final or operative and determinative – at least in a practical sense of the issue of fact falling for consideration. Decision is substantive – A decision is substantive in nature. Conduct is not substantive – It is procedural rather than reviewing the making of the final decision. Griffith University v Tang Held: Made Under Enactment – Two criteria Decision must expressly or impliedly require or authorized by the enactment The decision itself must confer, alter or affect legal rights or obligations A decision will only be made under ‘enactment’ if both these criteria are met. If Authorized by Statute – then decision is made under enactment otherwise it is not.
Jurisdictional Error For a jurisdictional error, consideration is given to The nature of the error that is made by a decision-maker; and Whether that error negatively impacts on the decision-makers jurisdiction to decide on the matter Errors which are made by a decision-maker must Jurisdictional Errors - Negatively impact on the power/jurisdiction to decide the matter Broad Jurisdictional Errors – this is what Australia uses. Minister for Immigration v Yusuf Narrow Jurisdictional Errors – Broadly stated in Craig v SA and corresponds to ‘narrow ultra vires’ Non-jurisdictional errors – Do not negatively impact on his or her power to ultimately decide Jurisdictional Facts (JF) Essential preconditions – or ‘conditions precedent’ – which must be satisfied before a decision-maker can interpret. Timbarra Protection Coalition Inc v Ross Mining NL Is factual reference in a statute a jurisdictional fact ? Objectivity - Must exist in fact Essentiality - The legislature intends that the absence or presence of the fact will invalidate the action under the statute Did Parliament intend for the decision-maker? Existence or non-existence of fact - If parliament intended that the factual reference in the statute can only be satisfied by the actual existence (or of the fact – then the Court may inquire and determine the ‘actual existence’ or non-existence of those facts. Authoritative – The decision-maker could determine the existence or non-existence of a factual reference, then a Court in judicial review can review whether the facts used are ‘reasonable’ (Wednesbury) but cannot determine the facts. Mental state of decision-maker – Such words (i.e. ‘belief’ or ‘opinion’) conclude against a jurisdictional fact.
A Merits Review Definition – Judicial review: Involves - A Consideration of the legality of the decision and the process Does Not Involve – A consideration of the merits of the particular decision Definition – Merits Review: Consideration of the merits of a particular matter: Decision-maker – A decision-maker providing an adverse decision to an applicant based on their understanding of the law as relevant to the applicants submissions and relevant policy. Merits Review Body – A body or tribunal who can rehear a matter an remake a decision based on its understanding of the law as relevant to the applicants submissions and relevant policy. What is the purpose of a Merits Review? The affirmative arguments for a merit review include: Erroneous Considerations – The decision-maker could have based their decision on erroneous information. Discretion was inappropriate – The exercise of discretion was simply inappropriate Reconsideration – The entire matter can be remitted to an independent body to reduce the risk of the decision being incorrect which encourages First Decision-Maker – to carefully ensure that their decisions are accurate, reasonable and sound on the basis of the information before them Correct Errors – Allows a impartial and independent tribunal to approach new cases and correct wrong decisions. The negative arguments include: Inefficiencies– Infers that Governments extend the time for decisions to be made Not ‘truly’ impartial – Any reviewing body is still part of the Government and therefore part of the Executive Branch. Must balance: The right to individual justice and have a fair, reasonable and impartial Executive arm Society demands that the executive branch is efficient.
What are the Rights to have a Merits Review? Common Law Considerations There is no general law right to have an administrative decision reviewed on a merits basis. There must be express statutory power conferred on a person-tribunal to conduct such a review. The decision challenged must have been made under an enactment which allows a person-tribunal to conduct a merits review. AAT Act 1975 (Cth) Does the Act have Jurisdiction? Made in the Exercise of Power - S25(1)(a) - Allows a Statute to provide a review of decision to the AAT for an exercise of power of such an Statute. (i.e. decision executed) Applications made to it - S25(4) – Allows the Tribunal to review any decision of any application which is made too it. Limiting Review Power: Certain Types of Decisions - S25(3)(a) and (3)(b) – The statute may confer power on the AAT to review only certain types of decisions made under the Statute. Impose Conditions on Review – s25(3)(c) What is the meaning of “decision” under AAT? S3(3) of the AAT Act 1975 (Cth) Unless the contrary intention appears, a reference in this Act to a decision includes a reference to: making, suspending, revoking or refusing to make an order or determination; giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission issuing, suspending, revoking or refusing to issue a licence, authority or other instrument; imposing a condition or restriction; making a declaration, demand or requirement; retaining, or refusing to deliver up, an article; or doing or refusing to do any other act or thing Common Law Considerations Collector of Customs v Brian Lawlor Automotive Held: ‘Decision’ means, under AAT 3(3), a decision in fact so made S25 – Means purported exercise of powers conferred by the Statute.