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The pertinent issue raised by the facts is whether Comcare’s decision is tainted with errors of law and fact and if so, whether Alan is entitled to a merits review of the decision. 

Merits review is a quasi-judicial process through which administrative decisions are reviewed to determine their fairness and correctness. Accordingly, merits review tribunals conduct an inquiry into the substance of the decision while considering the facts and the law, as opposed to the procedure adopted by an administrative authority in arriving at the impugned decision. 

The Administrative Appeals Tribunal (AAT) is a general jurisdiction review tribunal mandated to conduct independent merits review of administrative decisions. The Federal Court (Full Court) in Director-General of Social Services v Hale defined “decision” as including  a ruling, adjudication or the determination of questions, whether substantive or procedural.

There is wide jurisprudential consensus regarding the powers vested upon the AAT and other merits review tribunals in Australia. In reviewing administrative decisions, the AAT steps into the position of the original administrative decision maker and has the power to affirm, vary, set aside substitute the original decision with a new decision or, in very rare cases, remand the matter to the original decision-maker for reconsideration. It was so affirmed in in the leading case of Minister for Immigration and Ethnic Affairs v Pochi. In Drake v Minister for Immigration and Ethnic Affairs, the Court expressed the position that the AAT’s powers extend to making a “correct and preferable” decision upon considering the applicable facts, law and the impugned original decision. The High Court in Shi v Migration Agents Registration Authority elaborated on the meaning of correct and preferable” and stated that a correct decision is one which is considered to be rightly made. 

The standard of review in workers compensation administrative decisions is whether the decision is fair and reasonable. In this regard, in determining whether a claim for compensation is excluded under statutes such as the SRC Act, administrative bodies must consider the existence of a causal link between an administrative action and the claimed injury. It was so held in Commonwealth Bank of Australia v Reeve and Another where the Court was emphatic that in workers compensation claims, a disease, injury or aggravation must be a consequence of what is identified as reasonable administrative action by an employer.

In Smith v Comcarem, the Federal Court affirmed that an injury will be compensatable under the SRC if the injury is, to a material degree contributed by the employee’s employment by the Commonwealth. 

Turning to the facts of this case, it is apparent that Alan and other police officers went to the subject operation pursuant to an administrative decision of the AFP and they were seriously injured. Although Alan had suffered ‘depression and anxiety’ prior to his employment with the AFP, there is no gainsaying the fact that the violent police operation was a traumatizing event capable of causing depression and anxiety. Indeed, in view of the authorities of Smith v Comcarem (supra), Comcare was duty bound to consider, among other factors, that Alan’s prior diagnosis for depression occurred a long time ago (more than 12 years before the violent operation) and that the operation reasonably contributed to Alan’s depression and anxiety to a material degree. 

In addition, the finding by Comcare to the effect that Alan made false and wilful representation that he did not suffer from depression and anxiety is unfair and unreasonable as no evidence had been led before Comcare to demonstrate Alan’s intention to mislead, if any. There was no requirement to disclose previous history and in any event, Alan simply did not remember his diagnosis from many years before. In the circumstances, Alan has a viable case for merits review of Comcare’s decision before the AAT.


The second issue is whether Alan is entitled to raise for the first time with the AAT a claim that he had not engaged in wilful and false representation before Comcare.

The AAT takes a non-judicial inquisitorial approach to merits review of decisions. The Administrative Appeals Tribunal Act places an obligation upon the AAT to adopt a fair, just, informal and quick procedures so as to ensure enhance delivery of just. Against this backdrop, AAT’s procedures, including those on evidence, are relatively flexible and are not similar to those applied in Courts. This was well articulated by the Court in Casey v Repatriation Commission.

Because the AAT, like other merits review tribunals, is concerned with fact-finding, it may admit new evidence and reassess its weight if the same is relevant to the issues raised in the review. In In this case, Alan can request a review with the Administrative Appeals Tribunal on the mistake of fact that he had forgotten he suffered once from depression. Since Comcare’s Guidelines state that to be wilful, there must be an intention to mislead, the evidence Alan intends to adduce is relevant and of high probative value as it will proffer proof of the absence of intention to mislead Comcare. The fact that Alan did not remember he had been diagnosed with depression many years prior could reasonably be seen as carelessness and mistake and would be sufficient in excluding the error under Comcare’s Guidelines. While adducing the new evidence, Alan would also need to demonstrate that he forgot because of the unique occurrences in his life. 


The last issue for determination is whether Alan would have the right to seek judicial review of Comcare’s decision in the event AAT has no jurisdiction to subject the decision to conduct a merits review of the decision. 

Judicial review, unlike merits review, focuses on the procedural aspects of a decision it is purely a court function. Therefore, a court, in exercising judicial functions does not have the power to delve into the substance of a decision or to make a “correct and preferable” decision. Instead, judicial review allows a court to focus solely on the lawfulness of the decision and it can only result in quashing of an impugned decision.This position has been established in a number of decisions including Holc v Comptroller-General of Customs wherein it was stated that judicial review limits itself to an enquiry as to whether the decision at issue was made in accordance with the law.

That is to say, an aggrieved must demonstrate improprieties in the decisions they challenge while relying on the judicial review grounds codified under the Administrative Decision (Judicial Review) Act. These grounds include breach of natural justice rules, errors of law, fraud, lack of evidence, illegality and other forms of abuse of power.

Alan may successfully challenge Comcare’s decision by way of judicial review, under a number of grounds. First, Comcare breached natural justice in concluding that Alan had made false and wilful representation yet Comcare did not ask Alan to address the issue before the decision was made. There was no hearing of Alan’s defence on this important aspect of the decision. Secondly, Comcare acted in an unreasonable manner when it failed to take into account the surrounding circumstances that could have made Alan to forget about his previous diagnosis and also the degree to which the depression and anxiety was contributed to by the violent operation. For the foregoing, the decision is tainted with procedural improprieties and can be challenged in judicial review by Alan. 

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