#7238 - Merits Review Ii - Administrative Law

Unless the statute indicates otherwise, the tribunal looks at the matter anew, according to the facts and circumstances as they exist at the date of review – this is referred to as de novo as opposed to historical review (Drake, Shi, Greenham)

• But often supervening changes can occur in the law, the facts or the outlook of the administration

One example of a change in administrative outlook is a reconsideration of an agency decision, for example the agency may think it prudent to revise the decision and make the tribunal proceedings unnecessary.

• The rule in this case is that, once appealed to a merit review tribunal, the decision becomes the responsibility of the tribunal and the agency has no independent authority to alter/tamper with the decision (Re BloomField and Sub-Collector of Customs, ACT (1981) R K Todd:

  • Once an applicant applies for review of a decision, no power to deal with the matter remains in the respondent decision-maker. The whole thrust of the AAT Act is that the decision is before the Tribunal for review and it must make its own decision on the matter

  • It is therefore not open to the decision maker to revoke/vary/amend its decision after it is subject of review

  • The power of the Tribunal to dispose of an application isn’t terminated by the consent of the parties – the Tribunal must arrive at a decision and the consent of the parties will be a valuable aid to this but it will not abrogate the Tribunal’s role

• But legislation can override this rule and give an agency the power to alter ad ecision. After Bloomfield the AAT act was amended to provide that applicants can withdraw reviews after lodged (s42 A) or that the tribunal can endorse a consent settlement reached by the parties (ss 26 52C)

An intervening change in the facts is also common – as in Shi. In that case, just as evidence was received in support of his migration practices, evidence could have been presented working against his fitness. The key point is that there may be a temporal element in decisions being reviewed.

• Whether or not matters occurring after the decision was made can be taken into account depends on the construction of the particular statutory provision

  • This explains the difference in the FCA and HCAs reasoning – the FCA construed the power Migration Act as a disciplinary power while the HCA construed it otherwise

• Decisions dealing with social support benefits are similarly illustrative;

  • Freeman v Secretary, Department of Social Security [1988] – the correctness of a decision to cancel a person’s social support is assessed at the date of cancellation (supervening circumstances not to be taken into account). Decisions cancelling benefits bring to an end an entitlement which is only revived on the lodgement of a proper claim for its grant.

  • In contrast a tribunal reviewing a decision to refuse a pension should consider entitlements up to the date of the tribunal’s decision and thus the tribunal may find an entitlement any time during the continuum of time since the primary decision and their own (Jebb v Repatriation Commission)

• But this is subject to the qualification that legislation may stipulate otherwise – e.g. if it provides that initial and subsequent eligibility depends on an application having complied with statutory criteria at a point in time

• It is a fine distinction – as illustrated in Hospital Benefit Fund of WA Inc v Minister for Health, Housing and Community Services [1992]

  • Facts

    • Minister had statutory power to disallow change to rules of a health insurance organization if in his/her opinion the change [‘imposes an unreasonable or inequitable condition affecting the rights of any contributors:

    • A delegate of the minister disallowed a rule that imposed a waiting period of 5 years before new contributors could obtain benefit coverage for IVF

    • The hospital appealed against the delegate’s decision to the AAT

  • Held by the FCA:

    • The applicant’s argument that it would be inconsistent with the statute, which provides that the Minister is concerned with the effect of the change as at the date it is made, if later events are taken into account since a change that didn’t appear unreasonable/inequitable may be set aside as later events made it so.

    • The Tribunal is bound to address the same decision as before the primary decision-maker

    • In considering the position at the date of the rule change, the Tribunal is not confined to the historical position. It is entitled to receive evidence as to prospective developments in relation to IVF as they appear at the date of the rule change.

      • Reason: Account may be taken of predictable developments

• A similar distinction was drawn in Aged Care Standards and Accreditation Agency v Kenna Interests [2004]

  • Facts: AAT was reviewing a decision to vary the accreditation of a nursing home

  • Held by the FCA:

    • The tribunal was restricted to looking at facts pertaining to the time of the Agency’s decision since the Agency could only act pursuant to an audit report and had to do so within 14 days of reccieving that report.

    • If the AAT was able to look at subsequent improvements it would be undertaking a process ‘quite different...from that of the Agency’

An intervening change in the law can arise where legislation to be applied by a Tribunal is amended while the matter is before the Tribunal. Generally the amending law will have a transitional provision stating whether it applies to tribunal proceedings that are underway.

• If not the general principle is to decide the case by reference to the facts and matters (including the law) as they stand at the date of the tribunal’s decision (Kavvadias v Commonwealth Ombudsman [1984] – in the context of FOI exemption)

• Evidently a change in legislation can disadvantage or advantage the applicant.

• Furthermore amending provisions can lay down new procedural rules that change the manner in which proceedings are to be conducted, or they lay down new evidentiary rules for ascertaining whether an applicant qualifies for a benefit or license (Rodway v R [1990] HCA)

• The EXCEPTION to this picture is that accrued rights are not diminished by a change in the law (Esber v Cth)

The distinctions referred to are not very clear

• Re Costello v Department of Transport – Review of decision pilot’s license didn’t involve consideration of accrued rights but an ‘investigation whether the applicant has a present entitlement to the grant of a right or privilege.’ Hence the law at the time of the Tribunal’s decision is to be applied

• This is similarly applied for denying development/planning approval (Rovertson v City of Nunawading [1973] and also, in general, claims for social security are determined by legislation at force at the time – at least if it was more beneficial at that date (Re Cirkorovski and Secretary, Dept of SS [1992]) –

• Gnerally the lodgement of a claim gives rise to an accrued right, this substantially undermined the governing principle of merits review that decisions are assessed in accordance with the law in force at the time of the decision.

• Principles are further refined in the veteran’s jurisdictions with Statement of Principles (whether a disease of a specified type was attributable to war service) can be issued

  • If the SOP is not favourable, the law in force at the date of lodgement is applied as if an accrued right existed; if it is favourable then the law at the date of decision (the SOP) applies

Administrative tribunals (as an institution) and merits review (as a concept) are intertwined in many ways – the procedural style of tribunals (how they hear parties, elicit facts, work through problems, explain decisions) is central to fulfilling their function of making the correct or preferable decision in any context.