The Merits of ‘Merits’ Review: A Comparative Look at the Australian Administrative Appeals Tribunal

28 Pages Posted: 19 Mar 2011

See all articles by Michael Asimow

Michael Asimow

SANTA CLARA LAW SCHOOL

Jeffrey S. Lubbers

American University - Washington College of Law

Date Written: March 14, 2011

Abstract

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.

Keywords: Administrative Law, Comparative Law, Administrative Adjudication, Administrative Appeals Tribunal, AAT, Tribunals Courts and Enforcement Act

Suggested Citation

Asimow, Michael R. and Lubbers, Jeffrey S., The Merits of ‘Merits’ Review: A Comparative Look at the Australian Administrative Appeals Tribunal (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. Available at SSRN: https://ssrn.com/abstract=1785894

Michael R. Asimow (Contact Author)

SANTA CLARA LAW SCHOOL ( email )

500 El Camino Real
Santa Clara, CA 95053
United States
408-551-3283 (Phone)

Jeffrey S. Lubbers

American University - Washington College of Law ( email )

4300 Nebraska Avenue N.W.
Washington, DC 20016
United States

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