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Published online by Cambridge University Press: 24 January 2025
This article examines the nature of merits review, focusing upon the Administrative Appeals Tribunal. Some forms of merits review are less than full merits review and some are hybrid merits review. It is contended that a proper appreciation of merits review may expose misperceptions concealed in some claims that judicial review resembles merits review.
An earlier version of this article was presented as a paper at the Joint Administrative Appeals Tribunal and Law Council of Australia Seminar on the Administrative Appeals Tribunal, Melbourne, 25 June 2009.
1 (2008) 235 CLR 286.
2 (1979) 2 ALD 60 ('Drake (No 1)’).
3 (1979) 2 ALD 1 ('Brian Lawlor’).
4 When enacted in 1975 the AAT Act vested certain jurisdiction immediately in the AAT, by s 26 and the Schedule to the AAT Act, which set out various classes of reviewable decisions. By 1990 s 26 and the Schedule had been repealed, the favoured approach now being to describe reviewable decisions in the other enactment which, coupled with ss 25(1)(a) and 25(4), vested jurisdiction in the AAT. Section 26 now deals with other matters.
5 Comcare v Burton (1998) 50 ALD 846, 850 [4] (Finn J) (affirmed in Lees v Burton (1999) 56 ALD 84); Australian Securities and Investments Commission v Donald (2003) 136 FCR 7, 16 [32] (Kenny J).
6 A decision which is ultra vires, and therefore a nullity, is as a matter of fact a purported decision which meets the requirement in s 25 of the AAT Act that there be a ‘decision’ made in exercise of a power conferred by another enactment.
7 Drake (No 1) also had a constitutional dimension, establishing that there was no infringement of Chapter III of the Commonwealth Constitution when a federal judge acted persona designata as a presidential member of the AAT.
8 (1979) 2 ALD 60.
9 Ibid 68.
10 In relation to the construction of the criminal deportation power.
11 (1979) 2 ALD 60, 78.
12 Ibid 80.
13 Ibid.
14 Ibid 69-70.
15 Ibid 70.
16 Ibid 70-71.
17 Ibid 70.
18 (1979) 2 ALD 634 ('Drake (No 2)’).
19 Ibid 636, 642.
20 Ibid 638. Brennan J said that Smithers J was referring to the exercise, required by the policy, of ‘balancing the protective effect of a deportation order with those other effects which an order invariably has upon the person to be deported, upon those directly affected by the proposed deportation and upon the community at large. And good government is, of course, in the best interests of Australia.'
21 Ibid 644.
22 Ibid 645.
23 Ibid.
24 Ibid 640–1.
25 Drake (No 1) (1979) 2 ALD 60, 79.
26 The formula ‘right or preferable decision’ had been used by Brennan J previously, in Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158, 162.
27 (1979) 2 ALD 1, 4.
28 Ibid 23.
29 Ibid.
30 (1980) 4 ALD 139, 143 ('Pochi’).
31 Ibid.
32 (1981) 3 ALD 88 ('Re Control Investments’).
33 Ibid 91–2.
34 Ibid 93.
35 Commonwealth Administrative Review Committee, Parliament of Australia, Commonwealth Administrative Review Committee Report (1971) ('Kerr Committee Report’).
36 Committee on Administrative Discretions, Parliament of Australia, Final Report (1973) ('Bland Committee Report’).
37 (2008) 235 CLR 286, 302 [51].
38 (2008) 235 CLR 286, 297 [32].
39 Kerr Committee, above n 37, [5].
40 Ibid [10], [18](a), (b), (c), (d), (h).
41 Ibid [18](e)-(h), although some of the ACT tribunals mentioned in (g) may have been merits review tribunals.
42 Ibid [33], [58].
43 Ibid [17].
44 Ibid [58].
45 Ibid [289].
46 Ibid [89], [163], [227].
47 Ibid [88].
48 Ibid [309].
49 Ibid [12].
50 Ibid [14](e),(f), [233].
51 Ibid [5], [311].
52 Ibid [291].
53 Ibid [5], [11], [17], [19], [20], [22], [28]. While Drake (No 1) and Drake (No 2) contain no reference to the Kerr Committee Report, Bowen CJ briefly referred to it in Brian Lawlor (1979) 2 ALD 1, 4.
54 Kerr Committee, above n 37, [12].
55 (1979) 2 ALD 60, 70.
56 (1979) 2 ALD 634, 645. See also reference to ‘the need to ensure that justice is done in particular cases’ and the question whether the application of a policy ‘tends to produce an unjust decision in the circumstances of the particular case': at 644, 645. In the context of the then deportation power, injustice in the particular case meant: ‘a disproportion between the detriment suffered by those affected by the execution of a deportation order and the benefit which might reasonably be expected to result to the community at large or to particular individuals in the community if the order were affirmed': at 645.
57 See above n 38.
58 Bland Committee, above n 38, [172](e), (j), (k), [173]. The Bland Committee Report at [172](g)(iii), [183] adopted a more cautious approach to review of government policy than did the Kerr Committee Report at [299].
59 Bland Committee, above n 38, [229](xx)(c), Appendices H and L, with consideration to be given to the classes of decision in D, E, H, I, J.
60 Ibid [175].
61 Reference made to the AAT's function as a part of the ‘continuum’ of the administrative decision-making process in Jebb v Repatriation Commission (1988) 80 ALR 329, 333 (Davies J) and Freeman v Department of Social Security (1988) 19 FCR 342, 344, 345 ('Freeman’) (Davies J) was directed to the AAT's capacity to take into account fresh evidence arising after the decision under review was made. However in some cases the nature of the decision under review and the statutory scheme indicate a temporal limitation, precluding the AAT from taking fresh evidence into account: see Freeman at 245; text below accompanying notes 99-110, 137–138.
62 The Federal Commissioner of Taxation v Munro (1926) 38 CLR 153, 203.
63 Ibid 203.
64 Ibid 201.
65 Ibid 212. Rich and Duffy JJ did not address the issue, while Knox CJ was in dissent on the issue.
66 (1930) 44 CLR 530.
67 Ibid 544.
68 Ibid 545.
69 (1935) 53 CLR 206.
70 Ibid 214. The Board's jurisdiction to review a ‘decision’ assessing additional tax included jurisdiction to impose the maximum amount of liability or to reduce that amount by exercise of the Commissioner's discretionary power of remission. The whole power was vested in the Board, including the power to remit.
71 (1953) 113 CLR 475.
72 Ibid 491.
73 Ibid 502.
74 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, 202–3 [11] ('Coal and Allied Operations’); Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124, 128-9 [2]; Siddick v WorkCover Authority of NSW [2008] NSWCA 116 [61].
75 (2003) 214 CLR 118, 124–5 [20]. The categorisation was based on that of Mason J (with whom Barwick CJ and Stephen J agreed) in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616, 620–1. See also the categorisations in Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 and Denn v Midland Brick Co Pty Ltd (1985) 157 CLR 398, 418–9.
76 See also Eastman v The Queen (2000) 203 CLR 1, 40–1 [130]; Coal and Allied Operations (2000) 203 CLR 194, 203 [12]–[13]. In Allesch v Maunz (2003) 214 CLR 118, 180–1 [22]–[23] three categories were identified (the second category in Fox v Percy was not separately identified).
77 Fox v Percy (2003) 214 CLR 118, 124–5 [20]. See also Allesch v Maunz (2000) 203 CLR 172, 180 [22]; Coal and Allied Operations (2000) 203 CLR 194, 203 [12].
78 Fox v Percy (2003) 214 CLR 118, 124–5 [20].
79 Fox v Percy (2003) 214 CLR 118, 124–5 [20]. In Allesch v Maunz (2000) 203 CLR 172, 181 [23] the Court held that an appeal to the Full Family Court was a re-hearing where the Full Court had a discretion as to whether it substituted its own decision or remitted the matter for re-hearing. The Full Court fell into error in substituting its decision without giving the parties an opportunity to adduce fresh evidence: at 181 [24], 183 [30]–[32]. In Coal and Allied Operations an appeal to the Full Bench of the Industrial Relations Commission was held to be a re-hearing: (2000) 203 CLR 194, 204 [17].
80 Fox v Percy (2003) 214 CLR 118, 124–5 [20]; Allesch v Maunz (2000) 203 CLR 172, 180 [22]–[23]; Coal and Allied Operations (2000) 203 CLR 194, 203 [13]. If the statutory provisions state that the appellate court may exercise jurisdiction whether or not there was an error below, then the jurisdiction does not fall neatly into the category of re-hearing: Allesch v Maunz (2000) 203 CLR 172180–1 [23].
81 Fox v Percy (2003) 214 CLR 118, 124–5 [20]; Allesch v Maunz (2000) 203 CLR 172, 180 [23]; Coal and Allied Operations (2000) 203 CLR 194, 203 [14].
82 Fox v Percy (2003) 214 CLR 118, 125 [22]; Re Bryant; Ex parte Guarino (2001) 178 ALR 57, 59 [10]–[11]; CSR Ltd v Della Maddalena (2006) 224 ALR 1, 7 [15]; R v Hillier (2007) 228 CLR 618, 628 [16].
83 Shi v Migration Agents Registration Authority (2008) 235 CLR 286.
84 Migration Act 1958 (Cth) s 281.
85 Migration Legislation Amendment (Migration Agents Integrity Measures) Act 2003 (Cth) sch 1, item 71, which commenced on 1 July 2004.
86 Administrative Appeals Tribunal Act 1975 (Cth) s 25(6).
87 The stay was granted pursuant to s 41(2) of the AAT Act, subject to the condition that Mr Shi was supervised by another migration agent and did not engage in any business relating to protection visas. The stay was granted on 31 July 2003 without published reasons. See Re Shi v Migration Agents Registration Authority [2005] AATA 851, [3].
88 The AAT refused Mr Shi's application for a stay of MARA's refusal (postdating the cancellation decision) to grant his previous application for renewal of his registration. The AAT held it did not have power to grant a stay because there was no status quo to preserve. Mr Shi sought judicial review of the AAT's decision. Tamberlin J held that the AAT did have power under s 41(2) of the AAT Act to grant a stay because the decision refusing a renewal operated to cause the cessation of the migration agent's deemed legal right under s 300(1) of the Migration Act to be treated as if he were registered: Shi v Migration Institute of Australia Ltd [2003] 134 FCR 326, 322 [26]. If a stay were not granted, the effectiveness of the hearing and determination of the application for review of the cancellation decision would be diminished: [2003] 134 FCR 326, 322-3 [25]–[32].
89 Findings made on alleged breaches of the Code: Re Shi v Migration Agents Registration Authority (2005) 40 AAR 397 (6 April 2005); decision, reasons for decision and orders: Re Shi v Migration Agents Registration Authority [2005] AATA 851 (2 September 2005).
90 Re Shi v Migration Agents Registration Authority (2005) 40 AAR 397; Re Shi v Migration Agents Registration Authority [2005] AATA 851, [10].
91 Re Shi v Migration Agents Registration Authority [2005] AATA 851, [24].
92 Re Shi v Migration Agents Registration Authority (2005) 40 AAR 397, [232]; Re Shi v Migration Agents Registration Authority [2005] AATA 851, [12]–[13].
93 Re Shi v Migration Agents Registration Authority [2005] AATA 851, [24].
94 Re Shi v Migration Agents Registration Authority (2006) 43 AAR 424.
95 Shi v Migration Agents Registration Authority (2007) 158 FCR 525, 533 [16], 541 [62].
96 Ibid 538 [47].
97 The High Court dealt with a second issue: whether s 304A included power, when a caution was given, to impose conditions about the agent's future conduct as a migration agent. Kirby J, with whom Crennan J concurred on this issue, and Hayne and Heydon JJ, held that the conditions imposed were within power. Kiefel J was in dissent in holding that the AAT exceeded the power under s 304A. This aspect of the Court's decision did not determine any approach to the first issue.
98 Shi v Migration Agents Registration Authority (2008) 235 CLR 286, 298 [35], 314 [98], 315 [100], 319 [117], 324–5 [134], 327 [140], [141].
99 Ibid 300 [43] (Kirby J) (referring to the ‘precise nature and incidents of the decision that is the subject of the review’), 315 [99] (Hayne and Heydon JJ), 324 [132], [133] (Kiefel J) (referring to the need to identify with some precision the decision under review and the statutory question it answers, as this ‘marks the boundaries of the review’).
100 Ibid 295 [25], [26] (Kirby J), 315 [99] (Hayne and Heydon JJ).
101 Ibid 301–2 [47]–[48] (KirbyJ).
102 Ibid 301 [46].
103 Ibid 295-6 [27]–[28] (Kirby J), holding that a dictum of McHugh J in Strange-Muir v Corrective Services Commission of New South Wales (1986) 5 NSWLR 234, 251 ('Strange Muir’) that there is such a presumption of law, was of uncertain status. While Kirby J did not finally resolve the issue of its status, he noted that it was not embraced by other members of the New South Wales Court of Appeal in Strange-Muir, and that resort to presumptions presents dangers for legal reasoning.
104 Ibid 325 [135]. Kiefel J rejected the contention that the presumption of law referred to in Strange-Muir operated. Such a presumption must, as McHugh J held, give way to contrary statutory indications.
105 Once MARA conceded in argument that the AAT was not limited to the record that was before MARA, that is the T documents lodged pursuant to s 37 of the AAT Act, it had little chance of succeeding in the argument that the AAT could only consider the circumstances as they appeared from that record, as those circumstances existed at the time of the decision under review: Shi (2008) 235 CLR 286, 314–5 [98]–[99].
106 Shi v Migration Agents Registration Authority (2008) 235 CLR 286, 315–6 [101] (Hayne and Heydon JJ), 301–2 [47]–[50] (Kirby J). Kirby J observed that the matters which s 303 required to be taken into account were expressed in the present tense and included circumstances which could change: (2008) 235 CLR 286, 301–2 [48]–[49].
107 Ibid 300 [42], referring to Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 45.
108 Shi v Migration Agents Registration Authority (2008) 235 CLR 286, 319 [117].
109 Ibid 329 [146]. Further, only the breaches of the Code identified by MARA were before the AAT in its review. If there were other breaches arising from the conduct, even confining attention to the conduct investigated by MARA, for the purposes of its review the AAT was limited to the breaches identified by MARA: (2008) 235 CLR 286, 329 [147].
110 Ibid 330 [149]. Kiefel J in any event dissented by reason of her conclusion that the AAT fell into legal error in exercising the power to impose conditions which exceeded the power to impose a condition ‘for the lifting of a caution’ within s 304A: at 331–2 [155].
111 Ibid 314–5 [98].
112 (1953) 113 CLR 475, 502.
113 Shi (2008) 235 CLR 286, 315 [100].
114 Ibid 298 [35]–[36].
115 (1981) 3 ALD 88, 92–3.
116 Shi v Migration Agents Registration Authority (2008) 235 CLR 286, 298 [35].
117 Ibid 307 [72].
118 Ibid 324–5 [134].
119 Ibid 326 [137].
120 Ibid 326 [137].
121 Ibid 326 [137].
122 Ibid 327 [140].
123 Ibid 327 [140]. See also Re de Brett Investments Pty Ltd and Australian Fisheries Management Authority and 4 Seas Pty Ltd (party joined) (2004) 82 ALD 163, 194 [121] where the AAT said that where more than one decision would be correct the AAT's function is to decide which is preferable. In the case of the Administrative Decisions Tribunal in New South Wales ('ADT’), s 63 (1) of the Administrative Decisions Tribunal Act 1997 (NSW) ('ADT Act’) confers power in determining an application for review, to decide what ‘the correct and preferable decision is having regard to the material then before it including (i) any relevant factual material; (ii) any applicable written or unwritten law.’ Section 63(2) provides that the ADT may exercise ‘all the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.’ The remedial powers of the ADT under s 63(3) are the same as those of the AAT under s 43(1)(c) of the AAT Act. In Woodward v Minister for Fisheries [2000] NSWADT 143, [47], Smith JM observed that the change of language from ‘correct or preferable’ to ‘correct and preferable’ (emphasis added) in s 63(1) of the ADT Act was ‘mysterious but in my opinion nothing turns on it’ since both formulae required the merits review tribunal to reach a decision which is correct in its conclusions of fact and law and also preferable on its merits. In YG v Minister for Community Services [2002] NSWCA 247, [25], Hodgson JA (with whom Foster and Brownie JJA concurred) held that the use of the word ‘is’ after ‘correct and preferable', rather than the word ‘was', indicated that the ADT was to reach the correct and preferable decision at the time that the ADT made its own determination. See also the State Administrative Tribunal Act 2004 (WA) s 27(2) and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20(1) which also describe the powers of the relevant tribunal in its merits review jurisdiction as being to determine the ‘correct and preferable’ decision.
124 Shi v Migration Agents Registration Authority (2008) 235 CLR 286, 327 [141].
125 Ibid 327 [140].
126 Ibid 327–8 [142].
127 Australian Securities and Investments Commission v Donald (2003) 136 FCR 7; Re Rayson and Repatriation Commission (2008) 109 ALD 137 161 [87].
128 Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167, 175–6 (Brennan J); Szajntop v Gerber (1992) 108 ALR 215, 220 (Hill J); Powell v Department of Immigration and Multicultural Affairs (1998) 53 ALD 228, 229 (French J); Shi v Migration Agents Registration Authority (2008) 235 CLR 286, 315 [100] (Hayne and Heydon JJ).
129 This is consistent with the approach taken to AAT Act s 43(1)(a): see authorities cited n 128.
130 Re Rayson and Repatriation Commission (2008) 109 ALD 137, 162 [92]; Shi v Migration Agents Registration Authority (2008) 235 CLR 286, 329 [147] (Kiefel J).
131 Re Kelly and Australian Postal Commission (1983) 5 ALN N49; Re Martin and Commonwealth of Australia (1983) 5 ALD 277, 284.
132 Administrative Appeals Tribunal Amendment Act 2005 (Cth). See Re Phillips and Inspector-General in Bankruptcy (2011) 127 ALD 113, 133–4 [49]; Re Sleep and Repatriation Commission (2011) 123 ALD 633 [22]; Re Kowalski and Repatriation Commission [2011] AATA 634, [149].
133 Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186, 195 (Bowen CJ), 199 (Fox J).
134 Repatriation Commission v Hughes (1991) 23 ALD 270, 275–6; Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483, 488–9; Re Duncan and Companies Auditors and Liquidators Disciplinary Board (2009) 207 ALD 167, 173–4 [25]–[29].
135 Repatriation Commission v Warren (2008) 167 FCR 511, 529 [78].
136 Kuswardana v Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186, 193 (Bowen CJ), 200 (Fox J), 204 (Deane J); Re Martin and Commonwealth of Australia (1983) 5 ALD 277, 285; Re Lombardo and the Commonwealth (1985) 3 AAR 537; Tuite v Administrative Appeals Tribunal (1993) 40 FCR 483, 488; VTAO v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 81 ALD 332, 350 [53]; Comcare v Fiedler (2001) 115 FCR 328, 337–8 [36]–[39]; Peacock v Repatriation Commission (2007) 161 FCR 256, 261–2 [23]; Re JCZC and Commissioner of Taxation [2012] AATA 348 [14]–[16]. Further, if the AAT does not have jurisdiction, no concession by a party can cure the defect: Re Nicholls and Secretary, Department of Primary Industry (1988) 22 ALD 596, 602; Re Pek and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2011) 126 ALD 585, 586 [6].
137 The Court did not descend into detailed discussion of cases where statutory provisions have been held to impose such a limitation. Kirby J referred to Jebb v Repatriation Commission (1988) 80 ALR 329: Shi (2008) 235 CLR 286 [45]. Kiefel J referred to Freeman v Secretary, Department of Social Security (1988) 19 FCR 342: Shi (2008) 235 CLR 286 [144]–[145]. In Jebb in review of a refusal of a pension, the AAT could take into account fresh evidence, while in Freeman, in review of a cancellation of a pension, the AAT was temporally limited to the material that was available to the decision-maker.
138 Hospital Benefit Fund v Minister for Health, Housing and Community Services (1992) 39 FCR 225, 231–2; Re McWilliam and Civil Aviation Safety Authority (2008) 105 ALD 407; Re Friendly Society Medical Association Ltd and Australian Community Pharmacy Authority (2008) 106 ALD 635 [36]; Skarzynski and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 1104 [35].
139 Therapeutic Goods Act 1989 (Cth) s 60A. See Wyeth Australia Pty Ltd v Minister for Health and Aged Care (2000) 61 ALD 372 [15]; Ego Pharmaceuticals Pty Ltd v Minister for Health and Ageing [2009] AATA 729 [5]–[6].
140 Lands Acquisition Act 1989 (Cth) ss 22(5), 31(3); Leppington Pastoral Co Pty Ltd v Department of Administrative Services (1990) 23 FCR 148.
141 Lands Acquisition Act 1989 (Cth) ss 31(1), (2); AAT Act ss 36(4), 36B(5), 39B(6).
142 For example, the jurisdiction to review criminal deportation decisions: formerly Migration Act ss 12, 13; AAT Act sch 1 pt XXII cl 22(3); Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158, 161. For the later provision, see Migration Act s 66E; Minister for Immigration and Ethnic Affairs v Pochi (1981) 149 CLR 139, 142–3. In 1992 the AAT was vested with all the remedial powers under s 43(1) in review of criminal deportation decisions: Migration (Offences and Undesirable Persons) Amendment Act 1992 (Cth).
143 Freedom of Information Act 1982 (Cth) s 58(5) (as the Act stood prior to 7 October 2009).
144 Freedom of Information Act 1982 (Cth) ss 33, 33A, 34, 35, 36 (as the Act stood prior to 7 October 2009 when the Freedom of Information (Removal of Conclusive Certificates and Other Measures) Act 2009 (Cth) came into force).
145 McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423, 468 [131] (Callinan and Heydon JJ).
146 In this Division, the AAT has jurisdiction conferred on it by the Australian Security Intelligence Organisation Act 1979 (Cth) s 54 and by the Archives Act 1983 (Cth) to review decisions of Australian Archives in respect of access to records of the Australian Security Intelligence Organisation: AAT Act s 19(6).
147 See authorities cited in n 140.
148 Competition and Consumer Act 2010 (Cth) ss 101, 101A.
149 Competition and Consumer Act 2010 (Cth) s 102(1).
150 Competition and Consumer Act 2010 (Cth) s 102(2).
151 Trade Practices Act 1974 (Cth) ss 101(2) ('a review is a re-hearing of the matter’), 102(1) (power to affirm, to set aside and for the purposes of the review to perform all the functions and exercise all the powers of the ACCC) (now repealed).
152 Re Herald and Weekly Times Ltd (On behalf of the members of the Media Council of Australia) (1978) 17 ALR 281, 295, approved by Gummow and Hayne JJ in East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission (2007) 233 CLR 229, 247 [69]. See also Re Queensland Co-operative Milling Association; Re Defiance Holdings Ltd (1976) 25 FLR 169, 177.
153 Re Herald and Weekly Times Ltd on behalf of the members of the Media Council of Australia (1978) 17 ALR 281, 295–6.
154 National Gas (Queensland) Act 2008 (Qld). For the position in Western Australia, where the regulator is the Energy Regulation Authority of Western Australia, see the National Gas Access (WA) Act 2009 (WA).
155 NGL s 245(1).
156 The Gas Pipeline Access Law ('Gas Law’) consists of schs 1 and 2 to the Gas Pipelines Access (South Australia) Act 1997 (SA) (incorporated into equivalent legislation in NSW and ACT). Schedule 2 sets out the National Third Party Access Code for Natural Gas Pipeline Systems (“the Gas Code“). Schedule 1 ‘Third Party Access to Natural Gas Pipelines', establishes a system of administrative review of decisions made under the Gas Code.
157 East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission (2007) 233 CLR 229, 249 [77] (Gummow and Hayne JJ) (with whom Gleeson CJ, Heydon and Crennan JJ agreed, 234 [13]), referring to Re Herald and Weekly Times Ltd on behalf of the members of the Media Council of Australia (1978) 17 ALR 281.
158 The classes of decision are described in s 39(1) of the Gas Law.
159 Gas Law s 39(2)(a).
160 Gas Law s 39(2)(b). This provision is in the same terms as s 258(2) of the NGL. See Application by DBNGP (WA) Transmission Pty Ltd (No 3) [2012] ACompT 14 [302]–[308].
161 Gas Law s 39(5). This provision is in similar terms to s 261 of the NGL. However under the NGL s 261(3), the ACT may allow new information to be lodged if the new information would assist it and it was not unreasonably withheld from the AER when it was making its decision. See Application by Envestra Ltd (No 2) [2012] A CompT 4 at [56].
162 Gas Law s 39(6), by which s 38 (save for ss 38 (1), (13)) applied to an application under s 39.
163 Gas Law s 39(6).
164 (2007) 233 CLR 229.
165 (1936) 55 CLR 499, 505.
166 East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission (2007) 233 CLR 229, 250 [79].
167 Ibid 250 [80].
168 (1949) 78 CLR 353, 360 ('Avon Downs’);; See East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission (2007) 233 CLR 229, 250 [80].
169 East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission (2007) 233 CLR 229, 255 [97]; See also Application by Envestra Ltd (No 2) [2012] A CompT 4, [47].
170 Australian Competition and Consumer Commission v Australian Competition Tribunal (2006) 152 FCR 33, 73-4 [171] – [172]; See also Application by Envestra Ltd (No 2) [2012] A CompT 4, [32].
171 Australian Competition and Consumer Commission v Australian Competition Tribunal (2006) 152 FCR 33, 75 [176]; See also Application by Envestra Ltd (No 2) [2012] A CompT 4, [46]; Application by DBNGP (WA) Transmission Pty Ltd (No 3) [2012] ACompT 14, [325]–[326].
172 Cf an appeal to a presidential member of the Workers Compensation Commission under s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ('WIMWC Act’), where identification of error is not a precondition to the exercise of full merits review jurisdiction: Sapina v Coles Myer Ltd [2009] NSWCA 71, [55], [57], [66], [69]; Workers Compensation Nominal Insurer v Othmani [2012] NSWCA 45, [48]–[50], [54], [65], [68] (Bathurst CJ) with whom McColl JA agreed (Handley JA dissenting).
173 The function of the Appeal Panel of the Workers Compensation Commission ‘by way of review of the original medical assessment’ under the WIMWC Act s 328(2) may be merits review or hybrid merits review. – Siddick v WorkCover Authority of NSW [2008] NSWCA 116 , [95]–[104] McColl JA (with whom Mason P agreed, with Giles JA giving similar reasons).
174 See Application by ElectraNet Pty Ltd (No 3) [2008] A CompT 3, [64]–[69]; Application by Energy Australia [2009] ACompT 8, [62]–[71], [316].
175 National Electricity Law s 71R. However the Act may allow a party to lodge new information that would assist it on any aspect of the determination to be made and that was not unreasonably withheld from the AER when it was making the reviewable regulatory decision: s 71R(3). – See Application by Energy Australia [2009] ACompT 8, [316(e)].
176 National Electricity Law s 71R(6).
177 Application by ElectraNet Pty Ltd (No 3) [2008] A CompT 3, [73].
178 Ibid [316(b)].
179 (2012) 246 CLR 379 ('The Pilbara’).
180 Ibid 402-403 [50]-[51], 404 [56] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), at 432 [140] (Heydon J).
181 Ibid 405-406 [59]–[60] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), referring to Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616, 622.
182 Trade Practices Act s 44K(6). By contrast, in review under s 101(2) of the Trade Practices Act of determinations in relation to authorisations, the procedural powers applied: at [56] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), at [141] (Heydon J).
183 The Pilbara (2012) 246 CLR 379, 404 [56] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
184 Ibid 434-435 [145], referring to the AAT Act ss 40(1),(1A).
185 Ibid 402 [49] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), at [138] (Heydon J).
186 Ibid 405-406 [59]-[60]..
187 (1990) 170 CLR 321, 341.
188 Nor is there any presumption that the decision under review is correct: Collins v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 198, 202.
189 Brian Lawlor (1979) 2 ALD 1, 23 (Smithers J); Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344, 353 [28]; CfCane, Peter, ‘Merits Review and Judicial Review - The AAT as Trojan Horse’ (2000) 28 Federal Law Review 213, 228.CrossRefGoogle Scholar
190 Twist v Randwick Municipal Council (1976) 136 CLR 106, 116; Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344, 354 [32].
191 (1979) 2 ALD 1, 5-7.
192 Forge v Australian Securities and Investments Commission (12006) 228 CLR 45; Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 566 [55], 581 [100].
193 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, 261.
194 Eastman v The Queen (2000) 203 CLR 1, 40–1 [130].
195 Tan v National Australia Bank Ltd [2008] NSWCA 198, [11]. See discussion by Allsop P and Hoeben JA of the case-law on ‘review’ and ‘appeal’ in Sapina v Coles Myer Ltd [2009] NSWCA 71, [17]–[58]; See also Workers Compensation Nominal Insurer v Othmani [2012] NSWCA 45, [37].
196 Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue (2011) 245 CLR 446, 450.
197 Class 4 judicial review jurisdiction (Land and Environmental Court Act 1979 (NSW) ('L&E Court Act’) s 20(1)(c),(2)(a)-(c),(3)). Class 1 ‘appeals’ jurisdiction (L&E Court Act s 17) where the Court has ‘all the functions and discretions which the [decision-maker] had in respect of the matter the subject of the appeal’ and its decision is deemed to be the final decision of that decision-maker: - L&E Court Act s 39(2),(5); See also Classes 2 and 3: L&E Court Act ss 18, 19, 39(2),(5).
198 Taxation Administration Act 1996 (NSW) ss 96-7.
199 Administrative Decisions Tribunal Act 1997 (NSW) s 63(1); Taxation Administration Act 1996 (NSW) s 101(2).
200 (2011) 245 CLR 446.
201 Ibid 453–4 [17]–[20]. See also Chief Commissioner of State Revenue v Centro (CPL) Ltd (2011) 81 NSWLR 462, 470 [36]–[38], 494 [168], 496 [177]; See also Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124 140 [47]–[49].
202 Supreme Court Act 1970 (NSW) ss 19(2), 75A; Taxation Administration Act 1996 (NSW) s 97(4); See Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390, 399–400 [27].
203 The criterion identified by Dixon J in Avon Downs applies where the decision presents ‘an inscrutable face’ so that it is necessary to infer that the decision-maker has taken into account some extraneous reason. The statutory context in Avon Downs limited the taxpayer's appeal to the grounds stated in his objection, and was quite different from the avenue of full merits review in the Taxation Board of Review.Where the decision-maker has given a statement of reasons, the principle in Avon Downs does not apply. – See Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, 623 [34], 639 [104]–[105] ('SZMDS’); Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue (2011) 245 CLR 446, 454 [19].
204 Attorney-General (NSW) v Quin (1990) 170 CLR 1, 35–6; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40–1; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 646 [117] (Gummow J); SZMDS (2010) 240 CLR 611, 621–2 [27]–[28] (Gummow ACJ and Kiefel J), 632 [78], 634–5 [85]–[86] (Heydon J), 636 [96], 638 [102]–[103], 643 [119], 646 [124], 649 [129] (Crennan and Bell JJ).
205 Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223, 233.
206 Cf Cane, above n 191, 220–1.
207 Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 574 [72].
208 Craig v South Australia (1995) 184 CLR 163, 177; Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 574 [72].
209 A jurisdictional fact is a precondition or criterion which may consist of various elements some of which may not be factual matters. - See R v Blakeley Ex parte Association of Architects, Engineers, Surveyors & Draughtsmen of Australia (1950) 82 CLR 54, 90 (Fullagar J); Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 651 [130] (Gummow J); Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144, 195 [111].
210 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165, 1175 [54]; SZMDS (2010) 240 CLR 611, 643–4 [119].
211 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165, 1176 [59].
212 As per Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, 151 [38], if it has only been established in an appeal that the statutory scheme involves a jurisdictional fact, the appellate court will remit the matter to the trial court where the judicial review proceedings were commenced, to determine the jurisdictional fact, as occurred in Enfield.
213 See B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481, 507–8 [131]; Osland v Secretary, Department of Justice (No 2) (2010) 241 CLR 320, 332 [18]; Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390, 418 [89]. In an appeal from the AAT to the Federal Court on a question of law, since 2005 the Court has had a limited power to make factual findings and for that purpose to receive further evidence. – See AAT Act s 44(7),(8); Kowalski v Repatriation Commission [2011] FCAFC 43, [28]–[30].
214 Cf Cane, above n 191, 228, 242, 243, 244.
215 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165, 1167 [4]; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, 998 [17]–[38]; SZMDS (2010) 240 CLR 611.
216 SZMDS (2010) 240 CLR 611, 621–2 [27]–[28] (Gummow ACJ and Kiefel J) (in dissent, being in agreement with the principle stated by Crennan and Bell JJ, but contra as to its application), 632 [78], 634–5 [85]–[86] (Heydon J), 636 [96], 638 [102]–[103], 643 [119], 646 [124], 649 [129] (Crennan and Bell JJ).
217 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165, 1169–70 [20], 1172 [37], 1175 [52], [54]; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992, 998 [37]–[38].
218 Migration Act 1958 (Cth) s 65(1)(a) and (b).
219 R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407, 432; Foley v Padley (1984) 154 CLR 349, 370 (Brennan J); Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 650–57 [127]–[147]; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, 150 [34].
220 (2010) 240 CLR 611, 636 [94], [96], 648 [130] (Crennan and Bell JJ).
221 Ibid 616 [5]–[7], 618 [15], 624 [38], 625 [42] (Gummow ACJ and Kiefel J), 643–4 [119] 647 [129] (Crennan and Bell JJ).
222 Cf Cane, above n 191, 225, 228, 231, 232, 240.
223 Ibid 225.