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Difference, Boundary, Distinction Between Merits and Judicial Review

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QUESTION: DIFFERENCE, BOUNDARY, DISTINCTION BETWEEN MERITS AND JUDICIAL REVIEW
Merits Review and Judicial Review are both mechanisms for one to appeal to for a review of a decision made against them. There are many differences and distinctions between the two, however, sometimes the boundaries between them are blurred. As Merits Review is undertaken at a Tribunal, which is part of the Executive arm of government, and Judicial Review is undertaken within the Courts system, part of the Judicial arm of government, their processes and jurisdiction are distinguished. However, often the role of a Tribunal is likened to one of a Court, and the lines between the separation of powers, particularly Executive and Judicial, are blurred.

In terms of jurisdiction and main function of Merits Review and Judicial Review, they are easily distinguished. The jurisdiction to undertake Merits Review by applying to the Administrative Appeals Tribunal is under the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). Judicial Review, on the other hand, can be completed at common law or statute, under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). The main distinction between the two is that Merits Review considered whether decisions are substantially correct, whereas Judicial Review considers the legality of the decision. A new administrative decision-maker asks ‘Is this the best decision on the merits’, and then by undergoing do novo review, they look at the facts anew and substitute the original decision with their own decision. Contrastingly, a Court in Judicial Review may review errors of law but not errors of fact, and therefore has to only consider the original decision and either allow or dismiss the appeal based on whether they have found an error of law.

Merits Review and Judicial Review both aim to assist people in appealing their decisions,…...

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