrative Decisions Tribunal (NSW)


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Member of Parliament

Free

Can make representations to Ministers responsible

for government departments

Cant intervene once a matter is before the courts.


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Internal Review

Often not referred to in the Enactment itself.

Internal review may be a pre-requisite to judicial review or external review.

May need your clients file.Freedom of Information application may berequired

More review stages, possibly someone along the way will say yes

A good solicitor is practical first and legalistic second: friendly negotiationand a little psychology brought to bear on the bureaucracy will solve a hundredtimes more cases than you will ever win by securing a place for your client in

the law reports. (233)

Intimidation factor


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Formal Internal Review

Merits

Relatively informal

Institutionalised..form of quality control; client appeasement; dealing withhigh volume decision making

Crekyke (p234) re Formal review : Reduction of applications for external review= cost saving Need to do more than simply review the material used by the first decision maker Evaluate system Are there systemic defects? Defects in Policy? Procedural problems? Internal review varies from department to department Large caseload areas, internal review has been institutionalized. Independence an issue Relatively successful.eg Social Security 30-40% give a decision favourable to the applicant Relatively quick NoteAdministrative Decisions Tribunal Act1997 (NSW) , s53: institutionalisation of internal review


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External Review: Specialist review

Cheaper

Faster

Less formal

Often can not only review decisions but also remakethe decision.

Criticism re Tribunals is the diversity


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AAT caseload

Most cases are resolved without a final hearing 2003-4; 24% withdrawn or dismissed5% decision affirmed by

consent; 33% decision set aside by consent;; 12% decision wasvaried by consent and in less than 1% was it sent back to the

decision maker by consent

Final hearing (22% of cases)2003-412% upheld originaldecision; 6% set aside decsion;2% dismissed for non-appearance

Few successful appeals to the Federal Court


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AAT -Structure and Procedure

President= Federal Court Judge; hold office until70 or ceases to be a judge

Presidential members = judges; 70 or cease to be ajudge

Deputy Presidents= legal practitioners with 5 years+ experience; 7 year term

Senior Members and members= appointed by theGG; 7 year term

Constitutional Problems? SeeDrake v Ministerfor Immigration and Ethnic Affairs(1976)


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Jurisdiction

No general power to review administrative decisions.

Only decisions that are reviewable by legislativeprovision.egSocial Security Act ; Migration Act

400 + enactments S25(6), Tribunals jurisdiction may be modified by

the enactment allowing review


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ec s ons no appropr a e or mer sreviewARC

Nature of the decision: Eg preliminary or procedural decisions Decisions of a law enforcement nature; Policy decisions of a highly political nature

Nature of the effect of the decision: Eg decisions to delegate a power or appoint a person to perform a

specific function; Recommendations to the ultimate decision maker

Costs of review: Eg decisions with limited impact ; Where extensive enquiry has been involved


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ec s ons appropr a e orEXCLUDING merits review

Nature of the decision : Eg Decisions made in reference to government policy;

Decisions affecting national sovereignty or the prerogative power

Nature of the decision maker: Expert decision makers

High status decision makers

Effect of the decision: Eg publication of reports;

Large numbers may apply for review;

Potential for judicial review


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Jurisdiction

Can the AAT review a decision that was beyond the powerof the original decision maker?

See Collector of Customs( NSW) v Brain LawlorAutomotive Pty Ltd (1979)

Federal Court Bowen CJ : can review a decision even where a decision maker has

purported to make a decision beyond their power. There is nothingunusual in holding that an administrative decision which is legallyineffective or void is susceptible of appeal see 255 of text

Smithers J : taking a liberal construction of sections 25 and 26 of theAAt

Actheld that decisions are reviewable which are made by anadministrator in purported or assumed pursuance of the relevantstatutory provision. See 256 of the text


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Standing

S27 (1).a person affected by the decision.

S27(2)organisation whether or not

incorporatedobjects or purpose of the organisation

S31: decision by AAT that a person has standing isconclusive. However, the Federal Court has held

judicial review is available


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Accessibility

Application must be in writing

decision of whatever it was, made...on whatever day it wasthatwould do, seeRe Knight and Comcare(1994)

28 days

Cost.introduction of a filing fee (approx. $770 +indexation.regulations )

Interpreters?

Procedural complexity


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Procedure

S33(1)as little formality and technicality andexpeditiously as possible

Probative evidence; seeRe Kevin and Minister for Capital

Territory

Procedural fairness

S43 (1) may exercise the powers of the original maker. Government policy? SeeDrake v Minister for Immigration

and Ethnic Affairs


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ADMINISTRATIVE REVIEW ON THE MERITS lecture 2 Spring, 2013 (2).pptx

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