Merits Review vs Judicial Review in Australia

If a government department, agency or minister has made a decision that affects you, there are two very different ways to challenge it. Merits review asks a tribunal to look at your case afresh and decide what the correct or preferable decision is; at the Commonwealth level this is done by the Administrative Review Tribunal (ART), which replaced the Administrative Appeals Tribunal (AAT) on 14 October 2024, and in NSW state matters it is generally done by the NSW Civil and Administrative Tribunal (NCAT). Judicial review asks a court to decide only whether the decision was made lawfully, for example whether the decision-maker followed correct procedure, applied the right legal test and afforded procedural fairness; it does not re-decide the merits. In NSW, judicial review is generally sought in the Supreme Court under section 69 of the Supreme Court Act 1970 (NSW), and at the Commonwealth level in the Federal Court, Federal Circuit and Family Court, or the High Court. Strict time limits apply to both pathways, often as short as 28 days or less, so it is important to identify the right avenue and act quickly. If you have received an adverse government decision, you should get advice promptly to work out which review pathway is available to you and whether the time limit has already started running.

Who this article is for and the jurisdiction it covers

This article applies to Commonwealth administrative law under the Administrative Review Tribunal Act 2024 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth), and to NSW administrative law under the Civil and Administrative Tribunal Act 2013 (NSW), the Administrative Decisions Review Act 1997 (NSW) and section 69 of the Supreme Court Act 1970 (NSW). It is written for people in Hornsby and the Upper North Shore, including Waitara, Asquith, Wahroonga, Thornleigh and Pennant Hills, who have received a decision from a government department, agency, minister or tribunal and want to understand whether, and how, it can be challenged. It does not cover appeals within the ordinary court hierarchy from criminal or civil judgments, which follow separate rules.

An adverse decision from a government body, whether about a visa, a licence, a benefit or a regulatory matter, can have serious consequences, and it is common to feel unsure where to turn. The law provides structured pathways for challenging these decisions, but they operate differently and have different, often tight, time limits. If you have received a decision you want to challenge, you can call Caspian Legal in Hornsby on 02 7264 3200 to discuss which pathway may apply to your situation.

What is the difference between merits review and judicial review?

Merits review and judicial review both allow a government decision to be challenged, but they ask fundamentally different questions. Merits review asks: was this the correct or preferable decision on the facts and the law? The reviewing tribunal effectively steps into the shoes of the original decision-maker, can consider new evidence, and can affirm, vary, set aside and substitute the decision, or send it back to the original decision-maker with directions. Judicial review asks: was this decision made lawfully? A court reviewing a decision does not ask whether it agrees with the outcome; it asks whether the decision-maker acted within power, followed the correct legal process and afforded procedural fairness. A court cannot substitute its own view of the facts or the correct outcome purely because it disagrees with the result.

Key terms explained

Term	Plain English meaning
Merits review	A fresh look at the facts and law of a decision by an independent tribunal, which can substitute its own decision.
Judicial review	A court examining whether a decision was made lawfully, not whether it was correct on the facts.
Administrative Review Tribunal (ART)	The Commonwealth tribunal that conducts merits review of most federal government decisions, replacing the AAT from 14 October 2024.
NCAT	The NSW Civil and Administrative Tribunal, which conducts merits review of many NSW government decisions where legislation gives it that power.
Jurisdictional error	A legal error so fundamental that the decision-maker is taken not to have validly exercised their power at all; the main ground for judicial review.
Procedural fairness	The right to a fair hearing and a decision-maker free from bias; a breach of this can found judicial review.
Statement of reasons	A written explanation from the decision-maker of how and why the decision was made, often needed before you can properly assess your options.
Standing	The legal right to bring a review application, generally requiring that the decision affects your interests.

Merits review at the Commonwealth level: the Administrative Review Tribunal (ART)

The Administrative Review Tribunal (ART) was established by the Administrative Review Tribunal Act 2024 (Cth) and began operating on 14 October 2024, replacing the former Administrative Appeals Tribunal (AAT). The ART conducts independent merits review of a wide range of Commonwealth government decisions, including many decisions relating to migration and citizenship, social security, veterans’ entitlements and taxation, but only where an Act, regulation or other legislative instrument specifically gives the ART the power to review that type of decision; it does not have a general review power. Under section 105 of the ART Act, the Tribunal can affirm the decision under review, vary it, set it aside and substitute its own decision, or set it aside and remit the matter to the original decision-maker with directions or recommendations.

Time limits to apply to the ART are strict and vary depending on the type of decision. Under section 18 of the ART Act and the Administrative Review Tribunal Rules 2024 (Cth), the general time limit for many decisions is 28 days after notification, a statement of reasons, or a related event, and this may sometimes be extended by the Tribunal. However, for many migration and protection decisions, the time limit is separately fixed, commonly around 7 to 28 days depending on the category and whether the person is in immigration detention, and the ART does not have power to extend some of these migration time limits at all. Because the applicable time limit depends on the specific decision and the legislation under which it was made, it is essential to check the decision letter carefully and seek advice promptly.

Merits review in NSW: the NSW Civil and Administrative Tribunal (NCAT)

For decisions made by NSW Government agencies, merits review is generally available through the NSW Civil and Administrative Tribunal (NCAT), established under the Civil and Administrative Tribunal Act 2013 (NSW). The Administrative Decisions Review Act 1997 (NSW) gives NCAT’s Administrative and Equal Opportunity Division exclusive jurisdiction to review decisions that are expressly made “administratively reviewable” by the legislation under which they were made, such as certain decisions about firearms licences, working with children checks, privacy and state revenue matters. As with the ART, NCAT only has the power to review a decision where legislation specifically confers that jurisdiction; there is no general right to a merits review of every government decision. A typical time limit for lodging an NCAT administrative review application is 28 days from the decision, though this can vary by decision type, and a late application generally requires an explanation for the delay.

Judicial review: courts, not tribunals

Judicial review is conducted by courts, not tribunals, and focuses on the lawfulness of a decision rather than its correctness. At the Commonwealth level, judicial review is most commonly sought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) in the Federal Court or the Federal Circuit and Family Court of Australia (Division 2), or under section 39B of the Judiciary Act 1903 (Cth), which reflects the jurisdiction conferred on the High Court by section 75(v) of the Australian Constitution. Section 5 of the ADJR Act sets out the grounds of review, which broadly correspond to two overarching categories recognised at general law: jurisdictional error and error of law on the face of the record.

In NSW, there is no direct equivalent of the ADJR Act. Judicial review of state government and some tribunal decisions is generally sought in the Supreme Court of NSW under its supervisory jurisdiction, exercised through section 69 of the Supreme Court Act 1970 (NSW) and Part 59 of the Uniform Civil Procedure Rules 2005 (NSW). Relief under section 69 is available only for jurisdictional error or an error of law on the face of the record, the same two general categories recognised federally, even though NSW does not have a codified list of grounds like section 5 of the ADJR Act.

Common grounds for judicial review

Ground	What it means
Breach of natural justice / procedural fairness	You were denied a fair hearing, or the decision-maker was affected by bias.
No jurisdiction / jurisdictional error	The decision-maker did not have the legal power to make the decision, or made a legal error so serious the decision is treated as not validly made.
Improper exercise of power	The decision-maker took into account irrelevant considerations, failed to consider relevant ones, or exercised a discretion for an improper purpose.
Error of law	The decision-maker misunderstood or misapplied the relevant law, whether or not that error appears on the face of the decision record.
No evidence	The decision was made without any evidence to support a necessary finding of fact.
Unreasonableness	The decision is so unreasonable that no reasonable decision-maker could have made it (a high bar to meet).

Importantly, a court exercising judicial review is not permitted to simply substitute its own view of what the correct decision should have been. Even where a court finds a legal error, the usual remedy is to set the decision aside and send the matter back to the original decision-maker to be made again according to law, rather than the court making a new decision itself.

Choosing between merits review and judicial review: step by step

1. Identify exactly what decision you have received and read the decision letter and any statement of reasons carefully, including any time limit stated.
2. Check whether merits review is available for this type of decision, and if so, which body has jurisdiction (the ART for most Commonwealth decisions, NCAT for many NSW decisions, or occasionally another specialist tribunal).
3. If merits review is available and the outcome you want is a different decision on the facts, merits review is usually the more appropriate and cost-effective first step, because it allows a fresh look at the evidence.
4. If merits review is not available, or you believe the decision-making process itself was legally flawed (for example, you were denied a fair hearing), consider judicial review in the Federal Court, Federal Circuit and Family Court, High Court, or the Supreme Court of NSW, depending on the decision.
5. Confirm the applicable time limit before doing anything else. Time limits for both merits and judicial review are often short, sometimes as little as 7 to 28 days, and some cannot be extended at all.
6. Get legal advice as early as possible, particularly if you are unsure which pathway applies or the time limit is approaching.

Merits review compared with judicial review

Feature	Merits review	Judicial review
Question asked	Was this the correct or preferable decision?	Was this decision made lawfully?
Decision-maker	Tribunal (ART federally, NCAT in NSW, or another specialist tribunal)	Court (Federal Court, Federal Circuit and Family Court, High Court, or NSW Supreme Court)
New evidence	Generally allowed; the tribunal reconsiders the facts afresh	Generally not allowed; the court reviews the legality of the process, not the facts
Possible outcome	Affirm, vary, substitute a new decision, or remit with directions	Usually sets the decision aside and remits it to be decided again according to law
Availability	Only where legislation expressly confers review jurisdiction on the tribunal	Available more broadly through the courts’ inherent or statutory supervisory jurisdiction, subject to any valid statutory limits
Typical time limit	Commonly around 28 days, sometimes shorter for migration matters	Varies by pathway; for example, ADJR Act applications and Migration Act judicial review often carry short, strict limits

Documents to prepare

• The original decision letter and any notice of the outcome.
• Any statement of reasons provided, or your request for one if it has not yet been given.
• Evidence relevant to the decision, such as supporting documents you provided (or wanted to provide) to the original decision-maker.
• Any correspondence with the department, agency or tribunal about the decision or the review process.
• A timeline of key dates, including when you were notified and when any statement of reasons was received.
• If alleging a breach of procedural fairness: details of what occurred during the decision-making process and any evidence supporting that account.

What not to do

1. Do not assume every government decision can be reviewed. Merits review is only available where legislation specifically allows it, and judicial review is limited to legal errors, not disagreement with the outcome.
2. Do not delay. Time limits for both merits and judicial review are often short and, in some cases, cannot be extended at all.
3. Do not treat judicial review as a second chance to argue the facts again. Courts will not simply substitute their own view because they might have decided the matter differently.
4. Do not ignore the possibility of merits review because it seems informal. Tribunals can still substitute a completely different outcome and are often faster and less costly than court proceedings.
5. Do not assume a favourable review outcome is guaranteed. Both pathways depend heavily on the specific facts, the applicable legislation and the evidence available.

Frequently asked questions

What is the main difference between merits review and judicial review?

Merits review asks whether the decision was correct on the facts and the law, and allows a tribunal to substitute a new decision. Judicial review asks only whether the decision was made lawfully, and a court generally cannot substitute its own decision even if it disagrees with the outcome.

Which body handles merits review of Commonwealth decisions now that the AAT is gone?

The Administrative Review Tribunal (ART), which commenced operation on 14 October 2024 under the Administrative Review Tribunal Act 2024 (Cth) and replaced the Administrative Appeals Tribunal (AAT).

Can I get merits review of a NSW state government decision?

Sometimes. The NSW Civil and Administrative Tribunal (NCAT) can conduct merits review of NSW government decisions, but only for decision types that legislation has expressly made administratively reviewable under the Administrative Decisions Review Act 1997 (NSW).

How long do I have to apply for review?

It depends entirely on the decision and the pathway. Common time limits are around 28 days, but some migration-related time limits are as short as 7 or 9 days and cannot be extended, while others allow longer. Always check the specific decision letter and the legislation that applies to your case.

Can I apply for both merits review and judicial review?

It depends on the decision and the stage you are at. In some circumstances a person may seek judicial review of a tribunal’s decision after merits review has concluded, generally limited to a question of law, but the two pathways ask different questions and are not simply interchangeable alternatives for the same complaint.

Can a court change the outcome of my case during judicial review?

Generally, no. If a court upholds a judicial review challenge, the usual outcome is that the original decision is set aside and the matter is sent back to the decision-maker to be decided again according to law, rather than the court deciding the substantive outcome itself.

Do I need a lawyer to apply for merits review or judicial review?

You are not required to have a lawyer for either pathway, and representation before some tribunals may require leave. However, identifying the correct pathway, meeting strict time limits and framing the legal grounds properly are technical tasks where legal advice can make a significant difference to your prospects.

Administrative review and the Hornsby area

Caspian Legal assists clients in Hornsby and surrounding Upper North Shore suburbs, including Waitara, Asquith, Wahroonga, Thornleigh and Pennant Hills, with administrative law matters, including applications for merits review before the Administrative Review Tribunal and NCAT, and judicial review applications in the Federal Court, Federal Circuit and Family Court and the Supreme Court of NSW. These matters commonly arise from visa and citizenship decisions, licensing decisions, and other Commonwealth or NSW government determinations affecting local clients. Caspian Legal is based at 22–28 Edgeworth David Avenue, Hornsby NSW 2077, a short walk from Hornsby station.

What happens in a first consultation?

In a first consultation about a government decision you want to challenge, a solicitor will review the decision letter and any statement of reasons, identify which review pathway or pathways may be available, confirm the applicable time limit, and explain the evidence and steps involved in pursuing merits review, judicial review, or both. We can explain your options; we do not promise particular outcomes.

Speak with a solicitor before your time limit expires

If you have received a government decision you want to challenge, contact Caspian Legal on 02 7264 3200, visit caspianlegal.com.au to make an enquiry or book a consultation, or drop in to our office at 22–28 Edgeworth David Avenue, Hornsby NSW 2077. Time limits for review applications are often very short, so it is important to act quickly.

This article is general information only and is not legal advice. Review rights, grounds and time limits depend on the specific decision and legislation involved. You should obtain legal advice about your specific situation before acting.

Sources

• Administrative Review Tribunal Act 2024 (Cth), ss 9, 18, 105, and the Administrative Review Tribunal Rules 2024 (Cth), legislation.gov.au.
• Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5, legislation.gov.au.
• Judiciary Act 1903 (Cth), s 39B; Commonwealth of Australia Constitution Act, s 75(v).
• Civil and Administrative Tribunal Act 2013 (NSW) and Administrative Decisions Review Act 1997 (NSW), legislation.nsw.gov.au.
• Supreme Court Act 1970 (NSW), s 69, and Uniform Civil Procedure Rules 2005 (NSW), Part 59, legislation.nsw.gov.au.
• Administrative Review Tribunal, “Our role” and “Applying for review”, art.gov.au.
• Supreme Court of NSW, “Supervisory jurisdiction”, supremecourt.nsw.gov.au.
• NSW Civil and Administrative Tribunal, “Administrative review and regulation”, ncat.nsw.gov.au.