What is a merits review?
A merits review looks at the decision of the original decision maker, and considers the decision anew, as though the decision had never been made. This means that the review considers all the same material that the original decision maker considered. For example, if the decision is about a Centrelink payment, the financial and domestic circumstances of the applicant will be considered by the reviewer, just as they were considered by the Centrelink officer.
Who hears a merits review?
This type of complaint will usually be heard by a tribunal, such as the Commonwealth Administrative Appeals Tribunal (AAT) which reviews the decisions of public officials made under federal legislation, such as a decision under the Australian Sports Drug Agency Act 1990 about a competitor’s test result, or a decision that a person is not eligible for workers compensation under the Safety Rehabilitation and Compensation Act 1988. A person has a right to bring a complaint to the AAT only if an act or regulation gives them the right; there is otherwise no general right at law to make a complaint to a tribunal.
Many Tasmanian Acts provide for merit reviews of administrative decisions to various bodies, such as to the Magistrates Court (Administrative Appeals Division) or the Resource Management and Planning Appeals Tribunal. Tasmania has no specific AAT.
Where there is a specific statutory right of appeal to a tribunal or body other than a court, the appeal body will generally be entitled to consider the whole subject matter of the administrative decision afresh. It will be able to re-examine the relevant facts and the relevant law and re-exercise any available discretion. Appellants will be able to present their case all over again with fresh evidence or different arguments if they so choose. The appeal body will have the right to substitute its own opinion and decision for that of the authority appealed against.
Merit Reviews in Tasmania
There are a number of Tribunals and bodies which have the power to carry out merit reviews of administrative decisions made by State government agencies and authorities. Some are specialist bodies, such as the Forestry Practices Stream of the Tasmanian Civil and Administrative Tribunal which hears appeals under the Forest Practices Act 1985 (Tas). The Magistrates Court (Administrative Appeals Division) is established by the Magistrates Court (Administrative Appeals Division) Act 2001 (Tas) and may determine a wide range of reviews. Although a court, it is not dissimilar to Administrative Appeals Tribunals in other jurisdictions in its jurisdiction, powers and manner of operation.
Commonwealth Merits Review
Any person who wishes to appeal against a Commonwealth government administrative action or decision should first read the Act or Regulations under which the decision was made or action taken. This will usually outline any rights of appeal given to the citizen and the grounds of any rights of appeal. There is no general rule. Some Acts give wide rights of appeal, others have only narrow grounds of appeal and some Acts give no right of appeal at all.
It was against this background that the Commonwealth decided to establish an Administrative Appeals Tribunal (AAT). The AAT was established under the Administrative Appeals Tribunal Act 1975 and is empowered to review on their merits a wide range of Commonwealth government decisions. However, there are limits and the list continually changes. All references are to the Administrative Appeals Tribunal Act unless otherwise stated.
How do I start a merits review?
You can apply for a merits review yourself, or with the help of legal advice. It is best to proceed with legal advice. Your local community legal service can help. You should make sure that you have all of the documentation and information with you that was relevant to the original decision.