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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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