This paper examines the relationship between so-called “merits review” of administrative decision-making, and “judicial review” of administrative action as that term is used in the title of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act), for instance. In particular, it assesses and, in some respects, challenges the widely held view that there is a qualitative difference between merits review and judicial review. The main thrust of my argument will be that the differences between judicial review and merits review are not as stark as they are often portrayed. More provocatively, I will suggest that merits review can plausibly be described as judicial review in disguise.

Section I considers the constitutional underpinnings of merits review, and concludes that from a functional point of view, the exclusion of merits review from the judicial power of the Commonwealth is hard to justify. Section II examines various suggested distinctions between judicial review and merits review. Its main conclusion is that merits review is characterised by the power to exercise afresh the decisionmaking power invested in the original decision-maker.

This essay addresses two related questions: is participation by citizens in administrative decision-making constitutionally regulated? And if so, to what extent and in what circumstances? Obviously, answers to these questions may vary from one constitutional system to another. The limited aim of the essay is briefly to survey some of those answers and suggest how they might be explained. I will not attempt to state comprehensively the relevant law of any jurisdiction, but I will draw illustrations and examples from several. Nor (for reasons of space) will I tackle any of the underlying theoretical, empirical and practical questions about the functions, effects, costs and benefits of participation and its constitutional regulation. Nevertheless, the essay’s modest objective is worth pursuing in order to provide a clear analytical framework for consideration of such questions. Much of the very large literature on participation does not expressly advert to its constitutional regulation.

Bracketing his scholarship on administrative law and legal history, Michael Taggart is probably best known as the champion and chronicler of that genre of legal (and, more generally, scholarly) literature known as the ‘festschrift’. Despite the fact that this volume marks Mike’s very early retirement, because of ill-health, as Alexander Turner Professor of Law at the University of Auckland, the publication of a festschrift for the scholar who has done most to bring the genre out of the shadows is an event the reflexivity of which I am sure the honorand himself – being a man of wit and irrepressible joie de vivre – has found pleasing and amusing. The very title of the volume – a deprecatory self-description, we are told – echoes Mike’s interest in exploring the common law species of a genus which was, until recent years at least, much more popular in civil law than in common law countries.