What is the difference between merits review and judicial review?

When challenging a government or council decision in Queensland, the single most important question to answer first is: which type of review is available to you? The answer shapes everything: which court or tribunal you go to, what outcome you can realistically achieve, how much it will cost, and whether you can represent yourself. The two types are merits review and judicial review, and they are fundamentally different.

The Queensland Law Handbook provides a useful overview of administrative law and the review mechanisms available at queenslandlawhandbook.org.au: Complaints About Government .

Merits Review: Was This the Right Decision?

Merits review allows an independent body to examine a decision on its full merits and, if it disagrees, substitute an entirely different outcome. The reviewing body effectively steps into the shoes of the original decision-maker and asks: was this the correct or preferable decision, given all the facts and circumstances?

If merits review succeeds, the reviewing body does not just send the matter back. It can make a fresh decision of its own. For an applicant, this means a real prospect of a different substantive outcome.

Where Merits Review Happens in Queensland

Planning and Environment Court For development decisions, merits review is available to the Planning and Environment Court under Chapter 6 of the Planning Act 2016 (Qld) . The court can grant a development that was refused, refuse a development that was approved, or impose different conditions. This is the most commonly used merits review jurisdiction for ordinary Queensland residents.

QCAT The Queensland Civil and Administrative Tribunal conducts merits review across a wide range of licensing and regulatory decisions. Examples include:

• weapons licence decisions (where QCAT can substitute its own decision for that of Queensland Police)
• occupational licensing decisions by professional boards
• certain decisions made by government agencies under specific legislation

Information is available at QCAT: Review of Government Agency Decisions .

Administrative Review Tribunal (ART): Federal Level At the federal level, merits review is handled by the Administrative Review Tribunal (ART), which replaced the former Administrative Appeals Tribunal (AAT) on 14 October 2024 under the Administrative Review Tribunal Act 2024 (Cth) . The ART conducts merits review of federal government decisions including migration, tax, social security, freedom of information, and many other categories. Information is available at art.gov.au .

Judicial Review: Was the Decision Made Lawfully?

Judicial review is concerned only with the legality of the decision, not its merits. The court does not ask whether the decision was correct, fair, or sensible. It asks a narrower and more technical question: was the decision made in accordance with the law?

The Grounds for Judicial Review

Under the Judicial Review Act 1991 (Qld) , a decision can be challenged on any of the following grounds:

1. No jurisdiction (ultra vires): The decision-maker did not have the legal power to make the decision at all.
2. Failure to follow required procedures: The law required a specific process (for example, giving notice, holding a hearing, or consulting a particular body) and that process was not followed.
3. Irrelevant considerations: The decision-maker took into account something they were not legally permitted to consider.
4. Failure to consider relevant matters: The decision-maker ignored something the law required them to take into account.
5. No evidence: The decision was based on findings of fact for which there was no evidence.
6. Improper purpose: The decision-maker used their power for a purpose other than the purpose for which the law gave them that power.
7. Bad faith: The decision was made dishonestly or for a corrupt reason.
8. Unreasonableness (Wednesbury unreasonableness): The decision was so unreasonable that no reasonable decision-maker could have made it. This is a very high bar and rarely established.
9. Denial of natural justice: The affected person was not given a fair hearing, was not notified of the case against them, or the decision-maker had a conflict of interest.

At the federal level, the equivalent grounds are codified in the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). Additionally, the High Court’s original jurisdiction under s 75(v) of the Constitution provides a constitutional guarantee of judicial review of federal executive action that cannot be removed by Parliament, even if the ADJR Act were repealed.

Where Judicial Review Happens

State decisions: Applications for judicial review of Queensland state government decisions are made to the Supreme Court of Queensland under the Judicial Review Act 1991 (Qld). Information is available at courts.qld.gov.au: Supreme Court .

Federal decisions: Judicial review of federal government decisions is made to the Federal Court of Australia under the ADJR Act, or directly to the High Court of Australia under s 75(v) of the Constitution. The Federal Court is the usual starting point; the High Court’s original jurisdiction is reserved for cases of significant constitutional importance.

What Happens If Judicial Review Succeeds?

If a judicial review application succeeds, the court does not substitute a new decision. The usual remedy is one or more of the following:

• Certiorari: An order quashing the original decision, setting it aside as if it were never made.
• Mandamus: An order compelling the decision-maker to perform a duty they have refused or failed to perform.
• Prohibition: An order preventing the decision-maker from continuing to act without authority.
• Declaration: A court statement that the decision was unlawful, without necessarily granting further relief.
• Injunction: An order restraining the decision-maker from giving effect to a decision while it is under challenge.

Critically, the decision-maker is then free to make the decision again, this time following the correct process. They may reach the exact same substantive outcome. This is the most important limitation of judicial review that people do not appreciate before embarking on the process.

Cost and Practicality

The cost difference between the two types of review is significant.

Merits review through QCAT or the Planning and Environment Court for smaller matters can sometimes be managed without a lawyer for straightforward disputes, though legal representation is advisable for complex planning appeals. QCAT filing fees are modest; court filing fees vary.

Judicial review in the Supreme Court or Federal Court is an entirely different proposition. You are advancing complex legal arguments against experienced senior counsel acting for the government. The process involves affidavits, written submissions, and potentially weeks of hearing time. Costs can run into hundreds of thousands of dollars, and if you lose, you will generally be ordered to pay the government’s costs as well. Judicial review applications are almost always brought by well-resourced interest groups or individuals who have obtained comprehensive legal advice before they begin.

Side by Side

	Merits Review	Judicial Review
Question asked	Was this the right decision?	Was this decision made lawfully?
Outcome if successful	Reviewing body substitutes its own decision	Decision set aside; original decision-maker remakes it
Can same outcome result?	No; a fresh decision is made	Yes; decision may be remade the same way
Queensland state body	Planning and Environment Court, QCAT	Supreme Court of Queensland
Federal body	Administrative Review Tribunal (ART)	Federal Court or High Court
Cost	Moderate; self-representation sometimes possible	Very high; legal representation essential
Legal complexity	Moderate	High
Available for	Only where legislation expressly provides for it	Any decision made under legislation or executive power

When Is Merits Review Not Available?

Merits review is only available where the legislation creating the decision expressly provides for it. Many government decisions do not have a merits review pathway. In those cases, judicial review is the only formal legal option. This is why identifying the precise legislation under which a decision was made is the first step in any administrative law matter.

If neither pathway is available or practical, non-legal strategies including political lobbying, media engagement, community organising, and complaint to the Queensland Ombudsman (for process concerns short of judicial review) may be appropriate. The Queensland Ombudsman can investigate complaints about the conduct of government agencies and recommend changes without the cost of court proceedings.

Last updated: May 2026 — see also Ep 13: Administrative Law and Government Decisions | What is Administrative Law in Queensland? | How do I request a statement of reasons? | What is natural justice?