The Merits of ‘Merits’ Review: A Comparative Look at the Australian Administrative Appeals Tribunal
Stanford Law School
Jeffrey S. Lubbers
American University - Washington College of Law
March 14, 2011
Windsor Yearbook of Access to Justice, Forthcoming
Stanford Public Law Working Paper No. 1785894
American University, WCL Research Paper No. 2011-10
This article compares several systems of administrative adjudication. In the U.S., adjudication is typically performed by the same agency that makes and enforces the rules. However, in Australia, almost all administrative adjudication is performed by the Administrative Appeals Tribunal (AAT), a non-specialized adjudicating agency, and several other specialized tribunals that are independent of the enforcing agency. These tribunals (which evolved out of concerns about separation of powers) have achieved great legitimacy. In the U.K., recent legislation (the Tribunals, Courts and Enforcement Act) merged numerous specialized tribunals into a single first-tier tribunal with much stronger guarantees of independence than previously existed. An upper tribunal hears appeals from the first tier and largely supplants judicial review. The article concludes by asking whether the U.S. could learn anything from the Australian and U.K. experience and suggests that a single tribunal to adjudicate federal benefits cases might be a significant improvement over the existing model.
Number of Pages in PDF File: 28
Keywords: Administrative Law, Comparative Law, Administrative Adjudication, Administrative Appeals Tribunal, AAT, Tribunals Courts and Enforcement ActAccepted Paper Series
Date posted: March 19, 2011
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