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Inconsistencies in the rights of review of the merits of Commonwealth administrative decisions

Government intervention in the financial and social affairs of citizens has increased dramatically in the last fifty years. As a result, government administrative decisions continually affect the everyday lives of people. Many of these decisions are discretionary. Modern administrative law has grown to meet the need for governments, rather than the courts, to supervise the exercise of administrative power so that injustice resulting from misuse of power can be avoided. The merits review system is an integral part of this administrative law. The effectiveness of the merits review system is dependent upon how Parliament makes provision for merits review in the legislative process. The object of this thesis is to analyse and evaluate the effectiveness of the scope of the Commonwealth administrative law merits review system. An evaluation of the availability of rights of review of the merits of Commonwealth administrative decisions will determine the extent to which Commonwealth law provides for merits review of administrative decisions. This thesis makes such an evaluation by undertaking an empirical study of the merits review provisions in Commonwealth legislation. The empirical study analyses 1,070 Commonwealth statutes and establishes that there are 340 statutes that confer power to make a reviewable decision or decisions. However, only 30 percent of these statutes provide for merits review of all reviewable decisions, while 44 percent provide for merits review of some decisions and 26 percent do not provide for merits review of any decisions. Consequently, the empirical study identifies inconsistencies in the provision of merits review of Commonwealth administrative decisions. The Australian parliamentary executive system of government has permitted a breakdown in the legislative drafting process that has allowed these inconsistencies to develop. Moreover, the executive arm of the Commonwealth government has diminished its accountability to Parliament for some of the administrative decisions made by it. A person affected by an unreviewable administrative decision may be treated unjustly as a result.