Merits review 

Merits review is the process by which a body other than the original decision-maker reconsiders an administrative decision on its full merits, and can substitute its own view of the correct or preferable outcome. It is the most powerful accountability mechanism available against administrative action, and understanding what it can do — and where it is available — is essential before turning to the narrower supervisory jurisdiction of the courts.

Standing in the shoes of the decision-maker

The defining feature of merits review is that the reviewer does not merely check whether the original decision was lawfully made. It stands in the shoes of the original decision-maker: it can look afresh at the facts, weigh the evidence, apply the relevant law and policy, and reach its own conclusion about what the correct or preferable decision is. If the reviewer disagrees with the outcome — even where the original decision was made carefully, lawfully and in good faith — it can substitute a different result. Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577¹ is the source of this "correct or preferable decision" standard.

This is a fundamentally different exercise from judicial review. A court exercising judicial review does not ask whether the decision was the best one available; it asks whether the decision-maker acted within the limits of their legal authority. Merits review asks the wider question: on all the facts and law now available, what decision should have been made?

Internal review

Many statutory schemes provide for internal review as a first step: the decision is reconsidered by another, often more senior, officer within the same agency, before or instead of external review. Internal review can be quicker and less formal than tribunal proceedings, but it lacks the independence of an external body, since the reviewer remains part of the same administrative structure whose decision is under challenge.

Tribunal merits review

Beyond internal review, many statutory schemes confer a right to have a decision reviewed by an independent tribunal. Tribunals conducting merits review are not courts; they exercise administrative rather than judicial power, but they typically operate with hearing procedures, evidence-gathering powers and published reasons that resemble adjudication in form.

The Commonwealth maintains a general merits-review tribunal intended to consolidate review of a wide range of federal administrative decisions, and most Australian states and territories run their own tribunals performing an equivalent function for decisions made under state or territory legislation. Because tribunal structures and names have been the subject of reform and renaming over time, and because coverage differs between schemes, a student should always check the specific enabling legislation for the decision in question rather than assume a single uniform national or state model. Not every administrative decision carries a right to merits review at all — the right must be conferred by the particular statute under which the decision was made.

Limits of merits review

Merits review is powerful but bounded. A reviewer can only review decisions of a kind, and made by an entity, that its enabling legislation brings within its jurisdiction — it has no free-standing power to review any executive action a party dislikes. Merits review also generally requires the reviewer to apply the law and policy in force at the time of its own decision, which can mean the outcome differs from what was correct when the original decision was made. And because the reviewer is exercising administrative power, its decision remains itself susceptible to further review — by a higher tribunal where the structure provides one, or by judicial review on legality grounds.

Why the distinction from judicial review matters

Because merits review lets a reviewer disagree with a decision simply because it thinks a different outcome preferable, it offers a remedy judicial review cannot: correction of decisions that were lawful but, in the reviewer's view, wrong on the facts or the exercise of a discretion. Conversely, where no merits review right exists — because the statute does not confer one, or the class of decision is excluded — the only recourse against a legally flawed decision is judicial review, with its narrower focus on legality rather than correctness.

Applying this in a problem question

1. Identify the statute under which the decision was made and check whether it confers a right of internal review, tribunal review, or both.
2. If a review right exists, identify the correct forum and any time limits or procedural preconditions.
3. State the standard being applied: the correct or preferable decision, not mere legality.
4. Explain what evidence or arguments could change the outcome on a fresh, complete reconsideration of the merits.
5. If no merits review right exists, say so explicitly, and explain why the affected person may need to consider judicial review instead.