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Merits Review Notes

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10. Merits Review Tribunals

Characteristics of a tribunal
Positive

* A tribunal resolves disputes, primarily by adjudication
*> Types of disputes
- Disputes between citizen and government --> Federal tribunals
- Disputes between citizen and citizen --> State tribunal
*> Adjudicative nature, involves:
- the finding of facts,
- the ascertainment of law,
- the application of the law as ascertained to the facts as found.
Negative

* A tribunal is not a court.The function of the Tribunal is an administrative one: Drake
*> A federal courts established under Ch III of the Constitution has the following characteristics
- Judges hold office in accordance with the terms of s 72
- Security of tenure

* Retirement: at the age of 70

* Can only be removed by Parliament for 'proved misbehaviour or incapacity',

* Remuneration cannot be reduced during their term of office.
Judicial independence.
*> Ch III guarantees a minimum of 'due process', thus limiting the power of the legislature to modify the procedures followed by courts exercising federal judicial power; but Parliament's power to specify procedures to be followed by tribunals is not so limited.
- For example, s 75(v) has been interpreted as guaranteeing a minimum of judicial review, which cannot be removed by Parliament.
*> Separation of power
- Federal level:

* Strict version of separation of powers derives from Ch I, II and III of the Constitution.
- State level

* Separation of power is not constitutionally entrenched so strictly.

* Therefore, at State level, the distinction between courts and tribunals is less clear-cut.
State legislature can confer both judicial and non-judicial power on both tribunals and courts.
However, State legislature cannot depart too far from the s 72 model of judicial independence because there is a limit on the power of State legislature to confer on courts functions 'incompatible' with the exercise of federal judicial power by virtue of s 71 of the Constitution that Parliament may confer federal judicial power on State Courts: Kable v DPP (1996) Difference between tribunals and courts

* Qualifications for membership of courts and tribunals.
*> The tribunals are more related to expertise while the courts are more general.

* Tribunals, compared with courts, have the advantages: "speed", "low cost" and "informality".

* Concerns with respect to tribunals: independence, especially relevant to adjudication of disputes between citizen and government.Two aspects:
*> Making and the review of administrative decisions;
- Persons who make the administrative decisions are executive.
*> Internal and external review of administrative decision-making.
- Senior officials who conduct an "internal" review of the decision cannot be expected to be unaffected by governmental policies or goals.
- When it comes to "external review", it is expected that the reviewer will be "independent" of the department and the government. 1

10. Merits Review

1. The Migration Act 1958 (Cth), s 12, provides that where an "alien" has been convicted in Australia of certain offences "for which he has been sentenced to imprisonment for one year or longer", the Minister may order his deportation.

2. A person, who was not a British subject, an Irish citizen or a protected person under the Nationality and Citizenship Act 1948 (Cth), was convicted of an offence to which the Migration Act , s 12, was so applicable, and was sentenced to imprisonment for 12 months, with a direction under the Criminal Law (Conditional Release of Offenders) Ordinance 1971 (NT), that he be released after three months on entering into a good behaviour bond.

3. The Minister later made an order that he be deported. The tribunal had failed to make an assessment and determination of the matter before it independently of the application of the Ministerial policy to the facts of the matter; in doing so it had not exercised the function imposed on it by the Administrative Appeals Tribunal Act 1975 , s 26 and the Schedule; and the matter must be remitted to it for rehearing.

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 The function of the Tribunal is an administrative one. It is to review the administrative decision that is under attack before it.

* The general functions conferred on the tribunal by the Act constituting it, in particular the reviewing of decisions of the Minister whether to deport persons under s 12 of the Migration Act 1958 (Cth) are administrative in character. Neither the fact that the tribunal possesses procedural powers ordinarily enjoyed by courts nor the fact that the tribunal is authorised to decide questions of law arising in proceedings before it means that, in performing these administrative functions, it is exercising judicial power.

* The exercise of its quasi-judicial functions by the tribunal constituted by a presidential member who is a member of a court created by the Commonwealth Parliament, does not give to those functions the character of judicial power in the strict sense and thus result in the exercise of the judicial power of the Commonwealth by an administrative Challenge the AAT has failed to make an independent decision. Question is what the AAT's power?
Focus the AAT having to demonstrate it has independently consider the policy, and the AAT should follow the policy. Whether the AAT has tried to work out whether the minister's decision was preferable and explain the reason they so decided. Therefore to return the case back to AAT. The Merits Review System

Composition of AAT

1 Presidential member:

* The president -- must be a federal court judge.

* A deputy president -- must be a legal practitioner of at least five years' standing.

* A member who is a judge. Members may, but need not, be lawyers

* Senior member (maybe specialist)

* Non-presidential members

Problem with Boilermaker:

* Because they exercise the power in their personal capacity.Therefore not contradict with the Boilermaker.

* Incompatibility.

* NO Wainohu problem, they do give reasoning for their decisions.

* Confidence of the integrity of the court.

* Can appeal from the Federal Court (s 44)

1 Administrative Appeals Tribunal.

2

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