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Merits Review and Judicial Review—The AAT as Trojan Horse

Published online by Cambridge University Press:  24 January 2025

Peter Cane
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Extract

This paper examines the relationship between so-called “merits review” of administrative decision-making, and “judicial review” of administrative action as that term is used in the title of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act), for instance. In particular, it assesses and, in some respects, challenges the widely held view that there is a qualitative difference between merits review and judicial review. The main thrust of my argument will be that the differences between judicial review and merits review are not as stark as they are often portrayed. More provocatively, I will suggest that merits review can plausibly be described as judicial review in disguise.

Section I considers the constitutional underpinnings of merits review, and concludes that from a functional point of view, the exclusion of merits review from the judicial power of the Commonwealth is hard to justify. Section II examines various suggested distinctions between judicial review and merits review. Its main conclusion is that merits review is characterised by the power to exercise afresh the decisionmaking power invested in the original decision-maker.

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Article
Information
Federal Law Review , Volume 28 , Issue 2 , June 2000 , pp. 213 - 244
Copyright
Copyright © 2000 The Australian National University

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Footnotes

*

Thanks to Peter Bailey, Susan Kneebone, Christos Mantziaris and Leslie Zines for helpful advice and comments.

References

1 Report of the Commonwealth Administrative Review Committee (Chairman: The Hon Mr Justice JG Kerr) (1971) (hereafter Kerr Report). Reprinted in Creyke, R and McMillan, J (eds), The Making of Commonwealth Administrative Law (1996)Google Scholar.

2 See, eg, Kerr Report, para 97.

3 Kerr Report, paras 199-203.

4 “Following the New deal, the project of administrative law shifted from maintaining structural integrity in a system of separated powers to controlling the exercise of discretion broadly delegated to multifunctional administrative agencies”: Diver, CS, “Sound Governance and Sound Law” (1991) 89 Mich LR 1436 at 1437CrossRefGoogle Scholar. For a very readable history see Shapiro, M, who Guards the Guardians? Judicial Control of Administration (1988)Google Scholar.

5 [1964] AC 40.

6 [1969] 2 AC 147.

7 Kerr Report, para 249.

8 Committee on Administrative Discretions (Chairman: Sir Henry Bland) (1973) (hereafter Bland Report). Reprinted in Creyke, R and McMillan, J (eds), The Making of Commonwealth Administrative Law (1996)Google Scholar.

9 The Administrative Review Council has recommended that less emphasis be put on legal qualifications as a criterion for membership of merits-review tribunals in return for greater transparency in a skills-based selection process: Better Decisions: Review of Commonwealth Merits Review Tribunals (Report No 39, 1995) (Better Decisions), ch 4.

10 In Drake v Minister for Immigration and Ethnic Affairs (No 1) (1979) 24 ALR 577.

11 “The Kerr vision of a system of administrative review... demonstrated an attachment to the judicial mode of thinking11: Pearce, D, “The Fading of the Vision Splendid? Administrative Law: Retrospect and Prospect” (1989) 53 Canb Bull Pub Admin 15 at 18Google Scholar.

12 Neither the Kerr Committee nor the Bland Committee used this term to describe the body they proposed.

13 With the possible exception of dealing with certain legal issues (see section IIl.1(1) below. For discussion see Hall, A, “Judicial Power, the Duality of Functions and the Administrative Appeals Tribunal” (1994) 22 FL Rev 13 at 41-45Google Scholar; Campbell, E, “The Choice Between Judicial and Administrative Tribunals and Separation of Powers” (1981) 12 F L Rev 24 at 46-48Google Scholar.

14 Kerr Report, para 249; Bland Report, para 180.

15 Like inferior courts, the AAT is also amenable to judicial review.

16 And this seems to have been the Government's intention: H Reps Deb 1975, Vol 93, 1187.

17 Kerr Report, para 228 and recommendation16.

18 Ibid, paras 247, 293. The requirement that judges of Chapter III courts be lawyers is statutory, not constitutional: eg, Federal Court of Australia Act 1976, s 6(2).

19 Kerr Report, para 68. See also para 227.

20 Ibid, para 66.

21 Ibid (emphasis added). See also Attorney-General of the Commonwealth v Breckler (1999) 163 ALR 576 at [83] per J, Kirby; Re Winthrop and Smith and Minister for Immigration and Ethnic Affairs (1980) 2Google Scholar ALD 873 at 876-877 per Davies J; Zines, L, The High Court and the Constitution (4th ed 1997) at 192-196Google Scholar.

22 See generally Baldwin, R, Rules and Government (1995)CrossRefGoogle Scholar.

23 Lane, PH, Lane's Commentary on the Australian Constitution (2nd ed 1997) at 507-508Google Scholar.

24 See section IV.l.iii below.

25 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 258 per Mason CJ, Brennan and Toohey JJ; Attorney-General of the Commonwealth v Breckler (1999) 163 ALR 576 at [40] per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ (adding suits to enforce the terms of a trust to the list of exclusively judicial proceedings).

26 But see Mitchell, AD and Voon, T, “Defence of the Indefensible? Reassessing the Constitutional Validity of Military Service Tribunals in Australia” (1999) 27 FL Rev 499Google Scholar. From an historical perspective, the inclusion of criminal trials in the list is odd because in England the vast majority of criminal trials are still handled by lay magistrates who (unlike judges of Chapter III courts) are not appointed by the head of state, do not enjoy security of tenure, and are unpaid. However, the Scottish High Court of Justiciary has recently held that the Scottish system of appointing untenured judges to hear criminal cases is in breach of the European Convention on Human Rights: Starrs v Procurator Fiscal (Linlithgow) (11 Nov, 1999). The decision has serious implications for the English criminal justice system. For a brief account of the transition from a lay to a legal magistracy in New South Wales see Briese, CR, “Future Directions in Local Courts of New South Wales” (1987) 10 NSWLJ 127 at 127-131Google Scholar. For the early history see Neal, D, The Rule of Law in a Penal Colony: Law and Power in Early New South Wales (1991) ch 5Google Scholar. See also Re Governor, Goulburn Correctional Centre, Goulburn, ex parte Eastman (1999) 165 ALR 171 at 174.

27 Attorney-General of the Commonwealth v Breckler (1999) 163 ALR 576 at [81] per Kirby J.

28 For a judicial exposition of such a functional approach to judicial power, see the judgment of White J (dissenting) in Northern Pipeline Co v Marathon Pipe Line Co 458 US 50 (1982). I am not arguing that independence of the judiciary is only important where one of the parties is the executive, but that it seems especially in need of protection in such cases. I therefore reject an approach (found in the judgment of Brennan J for the majority in the Northern Pipeline case, and A Hall, above n 13) to the constitutionality of Chapter II review tribunals that rests on a distinction between public and private rights. See also Attorney-General of the Commonwealth v Breckler (1999) 163 ALR 576 at [84] per Kirby J.

29 The obvious objection is that merits review by courts would imperil separation of powers in a different way, by allowing courts to encroach too far into the decision-making domain of the executive. But this is a problem for any form of merits review external to and independent of the executive, including the AAT (see section IV.1 below). A way around the difficulty would be to adopt a principle of justiciability, elaborated in terms of “political questions”, as a constraint on external review of administrative decision-making. However, in my view (unlike that of the author of Note, (1982) % Harv LR 257-268) justiciability would not be suitable as the basic criterion of judicial power because it would unduly restrain the creation of non-judicial adjudicative bodies. I do not suggest that separation of powers concerns would require that Chapter III courts exercise original merits-review jurisdiction. Second-tier judicial involvement could suffice: Crowell v Benson 285 US 22 (1932) and Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245. For further discussion see Fallon, R H Jr, “Of Legislative Courts, Administrative Agencies and Article III” (1988) 101 Harv LR 915CrossRefGoogle Scholar; Topperwien, B, “Separation of Powers and the Status of Administrative Review” (1999) 20 AIAL Forum 32 at 37-38Google Scholar.

30 “We were mindful that judicial review might result in over-emphasis on form, a tendency which was clearly discernible in the mesh of technicalities which surrounded the remedies by way of prerogative writ”: Sir Mason, Anthony, “Administrative Law-Form Versus Substance” (1996) 79 Canb Bull Pub Admin 15Google Scholar. For recent discussion of more court-based systems of administrative review, see Kenny, S, “Administrative Law: Some Future Constraints and Goals” in R Creyke and J McMillan (eds), The Kerr Vision of Australian Administrative Law-At the Twenty-Five Year Mark (1998) at 105-107Google Scholar; Hamilton, S, “The Future of Public Administration: The Future of Public Law” in R Creyke and J McMillan(eds), The Kerr Vision of Australian Administrative Law-At the Twenty-Five Year Mark (1998) at 119-120Google Scholar.

31 McMillan, J, “Review of Government Policy by Administrative Tribunals” in Commonwealth Tribunals: The Ambit of Review (Law and Policy Papers No 9; Centre for Public and International Law, 1998) at 27-29Google Scholar.

32 See, eg, Better Decisions, above n 9 para 2.31.

33 Chapter II tribunals can be given the power conclusively to decide questions of fact: Administrative Review Council, Appeals from the Administrative Appeals Tribunal to the Federal Court (Report No 41, 1997) para 2.19. Although arguments can be made in favour of the proposition that the power to decide questions of law conclusively is essential to judicial power while the power to decide questions of fact conclusively is not, they are largely pragmatic: many more cases tum on issues of fact than tum on issues of law. To allow every finding of fact by the AAT to be challenged in a de novo appeal to the Federal Court would (to adapt words of Brandeis Jin Crowell v Benson 285 US 22 at 94 (1932)) “gravely hamper” the effective operation of the AAT, reduce its “prestige”, greatly increase “the number of controverted cases”, and encourage “persistence in controversy”. Indeed, the de novo fact-finding power of the AAT itself is controversial (see section IV.1.ii below).

34 Administrative Review Council Report, ibid, para 2.21.

35 (1988) 82 ALR 175 at 178-182. His Honour's doubts were raised by the fact that under s 44 of the Administrative Appeals Tribunal Act 1975, the “existence of a question of law is not ... merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself'' ( at 178). The Administrative Review Council has recommended that the power of the Federal Court in relation to appeals on points of law from the AAT should, on certain conditions, be expanded to include review of findings of fact. However, the arguments supporting the recommendation are pragmatic, not constitutional (see above n 33, paras 6.2-6.11).

36 (1999) 162 ALR 1.

37 For present purposes, it is sufficient to define “policy” as what is left after “law” and “fact” have been subtracted from the issues facing the decision-maker.

38 For a fuller discussion see Cane, P, An Introduction to Administrative Law (3rd edn 1996) ch 6Google Scholar.

39 In light of the point just made about questions of law, a similar argument can be made in relation to them as well.

40 For example Bayne, P, “The Commonwealth System of Non-Judicial Review” (1989) 58 Canb Bull Pub Admin 43 at 46Google Scholar; Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (New South Wales) (1978) 1 ALD 167 at 177 per Brennan J; Johnson v Federal Commissioner of Taxation (1986) 72 ALR 625 at 628 per Toohey J.

41 Gordon, D M, “The Observance of Law as a Condition of Jurisdiction” (1931) 47 LQR 386and 557Google Scholar.

42 Which English courts also did at one point before effectively abandoning the theory of jurisdiction.

43 See further section IV.1.iii.e below.

44 P Cane, above n 38 at 181-183; Aronson, M and Dyer, B, Judicial Review of Administrative Action (1996) at 388-391Google Scholar. For a theoretical exploration of the relationship between procedures and outcomes, see Galligan, D, Due Process and Fair Procedures (1996)CrossRefGoogle Scholar.

45 M Aronson and B Dyer, ibid at 424-428.

46 Similarly, Sir A Mason, above n 30 at 16.

47 Better Decisions, above n 9 para 2.2.

48 This distinguishes judicial review from judicial appeals. Viewed in this way, an application for a new trial is a form of judicial review.

49 For a particularly robust statement of this point see Whitmore, H, “Comment” (1981) 12 FL Rev 117 at 188Google Scholar. For an altogether more sceptical view, see M Aronson and B Dyer, above n44 at 186.

50 On the other hand, a decision may be set aside for error of law or fact even though the applicant cannot show that, if the error had not been made, a different result would have been inevitable: Xv The Commonwealth [1999] HCA 63 at [112] per Gummow and Hayne JJ.

51 ADJR Act, s 16(1)(b); Minister for Immigration and Ethnic Affairs v Conyngham (1986) 68 ALR 441.

52 The real significance of the remedial power of substitution is that it removes “the risk of the same [wrong] decision... being made again”: Kerr Report, para 20. But, by itself, it says nothing about the scope or grounds of review.

53 Administrative Appeals Tribunal Act 1975 (AAT Act), s 43(1).

54 Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 143 per Smithers J. See also Better Decisions, above n 9 paras 2.53-2.63.

55 For example, Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (New South Wales) (1978) 1 ALD 167 at 175-176 per Brennan J; Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 2) (1981) 3 ALD 88 at 92 per Davies J.

56 Drake v Minister for Immigration and Ethnic Affairs (No 1) (1979) 24 ALR 577 at 589.

57 Kirby, MD, “Administrative Review on the Merits: The Right or Preferable Decision” (1980) 6 Monash LR 171 at 180Google Scholar, 191, 192-193. For a recent careful discussion, see Better Decisions, above n 9 ch 6. But since decisions of the Tribunal have no “precedential” force, the main responsibility for improving administrative decision-making in response to Tribunal decisions inevitably lies with the executive: Better Decisions, para 2.42.

58 (1979) 2 ALD 634 at 645.

59 Harris, M C, “'There's a New Tribunal Now': Review of the Merits and the General Administrative Appeal Tribunal Model” in M Harris and V Waye (eds), Australian Studies in Law: Administrative Law (1991) at 203, 203-206Google Scholar.

60 A Hall, above n 13 at 38-48; E Campbell, above n 13 at 43-48.

61 For example, MD Kirby, above n 57 at 190.

62 The dicta are discussed by Curtis, L, “Crossing the Frontier Between Law and Administration” (1989) 58 Canb Bull Pub Admin 55 at 62Google Scholar.

63 Similarly: Hall, AN, “Administrative Review Before the Administrative Appeals Tribunal: A Fresh Approach to Dispute Resolution?” (1981) 12 FL Rev 71 at 78Google Scholar; S Hamilton, above n 30 at 118-119: the “in the shoes” review standard “contains a fallacy which has polluted the debate and led to much misunderstanding and bad blood”.

64 (1979) 2 ALD 634.

65 Kerr Report, para 293.

66 Ibid, para 320.

67 See Brennan, G, “The Future of Public Law-The Australian Administrative Appeals Tribunal” (1979) Otago LR 286 at 297Google Scholar who observed that the AAT is “part of the judicial arm of government”.

68 (1995) 184 CLR 163.

69 Ibid at 178-179.

70 For further discussion of these issues see A Hall, above n 13 at 38-48.

71 On the nature of these opinions see Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 at 154-155 per Deane J.

72 See below nn 90 and 102.

73 (1979) 24 ALR 577.

74 Better Decisions, above n 9 para 2.5, n 31. The Council thinks that “or” should be read conjunctively, not disjunctively.

75 Re Brian Lawlor Pty Ltd and Collector of Customs (New South Wales) (1978) 1 ALD 167.

76 (1990) 170 CLR 321.

77 Ibid at 340-341.

78 His Honour also held (ibid at 343) that findings of fact and inferences from findings of fact are “generally not capable of review [under s 6 of the ADJR Act] as “conduct” unless what is alleged is some breach of procedural requirements in the course of the conduct involved in reaching the relevant conclusion, although it is possible that they may give rise to subsequent conduct which is reviewable”. Common law judicial review is not limited to “decisions” and “conduct”; but the distinction between jurisdictional and non-jurisdictional facts performs the same exclusionary function as the concepts of “decision” and “conduct” perform under the ADJR Act.

79 (1995) 184 CLR 163.

80 Ibid at 341.

81 Ibid at 355-360.

82 But note that in Mason CJ's view, these “amount to the same thing”: ibid at 360.

83 This makes it difficult to find an area of operation for s 5(1)(h): ibid at 358.

84 English courts are generally more willing than Australian courts to review administrative fact-finding: P Cane, above n 38 at 128-132. See also Mason CJ in Bond (1990) 170 CLR 321 at 356-357. Deane J seems to have approved the English approach: ibid at 367-368.

85 A word needs to be said here about the “jurisdictional fact doctrine”. It is said that the doctrine blurs the distinction between merits review and judicial review by allowing the court to review de nova certain administrative findings of fact: M Aronson and B Dyer, n 44 above at 263-271; McMillan, J, “Developments under the ADJR Act: The Grounds of Review” (1991) 20 FL Rev 50Google Scholar; “Recent Themes in Judicial Review of Federal Administrative Action” (1996) 24 FL Rev 347at 382-385. This view involves a confusion of exclusionary deference with standard-of-review deference. While the jurisdictional fact doctrine allows the court to review findings of jurisdictional fact, it says nothing about the standard of review. Aronson and Dyer (above) take the view that “as a matter of strict logic” the jurisdictional fact doctrine implies the “correct or preferable” standard. However, they immediately concede that the courts have not adopted this “strictly logical” position, and have left open the possibility of showing greater deference to administrative findings of jurisdictional fact. (On this point, see the observations of J, Gummow in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162Google Scholar ALR 577 at [140-146]). At all events, the various standards of review are so abstractly formulated that they leave ample room for legitimate difference of opinion about their application to particular cases-a point I explain in more detail in section IV.l(iii)(e).

86 There is a technical problem here arising from the fact that the jurisdiction of the AAT is also limited to “decisions”. Assuming that “decision” ins 25(1) of the AAT Act has the same meaning as in the ADJR Act, the jurisdiction of the AAT to review findings of fact must be the same as that of the Federal Court under the ADJR Act. It may be possible to square the circle by saying that although the AAT, like the Federal Court, can only review findings of fact which are decisions, the non-deferential standard the AAT applies when reviewing findings of fact effectively expands the definition of “decision” in this context.

87 Concerning the admissibility of fresh evidence in judicial review proceedings, see Administrative Review Council Report, above n 33 para 6.12.

88 This may explain the AAT's approach to fact-finding: Hill, G, “The Impact of Federal Court Appeals on the AAT: A View from the Court” in J McMillan (ed), The AAT-Twenty Years Forward (1998) at 113Google Scholar.

89 Susan Kneebone says that “the fact-finding role of the AAT is what distinguishes it from a court of law”: “The Administrative Appeals Tribunal as a Fact-Finding Body” in McMillan, J (ed), Administrative Law: Does the Public Benefit? (1992) at 400Google Scholar.

90 “The question is not: was it a decision reasonably open to the administrator ... but rather: was it the decision that the review body considers should have been made? These are very different questions”: L Curtis, above n 62 at 64. See also Foley v Padley (1983) 154 CLR 349 at 370 per Brennan J; M Harris, above n 59 at 203; Better Decisions, above n 9 paras 2.17-2.18.

91 There is a minefield here. By “primary legislation” I mean Acts of Parliament. By “secondary legislation” I mean legislation made in exercise of a power belonging to parliament which has been delegated by it to another legislator. Quasi-legislation is made in exercise of executive power, not in (delegated) exercise of parliament's rule-making power.

92 For example, Ganz, G, Quasi-Legislation: Recent Developments in Secondary Legislation (1978)Google Scholar.

93 R Baldwin, above n 22 at 226-230, 248-252.

94 This seems to be the sense in which it was used in the difficult case of Leppington Pastoral Co Pty Ltd v Department of Administrative Services (1990) 94 ALR 67.

95 Kerr Report para 299.

96 Bland Report para 1.

97 Interim Report of Committee on Administrative Discretions (Chairman: Sir Henry Bland) (1973), para 97(a). The Committee optimistically expressed the view that “if decisions of Ministers are not examinable [by the Ombudsman], the problem of attempting to distinguish policy, from administrative, decisions will not arise”.

98 Bland Report para 29.

99 Ibid para 32.

100 Drake v Minister for Immigration and Ethnic Affairs (No 1) (1979) 2 ALD 60; 24 ALR 577; Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

101 AAT Act 1975, s 43(1).

102 Drake (No 1) (1979) 2 ALD 60 at 68; 24 ALR 577 at 589.

103 What this means is that quasi-legislation must not be treated as if it were made in (delegated) exercise of parliament's legislative power. Another way of putting this is to say that quasi-legislation must never be applied simply because a case falls within its terms and without considering the 11appropriateness” of applying those terms to the facts of the case. In this sense, quasi-legislation is 11provisional”. This must be distinguished from the issue of “flexibility”-that is, whether rules are detailed and precise, or broad and flexible. Broad and flexible rules leave more room for discretion in their application to individual cases than do precise and detailed rules. But this is as true of legislative as of quasilegislative rules. Of course, it is also true that the more broad and flexible a rule is, the easier it will be to take account of the facts of individual cases without the need to consider the “appropriateness” of the rule to the case at hand.

104 (1979) 2 ALD 60 at 70; 24 ALR 577 at 591.

105 The fact that his Honour was, at this time, himself a judge of the Federal Court perhaps partly explains the independence of his approach.

106 (1979) 2 ALD 634 at 645.

107 Sharpe, J M, The Administrative Appeals Tribunal and Policy Review (1986) at 163-167Google Scholar.

108 Can making a rule be a “decision"? Under the ADJR Act, rule-making in the exercise of a power to make rules delegated by Parliament has been held not to be a “decision”: Queensland Medical Laboratory v Blewett (1988) 84 ALR 615. However, this was on the basis that a decision falls within the ADJR Act only if it is “of an administrative character”, and that a rule made in delegated exercise of the legislative power of the Commonwealth is not of such a character. There is no such qualification to the definition of “decision” in the AAT Act. Furthermore, the Blewett case did not address the reviewability of quasi-legislative rules. These are not made in exercise of legislative power delegated by Parliament, but by way of structuring the exercise of executive power.

109 Re Control Investment Pty Ltd and Australian Broadcasting Tribunal (No 1) (1980) 3 ALD 74 at 86. Further to the discussion in the previous note, even if making a rule could be a reviewable decision under the AAT Act, it is perhaps unlikely that any person would have standing to challenge the making of the rule as such, independently of its application to any particular set of facts.

110 (1979) 2 ALD 634 at 639.

111 Ibid at 642.

112 In Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 at 23 Mason CJ expressed the view that for a court to give substantive, as opposed to procedural, protection to a legitimate expectation would, in some but not all cases, involve illegitimate interference with the merits of administrative decision-making “by precluding the decisionmaker from ultimately making the decision which he or she considers most appropriate in the circumstances”. This approach carries the unfortunate implication that all grounds of judicial review could involve merits review. Once it is accepted that inconsistency can itself be unjust, it must also be allowed that the demands of consistency may sometimes justify and require substantive protection for a legitimate expectation. See also Dawson J at 60.

113 Drake (No 1) (1979) 2 ALD 60 at 70; 24 ALR 577 at 590-591. Of course, “justice to the individual” is an exceedingly abstract concept which allows the AAT much freedom to assert its values against the executive. The concept of “consistency” also gives the Tribunal considerable discretion to specify those features of the case before it in respect of which consistency is required. However, in these respects, the AAT is in no different position from the courts which, in exercising judicial review jurisdiction, can give effect to their own conceptions of individual justice and consistency. See also below n 120 artd accompanying text.

114 Similarly: M Aronson and B Dyer, above n 44 at 187-188.

115 O'Brien, D, “Tribunals and Public Policy: What Decisions are Suitable for Review?” (1989) 58 Canb Bull Pub Admin 86 at 90-91Google Scholar.

116 In this context, “legislative” does not mean “having the force of primary or secondary legislation”. In other words, “legislative” includes “quasi-legislative”. I use inverted commas to mark this usage.

117 The converse is not true, however. It is a constitutional fundamental that the legislature should not adjudicate disputes about the application of its own legislation; but adjudication, in the sense of application of legislative rules to individual cases, is a core activity of the executive. Such adjudication may generate adjudicative rules. There is also no constitutional bar preventing members of the executive adjudicating disputes about the application, by other members of the executive, of legislative rules to individual cases.

118 Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139. Thus, rules made by the AAT are doubly provisional. They have the provi ionality of adjudicative rules; and unlike adjudicative rules made by courts, they do not have the force of law. See above n 102.

119 “[T]he practice of giving reasons for decisions inevitably spins out threads of policy”: (1979) 2 ALD 634 at 644.

120 Elsewhere, Brennan J made this point in terms of “the government's power to make policy” and the AAT's “discretion as to its application”: above n 67 at 297. Another way of describing the role of the AAT is in terms such as “policy refinement”: MC Harris, above n 59 at 209-212. See also J M Sharpe, above n 106 at 129, 196-198.

121 (1979) 2 ALD 634 at 643-644. See also Re Becker and Minister for Immigration and Ethnic Affairs (1977) 15 ALR 696 at 701 where his Honour distinguished policies made at the “departmental level” from those made at the “political level”. “Whether Sydney needs another major airport” is a good example of a policy question that is unsuitable for AAT adjudication: Leppington Pastoral Co Pty Ltd v Department of Administrative Services (1990) 94 ALR67.

122 L Curtis, above n 62 at 56.

123 See, eg, M Aronson and B Dyer, above n 44 at 156-161.

124 See Allars, M., “Human Rights, Ukases and Merits Review Tribunals: The Impact of Teoh's Case on the Administrative Appeals Tribunal in Australia” in M Harris and M Partington (eds), Administrative Justice in the 21st Century (1999) ch 16Google Scholar.

125 (1986) 162 CLR 24 at 39-42.

126 For example, Foley v Padley (1984) 154 CLR 349.

127 There is currently a struggle going on in the law of judicial review both in England and Australia to supplement or replace the Wednesbury-unreasonableness test with the concept of “proportionality”: M Aronson and B Dyer, above n 44 at 375-379). Some conceptions of proportionality are practically indistinguishable from preferability.

128 This is the basic insight of J Griffith's classic study of judicial ideology, The Politics of the Judiciary (5th ed 1997), first published in 1977; and of McAuslan, P, The Ideologies of Planning Law (1980)Google Scholar. The distinction between judicial review and merits review trades, to some extent, on an old-fashioned idea that judicial decision-making is value-neutral. See also Kirby, MD, “Administrative Review: Beyond the Frontier Marked 'Policy- Lawyers Keep Out” (1981) 12 FL Rev 121 at 144-145Google Scholar, 156.

129 Such as McMillan, above n 84.

130 McMillan, J, “The Role of Administrative Review Bodies-A Commentary” (1999) 58 A/PA 76 at 78Google Scholar.

131 (1984) 154 CLR 349.

132 Ibid at 370.

133 Similarly: MD Kirby, above n 127 at 134.

134 Better Decisions, above n 9 ch 4.

135 Note, however, that the AAT itself must comply with principles of procedural fairness.

136 Leon, R, “Tribunal Reform: The Government's Position” in S Kneebone (ed), Administrative Law and the Rule of Law: Still Part of the Same Package? (1999) at 355Google Scholar. “Merits review should be perceived and conducted as an administrative review process, not as a quasi-judicial process” (at 352).

137 R Creyke, “Tribunal Reform: A Commentary” in S Kneebone (ed), ibid at 361.

138 R Leon, above n 135 at 351. The government is currently attempting to deal with the fraught issue of fresh evidence: R Leon, above n 135 at 357; R Creyke, ibid at 368-369.

139 “Appeal to the Federal Court or review under the Administrative Decisions Oudicial Review) Act 1975 (Cth) will continue to be available on the same basis as it is currently”: R Leon, ibid at 356.