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Merits Review Ii Notes

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This is an extract of our Merits Review Ii document, which we sell as part of our Administrative Law Notes collection written by the top tier of University Of New South Wales students.

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Merits Review (Pt 2) Contemporaneous Review

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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) o

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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. o

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

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 matterIt is therefore not open to the decision maker to revoke/vary/amend its decision after it is subject of reviewThe 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. o

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

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)

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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

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

Facts

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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:

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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

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The hospital appealed against the delegate's decision to the AAT

Held by the FCA:

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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.

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

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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.

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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 homeHeld by the FCA:

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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.

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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. o

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)

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

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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)

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

Esber v Commonwealth (1992) 174 CLR 430 Facts: Mr Esber received comepsnation payments under the Compensation (Cth Govt Employees) Act 1971 (Cth). s49 of the Act provided that, upon application by a recipient, the Commissioner for Employee's Compensation could pay a lump sum to redeem the weekly payments if it was 'particularly advantageous' or 'desirable in his/her interests. Esber was refused and appealed to the AAT - after it was lodged but before the hearing the Act was repealed and did not contain he redemption procedure. The HCA held that Esber's application was to be determined under the 1971 Act Ratio (Mason CJ, Deane, Toohey & Gaudron JJ):

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s8 of the Acts Interpretation Act provides that 'Where an Act repeals...a former Act, then unless the contrary intention appears the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any act so repealed)

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The appellant, at the time of repeal, had a right to have his application determined to Pt V of the 1971 Act, not a right to a favourable determination but a "conditional one...conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional".

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In the absence of any contrary intention this was protected by s8 of the Acts Interpretation act

Brennan J dissented, holding that Mr Esber didn't have a right but just a 'hope or expectation that he would become entitled to a redemption payment and hence the normal principle should apply.

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The distinctions referred to are not very clear o

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

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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]) -

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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.

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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 issuedIf 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

Procedure and Evidence - Their Role in Merit Review by Administrative Tribunals

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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.

Administrative Review Council, Better Decisions: Review of Commonwealth Merits Review Tribunals The Council considered that merits review should have several specific objectives:

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Providing review applicants with the correct and preferable decision in individual cases

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Improving the quality/consistency of agency decision making both through the normative effect (ensuring that decisions are reflected by agencies in other decisions) and by taking into account review decisions in the development of agency policy/legislation

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Providing a mechanism for merits review that is accessible (cheap, informal and quick) and responsive to public needs

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Enhancing the openness and accountability of government

Australian Law Reform Commission, Managing Justice: A Review of the Federal Civil Justice System

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In tribunal proceedings there is no necessary conflict between the interests of the applicant and agencies - the public interest 'wins' just as much as the successful applicant because the correct or preferable decision contributes, through its normative effect, to correct and fair administration and to jurisprudence and policy in the particular area.

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The values underpinning administrative review encompass the desire for a review system promoting lawfulness, fairness, openness, participation and rationality. Its provision fits neatly into the pluralist/participatory democracy.

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The Commission also considers legislation emphasise the administrative/investigative character of tribunal process to permit enhanced inquiry, discontinuous hearing process and resolution on the papers.

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Co-operative training between tribunals and govt departments/agencies whose decisions under review could also be beneficial

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Legal rules applying to tribunals are often no different to those applying to other decisionmakers in the executive o

They are hence liable to be set aside if they are contrary to natural justice, if there is no evidence to support a finding or if irrelevant considerations are taken into account

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It also depends on the type of tribunals - tribunals more judicial in nature may have to meet higher standards of natural justiceIn Re Farnaby v Repatriation Commission, Downes J and R J Groom of the AAT held that privilege applied to the AAT but may not to other tribunals.

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The appropriate course is to "look at the nature of the proceedings in the Tribunal and to see whether they have characteristics sufficiently analogous to court proceedings to compel a conclusion that the proceedings attract legal professional privilege"

Common structural models for tribunal procedure

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Statutes are the first point of reference in ascertaining tribunal procedure - sometimes procedural rules are specific to the function/jurisdiction of a tribunal o

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e.g. the Migration Act Pt V and VII lay down codes for the Migration and Refugee Review Tribunals in recognition of the different types of decisions and different categories of information they review and consider

But it is possible to generalize proto-typical models which influence the legislative design of tribunals (the models outlined in the textbook aren't mutually exclusive, sometimes tribunals fit one for certain decisions and other for others): o

Adversarial Adjudication - primary role is to resolve disputes presented by parties who are chiefly responsible for defining the issue to be resolved b presenting evidence and making submissions (normally at a public hearing where the appear, present oral evidence on oath and may be represented by lawyers). The centrality of the hearing in this method of adjudication is evidenceThe AAT presents many of these features but not in the pure form:

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The obligation to reach the correct or preferable decision places an independent responsibility on it to define issues, illicit evidence etc.

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It isn't bound by the rules of evidence, and neither party bears the onus of proof

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