#7234 - Merits Review I - Administrative Law

“[Internal Review is a] process of review on the merits of an agency’s primary decision. It is undertaken by another officer within the same agency, usually a more senior officer”

ARC, Internal Review of Agency Decision Making

• Internal review is advantageous because it is a quick, inexpensive and relatively simple means of ensuring personal contact between a citizen and an agency. It ensures that proper consideration is given to issues within an agency at a senior level prior to an external review body review sit.

• Peer assessment (central to internal review) has a significant normative impact on fellow officers in an agency because it is the least public form of review and the most effective for applicants and decision makers.

• It has the potential if taken seriously, to alert the agency to deficiencies or discrepancies in decision-making and act as a platform to fix them and improve decision-making overall

• Internal review can be established by either administrative action or statute (e.g. FOI statutes – before decisions to review access are reviewed by court it should be reviewed by a more senior officer).

  • In NSW Internal review isn’t mandated by can be requested for all decisions that are reviewable (ADTA Act s53, 54)

• Issues arise where internal review schemes are established by executive action

  • Confirmation of an earlier decision by an agency with no statutory/administrative scheme in force doesn’t amount to de facto internal review (Re Uniway Pty Ltd v Customs [1999]); regular practice has to be instituted administratively before the internal review scheme is recognized.

  • Referral for internal review not in accordance with statutory criteria for internal review is invalid (Meschino v Secretary, Department of Family and Community Services [2001]); if statutory schemes are in force, internal review based on executive power cannot be relied upon

• Other disadvantages on the reliance on executive authority for the basis of internal review are

  • The lack of criteria for reviewability for the decisions

  • The absence of any formal imperative to seek review

  • Doubts as to the circumstances in which external review of internally reviewed decisions may be conducted

• The powers of the officer conducting internal review are subject to the same statutory criteria and legislative limitations as the primary decision maker

  • In Re Taxation Appeals [1997] AAT the tribunal found that the decision-making powers of the Comptroller General under the Customs Act 1901 where limitations that had to be observed in making both the original and internal review decision

• But a tribunal reviewer can take account of new evidence that has arisen since hte primary decision – generally this is the most frequent reason for decisions to be varied by internal review

• Internal review can:

  • Be triggered on request or by the agency of it’s own motion

  • Can be reconsidered if no valid decision has been made due to a jurisdictional error (Bhardwaj)

• Disadvantages of internal review:

  • Risk of perception by the public of a lack of impartiality on the part of review officers

  • Can prevent speedy resolution by an external review body

  • Agencies can charge extra for internal review; adding to the cost of administrative review

  • Adds another layer to the already complex review process which can be confusing

    • In Re Wolstencroft and Commssioner for Superannuation (applicant’s late election to preserve superannuation refused) the plaintiff appealed to the AAT who found that internal review would have to be undertaken first, he was refused again and appealed once again

      • The members commented that ‘Even Union officials...were confused as to the correct order of the review steps

    • A possible solution is to follow set requirements like in s27A of the AAT Act

• But these disadvantages have to be weighed up against the advantage (cost-effective, efficient means of ensuring accountability etc.

  • In 2006-07, 32% of primary decisions were overturned on internal review

• Where internal review exists it generally takes the form of a ‘review on the papers’ or through a telephone call

  • The ARC has recommended that “agencies should continue to explore opportunities for early resolution of issues through personal contact with applicants”

• How extensive it should be is another issue

  • The ARC has recommended that, if it is to have any value, the review should be de novo taking into account new evidence (Department of Veterans’ Affairs found this to be the chief reason for overturning of decisions)

  • They also controversially recommended that agencies should recognized that applicants are entitled to act through representatives and that agencies should consider legislative rights to representations

• The chief reason why Australia has committed external merits review to Administrative tribunals is that administrative review tribunals is constituted and functions differently to courts and are more suited to undertaking the merit review tasks of examining whether decisions are substantively correct are considering issues of law, fact, policy and discretion.

  • There is also a constitutional impetus lying at the separation of powers doctrine for this (even though it doesn’t operate at state level; it has a broader relevance)

• Australia has one of the world’s most well developed systems of administrat5ive tribunals – with general merit review jurisdiction and specialist tribunals. It has also experimented with different models for tribunal adjudication and its extension to the private sector (focus of this text is public sector)

• Tribunals operate within the same framework of administrative law as all other executive decision makers – and they apply and are subject to the rules of public law

• Some common tribunals include the AAT and its counterpart in the States, the Social Security Appeals Tribunal etc.

• But distinguishing between tribunals and other bodies pose definitional issues – whether an historical or dictionary approach is taken:

  • One good historical definition: “A tribunal is a person or body of persons charged by law with the function of determining rights, privileges, duties or obligations of individual persons or associations of persons...[it is[ required to act judicially and in accordance with procedures laid down by law”

  • Administrative Law Act 1978 (Vic) s2 : “is a person or body of persons (not being a court of law or a tribunal constituted or presided over by a Judge of the Supreme Court) who, in arriving at the decision in question, is or are by law required, whether by express direction or not, to act in a judicial manner to the extent of observing one or more of the rules of natural justice”

• While some have suggested that it is a “court-like body”, the concept of a court is in itself indeterminate – “a body may be characterised as a ‘court’ for one purpose and not another” (Cth v Anti-Discrimination Tribunal (Tasmania) [2008])

• Hence it is clear that ‘tribunal’ isn’t a fixed concept, even though there are features that are ordinarily associated with the word

• Tribunals are generally created by statute to play particular roles outlined in the statute – giving room for flexibility in rules concerning their operation, jurisdiction and procedure

• But there is at times a need to distinguish between different types of tribunals (difficult since categorization, due to specialization, can only be attempted at a broad level).