What is Which Review?
Administrative review is a challenge to a government decision, it can even be a simple request for the reasons for a decision. It is a means of ensuring that government is accountable to citizens for administrative decisions, and helps to improve the quality, efficiency and effectiveness of government decision-making.
Administrative review is also means of testing the legality and merits of administrative decisions that affect citizens. Administrative review ensures that people are able to ask ‘why?’ when a decision is made that affects them. Administrative review attempts to ensure that government processes are fair, open, just and lawful – it is an important part of a democratic government.
Complaints on government decisions may be of two types. Firstly, that the decision maker made the wrong decision according to the merits of the case (a review of this type of complaint is called a review on the merits). Secondly, that there was a fault within the decision-making process because the decision maker didn’t give the person affected an opportunity to put their case, or acted for an improper purpose, or otherwise failed to make the decision according to proper lawful procedure (a review of this type of complaint is called judicial review).
Merits review is a process where the facts, law and policy aspects of the original decision are all reconsidered along with any new evidence. The reviewer looks anew at the merits of the case and decides whether the decision was the correct or preferable one, given all the circumstances surrounding the case. The outcome of a merits review is either a variation or a confirmation of the original decision, which substitutes the original decision.
A judicial review is concerned with whether a decision has been lawfully made. Judicial review is unlike a merits review, as judicial review cannot reconsider the facts or merits of the case, and cannot make a decision that exercises the power of the original decision maker afresh. A judicial review that concludes that a decision was not lawfully made can only send the decision back to the original decision maker for reconsideration. There are a number of grounds for judicial review. All of these are discussed at ‘Judicial Review’ below.