Merits review vs judicial review before VCAT
š Merits Review vs Judicial Review before VCAT
š¹ What is Merits Review?
Merits review is a process where an administrative decision is re-examined on its merits ā that is, the decision is reconsidered afresh.
The tribunal (like VCAT) can:
Confirm
Vary
Set aside the original decision
Or substitute its own decision
The focus is on whether the decision was the ācorrect or preferableā one given the facts and law.
Usually governed by specific statutes conferring power on tribunals.
š¹ What is Judicial Review?
Judicial review is a legal review of the decision-making process.
It does not re-examine the merits but asks whether the decision was made lawfully and fairly.
Grounds include:
Jurisdictional error (deciding a matter outside legal power)
Procedural unfairness
Bias
Irrationality or unreasonableness
Failure to consider relevant matters or consideration of irrelevant matters
Judicial review is typically done by courts or tribunals with limited jurisdiction to check legality only.
š¹ Before VCAT:
VCAT can perform both types of reviews depending on its jurisdiction:
In some lists (e.g., Planning, Residential Tenancies), VCAT does merits review.
In others, it may only undertake judicial review or a combination depending on statute.
āļø Key Case Laws
1. Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
Facts:
The High Court considered whether judicial review was concerned with merits or legal errors.
Principle:
Judicial review focuses on legality, not merits. The court does not re-decide the merits, but checks if the decision-maker acted within legal limits.
2. Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Facts:
The High Court distinguished merits review from judicial review in refugee status determinations.
Principle:
Merits review by tribunals involves reassessing facts and law for correctness, while judicial review is limited to errors of law or procedural fairness.
**3. Victorian Building and Construction Industry Security of Payment Act 2002 (VIC) ā ** BGC Contracting Pty Ltd v BGC Construction Pty Ltd (2013) VSC 292
Facts:
Dispute about VCATās jurisdiction in reviewing building payment decisions.
Principle:
VCATās jurisdiction to conduct merits review arises from specific legislation. Without it, VCATās role is limited to judicial review.
4. Re Minister for Immigration and Citizenship; Ex parte Lam (2003) 214 CLR 1
Facts:
Examined the distinction between merits and judicial review.
Principle:
Judicial review is concerned with the lawfulness of decision-making, not the correctness or desirability of the decision itself.
**5. Victorian Civil and Administrative Tribunal Act 1998 (Vic) ā see Nikkah v Victorian Civil and Administrative Tribunal [2003] VCAT 1010
Facts:
Dispute over whether VCAT could reconsider merits or only review legality.
Principle:
VCATās jurisdiction and powers depend on the enabling statute. The tribunal can conduct merits review only where conferred, otherwise limited to legality review.
š Summary Table
| Aspect | Merits Review | Judicial Review |
|---|---|---|
| Focus | Correctness or preferability of decision | Lawfulness and procedural fairness |
| Power | Substitute own decision | Quash or remit for reconsideration |
| Scope | Re-examine facts, law, discretion | Examine errors of law, jurisdiction, fairness |
| Where before VCAT | In some lists (Planning, Tenancies) | Limited or no jurisdiction without statute |
| Key Cases | Re Refugee Review Tribunal; Ex parte Aala | Minister for Immigration v Jia Legeng |
š§ Conclusion
Merits review allows VCAT to reconsider the facts and law and substitute its own decision where empowered.
Judicial review is a legal check on whether decisions were made within power and fairly, without reconsidering the merits.
VCATās powers depend heavily on enabling legislation, and courts have reinforced the separation of merits and judicial review.
Understanding this distinction is essential in administrative law practice and appeals before VCAT.
RELATED Blog
0 comments