It has been said the Judicial review does involve review on merits, under what conditions of Australian Law? Would you please help to explain? Thank you.
VIC Australian Law - Judicial Review and Merit Review?
- Thread starter chillie123
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Hi Chillie123,
Judicial review does not look at the merits of the case. This is due to the separation of powers. Judicial review is an administrative/executive function. the reason why judicial review cannot (or rather, should not) consider the merits of a case is to maintain certainty and finality of judgments. Further, those exercising judicial review are only asking whether the judge had power or was correct in deciding upon the case. It is not meant to "judge the Judge" so to speak. Judges are considered competent enough to make their own decisions on merits and another judge should not be questioning them except for in limited situations (judicial/procedural review or appeals on questions of law).
Judicial review looks at issues such as:
- Did the decision maker have power to decide in this case?
- If so, did the decision maker act according to their powers (what was giving to them under legislation) or did they act outside of these powers?
- Did the decision maker follow correct procedure?
It does not ask questions such as did they apply the proper facts to the law, evidentiary matters, did they follow proper procedure and rules, should they have ruled this way rather than that way, were they correct in accepting one version of facts over another etc.
In practice, the line between the two may get murky since sometimes it is not possible to ask "did they act outside of power in making their decision" without turning to the substance of the dispute and what factors the decision maker considered and how much they impacted the ultimate decision. However, most administrative reviews are done by experienced people who are good at balancing this line.
To give a blunt analogy (off the top of my head), review of merits is like going in and judging a parent for how they parent/teach their child and then substituting their parenting decisions with one of out own because we think it is better/correct. Judicial review, on the other hand, is like asking, is that person really a parent of that child so that they are able to making parenting/guardianship decisions for the child? If not, we cannot allow that parenting decision to stand. But if yes, we should not intervene (except in limited circumstances) and substitute their decision for our own.
Judicial review does not look at the merits of the case. This is due to the separation of powers. Judicial review is an administrative/executive function. the reason why judicial review cannot (or rather, should not) consider the merits of a case is to maintain certainty and finality of judgments. Further, those exercising judicial review are only asking whether the judge had power or was correct in deciding upon the case. It is not meant to "judge the Judge" so to speak. Judges are considered competent enough to make their own decisions on merits and another judge should not be questioning them except for in limited situations (judicial/procedural review or appeals on questions of law).
Judicial review looks at issues such as:
- Did the decision maker have power to decide in this case?
- If so, did the decision maker act according to their powers (what was giving to them under legislation) or did they act outside of these powers?
- Did the decision maker follow correct procedure?
It does not ask questions such as did they apply the proper facts to the law, evidentiary matters, did they follow proper procedure and rules, should they have ruled this way rather than that way, were they correct in accepting one version of facts over another etc.
In practice, the line between the two may get murky since sometimes it is not possible to ask "did they act outside of power in making their decision" without turning to the substance of the dispute and what factors the decision maker considered and how much they impacted the ultimate decision. However, most administrative reviews are done by experienced people who are good at balancing this line.
To give a blunt analogy (off the top of my head), review of merits is like going in and judging a parent for how they parent/teach their child and then substituting their parenting decisions with one of out own because we think it is better/correct. Judicial review, on the other hand, is like asking, is that person really a parent of that child so that they are able to making parenting/guardianship decisions for the child? If not, we cannot allow that parenting decision to stand. But if yes, we should not intervene (except in limited circumstances) and substitute their decision for our own.
Hi chilli123,
Sorry, misread your question.
Judicial review should not involve review of merits, for the above reasons. In practice, this may not be helped in some situations because to ask something such as "did they act outside their power", you will need to look at what they decided, how they reached that decision, their reasoning, whether that reasoning and the evidence/facts relied upon properly constitute factors that properly fall within their power. There is a ground whereby judges should not intervene (or rather, refuse to intervene) with matters of policy. The question of what is policy, whether the facts/issues constitute public policy must necessarily turn to what is being disputed and presented before the court. The ground of judicial review that the decision maker did not make into account proper factors or took into account improper factors will also blur the lines between judicial review and merits. This is because the review will turn on what factors were actually taken into account and were they relevant to the final decision and if so, by how much? Would the decision have remained had that factor not been taken into account (or if that factor was taken into account)?
Sorry, misread your question.
Judicial review should not involve review of merits, for the above reasons. In practice, this may not be helped in some situations because to ask something such as "did they act outside their power", you will need to look at what they decided, how they reached that decision, their reasoning, whether that reasoning and the evidence/facts relied upon properly constitute factors that properly fall within their power. There is a ground whereby judges should not intervene (or rather, refuse to intervene) with matters of policy. The question of what is policy, whether the facts/issues constitute public policy must necessarily turn to what is being disputed and presented before the court. The ground of judicial review that the decision maker did not make into account proper factors or took into account improper factors will also blur the lines between judicial review and merits. This is because the review will turn on what factors were actually taken into account and were they relevant to the final decision and if so, by how much? Would the decision have remained had that factor not been taken into account (or if that factor was taken into account)?
Hi Sarah J,
Thank you for the answer.
Might you know any recent cases which involves courts decide on merits while engaging in judicial review?
Thank you
Kind regards
Hi @chillie123
Are you able to provide greater context to your question?
Do you believe you've been involved in a matter that has made a decision involving both merits and judicial review?
Are you able to provide greater context to your question?
Do you believe you've been involved in a matter that has made a decision involving both merits and judicial review?
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