Administrative law › Module guides › Framework and non-judicial accountability

The idea

Administrative law holds the executive to account, and it does so through four separate mechanisms that answer four different questions. Courts test legality and ask whether a decision was made according to law. Tribunals review the merits and ask what the correct or preferable decision is. The Ombudsman investigates conduct and reports on maladministration. Freedom of information opens the file. The whole module turns on one gate, the line between legality and merits, and it is stated once and hard.

For assessment this module is where the interim memorandum lives, worth thirty per cent of the subject. The memo runs one avenue down a statutory staircase: internal reconsideration first, then the Administrative Review Tribunal. It advises a single avenue and commits, because hedging is scored as wrong advice rather than caution.

Some rules carry a small icon marking the structure the rule takes. The icon is a reading aid and nothing more. The facts of the cases and the words of the rules do the work.

Attack plan

1. Identify the reviewable decision and the affected entity (the refusal to register a supporter under s 37(1), with the individual and the person as affected entities on the s 557 table).
2. Reasons. The decision maker must give notice with reasons and tell the entity how to seek reconsideration (s 38(2)).
3. Internal reconsideration first. The entity requests reconsideration within 28 days and an uninvolved reviewer at equal or higher level remakes the decision (ss 559, 560).
4. Then the tribunal. Only the reconsideration decision goes to the Administrative Review Tribunal (s 566, with s 566(2) displacing ART Act s 17 on standing).
5. Advise ONE avenue and commit. Hedging is scored as wrong advice, not caution. Further review by judicial review sits beyond the memo. The interim assessment is 30 per cent of the subject and lives entirely here.

Cases at a glance

Case	In a line
Re Drake (No 1)	A migration deportation was reviewed by the AAT. The question was whether the decision was the correct or preferable one, not whether a discretion had been validly exercised
Re Drake (No 2)	On remittal Brennan J set the policy rule. The tribunal applies lawful government policy in the ordinary run of cases and departs only for cogent reasons
Shi	A migration agent's registration was cancelled. The tribunal decides on the material as it stands at the time of its own decision and may receive later evidence
Green v Daniels	An unemployment benefit was refused on a departmental policy inconsistent with the Act. Not a merits review case, but the authority on the lawful application of policy
Plaintiff M64/2015	A parent visa was refused. Consistency in applying a lawful policy to a broad discretion serves rationality and equal treatment
Frugtniet	The tribunal stands in the shoes of the decision maker so as to determine for itself the decision that should be made, on the same powers and constraints (at [51])
Plaintiff M174/2016	Merits review is not correction of error but a de novo consideration of the merits of the decision referred to the reviewer (at [17])
McKinnon	An FOI access decision reviewed by the Information Commissioner. Noting only, the FOI review illustration
Lawlor	The meaning of a purported decision, a decision in fact that purports to be made under an enactment whether or not validly made. Noting only

The rules

R1 · What distinguishes judicial review from merits review? arrow Judicial review tests only the legality of a decision while merits review reconsiders the decision itself, so the reviewer on the merits asks what the correct or preferable decision is rather than whether legal error occurred.

R2 · When is an avenue of merits review available? arrow There is a right to merits review only where legislation confers it; no statute, no avenue.

R3 · What is the avenue for a reviewable decision before the tribunal? staircase An affected entity for a reviewable decision must exhaust internal reconsideration before applying to the Administrative Review Tribunal for review of the reconsideration decision. Aged Care Act ss 559, 560, 566.

R4 · Which federal tribunal conducts merits review now? arrow The federal tribunal is the Administrative Review Tribunal, which replaced the AAT on 14 October 2024; the AAT must never be named as the current avenue.

R5 · What question does the tribunal ask on merits review? compass The question for the tribunal is whether the decision under review was the correct or preferable decision, not whether a discretionary power was validly exercised. Re Drake (No 1).

R6 · What is the tribunal's position relative to the original decision maker? arrow The tribunal stands in the shoes of the decision maker so as to determine for itself on the material before it the decision that should be made in exercise of the same powers subject to the same constraints. Frugtniet at [51].

R7 · How do the primary decision maker's mandatory and prohibited considerations bear on the tribunal? arrow What the primary decision maker must and must not consider binds the tribunal equally.

R8 · Is merits review the correction of error? arrow Merits review is not concerned with the correction of error on the part of the primary decision maker but is engaged in a de novo consideration of the merits of the decision referred to the reviewer. Plaintiff M174/2016 at [17].

R9 · At what time, and on what material, does the tribunal decide? arrow The tribunal decides on the material and the law as they stand at the time of its own decision, so it may receive evidence of matters arising after the decision under review unless the empowering statute confines it. Shi.

R10 · What remaking powers does the reviewer or tribunal hold? keyring On reconsideration the internal decision reviewer must affirm the decision, vary it, or set it aside and substitute a new decision, and the tribunal on review exercises the same remaking powers. Aged Care Act s 564(1).

R11 · What is the effect of a remade decision? arrow A remade decision takes effect as if it had been made under the provision that conferred the original power, so it substitutes for and displaces the decision under review. Aged Care Act s 564(6).

R12 · How does the tribunal treat lawful government policy? arrow The tribunal applies lawful government policy in the ordinary run of cases and departs from it only where there are cogent reasons to do so. Re Drake (No 2).

R13 · When do cogent reasons to depart from policy arise? keyring Cogent reasons to depart from policy arise where the policy is unlawful or where its application would work injustice in the particular circumstances of the case. Green v Daniels.

R14 · Why may a decision maker adopt a lawful policy to guide a broad discretion? compass Consistency in the application of policy serves the values of rationality and equal treatment, so a decision maker may adopt a lawful policy to guide the exercise of a broad discretion. Plaintiff M64/2015.

R15 · Is there a right to reasons for a decision? arrow There is no common law right to reasons, so a right to reasons for a decision arises only where a statute confers it. ADJR Act s 13; Administrative Law Act 1978 (Vic) s 8.

R16 · What reasons obligation applies on the interim statute? checklist Notice of a refusal to register must include the reasons and how to seek reconsideration, and the reconsideration decision must be notified with its reasons. Aged Care Act s 38(2); Aged Care Act s 564(3).

R17 · How are objects and principles provisions to be used? arrow Objects and principles provisions are aids to construction, never the operative test, so the actual operative requirements must be worked through the substantive provisions rather than by applying objects clauses to the facts.

R18 · How and when is internal reconsideration triggered? arrow An affected entity triggers internal reconsideration by requesting it within 28 days. Aged Care Act s 559.

R19 · Who conducts the internal reconsideration? arrow Internal reconsideration is conducted by an uninvolved reviewer at equal or higher level. Aged Care Act s 560(3).

R20 · How is standing determined on the interim statute? arrow On the interim statute standing is read off the s 557 table rather than the general tribunal test, and s 566(2) displaces ART Act s 17 on standing for tribunal review. Aged Care Act s 557; Aged Care Act s 566(2); ART Act s 17.

Common traps

The singular avenue. The question asks what legal avenue, not which avenues. Internal reconsideration must be exhausted before the Administrative Review Tribunal, so offering both or leading with the tribunal is wrong advice. Hedging cascades and is penalised as incorrect advice, never rewarded as caution.

The interpretive tool inversion. Objects and principles provisions such as ss 5, 23 to 26 are aids to construction, never the operative test. Students who apply them to the facts instead of working the actual registration requirements in s 37 spend their time on the wrong provisions.

Cases without statute. Shi scores only when tied to the present tense of s 37(1), which carries no temporal limit and lets the reviewer weigh matters arising after the refusal. Drake and Frugtniet must likewise be anchored to the extract's powers, or they earn nothing.

The AAT ghost. The Administrative Review Tribunal replaced the AAT on 14 October 2024. Any answer that names the AAT as the current federal tribunal has cited a body that no longer exists and dates itself out of the marks.

Practise this module

The practice bank runs this module inside invented scenarios with a Pass answer, an H1 answer and examiner's comments for every drill. Read the rules above, then attempt the bank blind and mark yourself against the model.

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