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45 Fed. L. Rev. 627 (2017)
Judicial Review and Merits Review: Are the Boundaries Being Eroded?

handle is hein.journals/fedlr45 and id is 629 raw text is: JUDICIAL REVIEW AND MERITS REVIEW: ARE THE BOUNDARIES BEING ERODED? Robin Creyke* ABSTRACT Courts and tribunals have distinct roles within the Australian administrative law system at the federal level, and to a lesser extent, in the states and territories. Questions of law are for the courts, and questions of fact are for the executive and tribunals. From time to time this orthodoxy is questioned. Suggestions are made that the courts are increasingly tending to intrude into the province of tribunals. Using cases as illustrations, this article explores five relevant jurisdictional areas-from appeals on a question of law to deference under the Administrative Decisions (Judicial Review) Act 1977 (Cth) s 10(2)(b)(ii) -to test the accuracy of the suggestion. I INTRODUCTION Courts and tribunals have distinct roles within the Australian administrative law system at the federal level, and to a lesser extent, in the states and territories.1 The accepted position is that questions of law are exclusively for the courts to determine, and questions of fact, including policy, are the province of the executive. The reason is constitutional. In accordance with orthodox principles of separation of power the exercise of judicial power under the Constitution and the Judiciary Act 1903 (Cth) was exclusive of merits review. 2 As noted in the Kerr Committee Report: 'the constitutional limitations Emeritus Professor, Law School, Australian National University. I acknowledge with gratitude, the comments on this article by Emeritus Professor John McMillan and the two reviewers. 1 A 'Tribunal is not a word of precise meaning. However, relevantly in Australia, it has come to describe institutions fulfilling one or more of three functions: reviewing administrative decisions or the executive decisions of government; making original administrative decisions; and resolving disputes in areas including consumer trading, tenancy and similar matters': Lord Justice Carnwath, Murray Chitra, Justice Garry Downes and Peter Spiller, 'An Overview of the Tribunal Scenes in Australian, Canada, New Zealand and the United Kingdom' in Robin Creyke (ed), Tribunals in the Common Law World (Federation Press, 2008) 2. 2 For historical reasons limited exceptions have been acknowledged, examples being the power of Parliament to punish for contempt of breach of privilege (R v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157) and for the military to punish for disciplinary

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