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are no barriers between issues of fact and issues of law the differences between
administrative bodies and judicial bodies also seems blurry.
What is merits review
With the increase in transaction between the government and its citizens in Australia, post-
war, a momentum started taking shape for administrative law forum. Post war the
developments were directed towards improving and protecting the citizens as the Aiustralian
government saw a large number of decisions affecting citizens so administrative bodies were
set up as a means to ‘test correctness and value of these decisions taken by government’.
Since judicial review was an expensive and technical process which did not focus on merits
of the decision, which the individuals had desired the most in those times. So administrative
bodies were set up in Australia to provide the solution and meet with the objective.
Australia adopted the concept of tribunals carrying administrative functions from England.
Merits review in layman language is a technique where decision is reconsidered by the
executive. The merit review board reviews the original decision taken by executive and on
the same facts of the case frame a new decision if it disagrees with the earlier decision or it
can also agree with the previous decision. As held in Drake v Minister for Immigration and
Ethnic Affairs, Chief Justice Bowen and Justice Deane held that the merits to be considered
before a tribunal are that “whether the decision and the material available before the tribunal
upon which the tribunal ponders over is a correct or preferable one”.3 For example as per
Part IVC of The Taxation Administration Act 1953, taxable income wrongly assessed by
Commissioner of Taxation in Australia can be appealed against before the Administrative
Appeals Tribunal (hereinafter called as ‘AAT’) for merits review. And AAT can decide on
merits based on the evidence available before it.4
3 (1979) 46 FLR 409.
4 The Taxation Administration Act 1953 , Cth, Part IVC.

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