administrative review on the merits lecture 2 spring, 2013 (2).pptx
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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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