LAWS50032 · Administrative Law
Merits Review and Reasons
The legal question: can this decision be re-made on its merits, by whom, and to what standard? Merits review is reconsideration by an executive body that 'steps into the shoes' of the original decision-maker and makes the 'correct or preferable decision' on the law and facts (and any lawful policy). Unlike a court on judicial review, the body can remake the decision (affirm, vary, set aside and substitute, or remit) — because it exercises executive, not judicial, power. But the right to merits review exists only where a statute provides it, and it must appear in two statutes: the enabling Act and the tribunal's establishing Act. The current bodies are the ART at Commonwealth level (the ART Act 2024 replaced the AAT, commencing 14 October 2024) and VCAT in Victoria. The chapter also covers the statutory right to reasons (there is no general common-law right): ADJR s 13, ART Act ss 268–272, Admin Law Act 1978 (Vic) s 8, VCAT Act ss 45–47. These topics sit in Part II and feed the 25% statutory-interpretation take-home.
What this chapter covers
- 01Merits review = step into the shoes; the 'correct or preferable' standard
- 02Executive, not judicial, power — the body can remake the decision
- 03The right exists only where a statute confers it — in both statutes
- 04The bodies: ART (Cth, replaced the AAT 14 Oct 2024) and VCAT (Vic)
- 05Lawful vs inflexible application of policy on review (Drake; Shi; Frugtniet)
- 06The statutory right to reasons (ADJR s 13; ART Act ss 268–272; ALA s 8; VCAT Act ss 45–47)
Worked example: is merits review available, and to what standard?
- +1Is the right conferred? Merits review exists only where a statute provides it, and it must appear in two statutes — the enabling (licensing) Act and the tribunal's establishing Act. Point to the conferring sections in both.
- +1Which body? For a Commonwealth decision the tribunal is the ART (not the AAT — the ART Act 2024 commenced 14 Oct 2024).
- +1The standard: the ART steps into the shoes and makes the correct or preferable decision on the law and facts, applying any lawful policy flexibly.
- +1Remedial powers: being an exercise of executive power, the ART can remake the decision — affirm, vary, set aside and substitute, or remit — unlike a court, which could only quash and remit.
Key terms
- Correct or preferable decision
- The standard on merits review: the body re-decides on the law and facts (and any lawful policy) to reach the decision that is correct, or where a discretion is involved, preferable. It is correctness, not mere legality.
- Step into the shoes
- The metaphor for merits review: the reviewing body stands in the position of the original decision-maker and re-decides afresh, exercising executive power, so it can remake the decision rather than merely quash it.
- ART
- The Administrative Review Tribunal, the Commonwealth merits-review body under the ART Act 2024, which replaced the AAT with effect from 14 October 2024. Using 'AAT' for a current Commonwealth decision is a currency error.
- VCAT
- The Victorian Civil and Administrative Tribunal, the State merits-review body. As with the ART, a right to review before VCAT exists only where a statute confers it.
- Statutory right to reasons
- There is no general common-law right to reasons; the right is statutory only — ADJR s 13, ART Act ss 268–272, Admin Law Act 1978 (Vic) s 8, VCAT Act ss 45–47. Identify the correct source for the jurisdiction in question.
Merits Review and Reasons FAQ
When is merits review available?
Only where a statute confers it — and the right must appear in two statutes: the enabling Act (which creates the decision) and the tribunal's establishing Act (the ART Act 2024 or the VCAT Act). If either is silent, there is no merits-review right, however unfair the decision seems; the remaining pathway is judicial review.
How is merits review different from judicial review?
Merits review is an exercise of executive power: the body steps into the shoes, applies the 'correct or preferable' standard, and can remake the decision (affirm, vary, set aside and substitute, remit). Judicial review is legality only: a court cannot remake the decision, it can only quash and remit. This is the same legality/merits line that runs through the whole subject.
Is there a right to reasons for an administrative decision?
Not at common law — the right to reasons is statutory only. The sources differ by jurisdiction: ADJR s 13 and ART Act ss 268–272 at Commonwealth level, and the Admin Law Act 1978 (Vic) s 8 and VCAT Act ss 45–47 in Victoria. Cite the provision that matches the decision in front of you.
Exam move
Lock in three things and the marks follow. First, the two-statute rule: merits review exists only where both the enabling Act and the tribunal's Act confer it. Second, the standard and powers: 'correct or preferable', step into the shoes, can remake (affirm/vary/set aside and substitute/remit) — an exercise of executive power. Third, currency: ART, not AAT, for Commonwealth decisions since 14 October 2024; VCAT in Victoria. Keep the policy line (lawful but not inflexible — Drake, Shi, Frugtniet) and the statutory reasons sources to hand, and always distinguish merits from judicial review in one clean sentence.
