Merits review of Commonwealth environmental decision-making

Environmental and Planning Law Journal

Volumn 26, Issue 2, 2009, Pages 113-127

  Cabarrús, Jason ^a  

^a The Policy and Research section of the Commonwealth Administrative Appeals Tribunal

Author keywords

[No Author keywords available]

Indexed keywords

ACCOUNTABILITY; COMMONWEALTH OF NATIONS; DECISION MAKING; ENVIRONMENTAL LEGISLATION; ENVIRONMENTAL POLICY; REGULATORY FRAMEWORK;

AUSTRALASIA; AUSTRALIA;

EID: 70350359100     PISSN: 0813300X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (129)

1. See, for example, Bates G, Environmental Law in Australia (6th ed, LexisNexis Butterworths, 2006) pp 90-92. Bates also opines: "Licensing of projects and activities that threaten environmental impacts is the cornerstone of environmental management and therefore of environmental law" (p 288).
2. Hon Justice S Morris, The Emergence of Administrative Tribunals in Victoria (Paper delivered at the Annual General Meeting of the Victorian Chapter of the Australian Institute of Administrative Law Inc, Canberra, 13 November 2003) p 2, http://www.vcat.vic.gov.au/CA256902000FE154/Lookup/miscellaneous_pdfs/$file/emergence_of_administrative_tribunals.pdf viewed 10 February 2009.
3. Bates, n 1, p 207.
4. McGrath C, _spaidFlying Foxes, Dams and Whales: Using Federal Environmental Laws in the Public Interest" (2008) 25 Environmental and Planning Law Journal 324 at 330.
5. Blue Wedges Inc v Minister for the Environment, Heritage & the Arts (2008) 167 FCR 463; 157 LGERA 428; [2008] FCA 399 at [129], [131]. In The Wilderness Society Inc v Hon Malcolm Turnbull, Minister for the Environment & Water Resources (2007) 166 FCR 154; [2007] FCAFC 175, the Full Court's summary of its decision similarly noted: "It is necessary to stress that the Federal Court has no jurisdiction to consider the merit or wisdom of any decision of the Minister. The sole concern of the Federal Court in this matter...was the legality of the decisions made by the Minister" (summary, p 2).
6. Administrative Review Council (ARC), Better Decisions: Review of Commonwealth Merits Review Tribunals, Report No 39 (1995) p 9 at [2.2]. The ARC also notes that merits review may be internal (eg when an administrative decision is reviewed by another decision-maker at a higher level than the primary decision-maker within the same department or agency) or external (where the decision is reviewed by an independent body, usually a tribunal) (p 9). In this article, the author uses the term "merits review" to refer to external merits review by an independent body.
7. ARC, n 6, p 11 at [2.9].
8. Land and Environment Court of New South Wales, Report of the Land and Environment Court Working Party (2001) (LEC Working Party) p 43 at [6.3], http://www.lawlink.nsw.gov.au/report/lpd_reports.nsf/pages/lec-working-index viewed 10 February 2009.
9. LEC Working Party, n 8, p 49 at [6.4.4].
10. See, for example, Administrative Appeals Tribunal Act 1975 (Cth), s 2A
11. Bates, n 1, p 210; McGrath, n 4 at 335.
12. See, for example, LEC Working Party, n 8, pp 44-45 at [6.4.1];
13. Lane W and Young S, Administrative Law in Australia, (Lawbook Co, 2007) p 228;
14. Environment Protection Agency, Public Review of the Commonwealth Environmental Impact Assessment Process: Discussion Paper (1994), p 48; ARC, n 6, p 11.
15. See, for example, Hon Justice D O'Connor, Lessons from the Past/Challenges for the Future: Merits Review in the New Millennium (Paper presented at the 2000 National Administrative Law Forum - Sunrise or Sunset? Administrative Law in the New Millennium, June 2000), http://www.aat.gov.au/SpeechesPapersAndResearch/speeches/oconnor/lessons.htm viewed 10 February 2009.
16. Lane.and Young, n 12, p 227; ARC, n 6, p 15.
17. Bates, n 1, p 209.
18. For example in Re Wildlife Protection Association of Australia Inc and Minister for Environment & Heritage [2004] AATA 1383, a case concerning the commercial killing of kangaroos, the tribunal was mindful of the applicant's concerns over animal welfare, particularly in the "emotionally charged environment" surrounding kangaroos, which are a beloved national symbol (at [28]).
19. See, for example, Lane and Young, n 12, p 228;
20. Willey S, "The Merits of Merit-based Planning Appeals: Observations from Australia" (2004) 9 International Planning Studies 261 at 266, 274.
21. Lane and Young, n 12, p 2298;
22. Willey, n 17 at 271.
23. Bates, n 1, p 208; Hon Justice Stein, Use of Expert Assessors in the Hearing of Environmental Cases (Queensland Planning and Environment Court Annual Conference, Brisbane, 26 March 2002), http://www.lawlink.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/pages/SCO_speech_stein_260302 viewed 10 February 2009.
24. LEC Working Party, n 8, p 49 at [6.4.4].
25. See, for example, Willey, n 17 at 263-264.
26. Willey, n 17 at 268.
27. Hon Justice P McClellan, "The Executive and the Judiciary: A Potential for Conflict" (2006) 80 Australian Law Journal 97 at 102.
28. McClellan, n 24 at 102.
29. An enactment may be an Act, regulation or other legislative instrument. The AAT does not have a general power to review any Commonwealth decision - it can only review a decision when an enactment specifically provides that the decision is subject to review by the AAT: Administrative Appeals Tribunal, Annual Report (2007-2008) p 10.
30. The tribunal's jurisdiction list lists over 40 enactments that have potential to impact upon the environment: Administrative Appeals Tribunal Jurisdiction List (as at 30 September 2008), http://www.aat.gov.au/LegislationAndJurisdiction/JurisdictionList.htm viewed 10 February 2009. However, the volume of environmental reviews undertaken by the tribunal is small. In the past 15 years, there have only been 71 applications lodged for review of environmental decisions in the AAT. This is an average of less than five per year, and comprises less than 1% of the tribunal's workload: Administrative Appeals Tribunal, Annual Report (1993-1994 to 2007-2008). The highest volume areas of tribunal environmental decision-making are permissions under the Great Barrier Marine Park Regulations 1983 (Cth), fishing permits under the Fisheries Management Act 1991 (Cth), and wildlife protection decisions under the Environment Protection and Biodiversity Conservation Act 1999 (Cth).
31. Administrative Appeals Tribunal Act 1975 (Cth), s 37.
32. Administrative Appeals Tribunal Act 1975 (Cth), s 33(1)(c).
33. Administrative Appeals Tribunal Act 1975 (Cth), s 40.
34. Administrative Appeals Tribunal Act 1975 (Cth), s 33(1)(a).
35. Administrative Appeals Tribunal Act 1975 (Cth), s 34A. Alternative dispute resolution is defined in s 3 to include conferencing, mediation, neutral evaluation, case appraisal, and conciliation.
36. Administrative Appeals Tribunal Act 1975 (Cth), s 43(1).
37. Deputy President Stephanie Forgie has held part-time positions as Deputy Chairperson of the Land Tribunal (Queensland) and Member of the Land Court (Queensland); Senior Member Ann Cunningham was a Presiding Member of the Tasmanian Resource Management and Planning Appeal Tribunal: Administrative Appeals Tribunal, Annual Report (2007-2008) pp 99, 102.
38. Senior Member Josephine Kelly. Senior Member Kelly has also held the position of statutory counsel for the New South Wales Environment Protection Authority, and edited Environmental Law News from 1989 to 2004: Administrative Appeals Tribunal, Annual Report (2007-2008) pp 106-107.
39. Dr Timothy Hawcroft. Other members appearing in the Member Profiles in the 2007-2008 annual report that had environmental and natural resource management expertise include Dr Edward Christie and Associate Professor Bruce Davis, both of whom ceased being members of the tribunal in January 2008: Administrative Appeals Tribunal, Annual Report (2007-2008) pp 97-8, 99, 104.
40. Administrative Appeals Tribunal Act 1975 (Cth), s 23B(a). The ARC also recommended that at all times the AAT should have two members with relevant experience in environmental law and science: Administrative Review Council, Environmental Decision and the Administrative Appeals Tribunal, Report No 36 (1994) p 45 at [4.37]-[4.39].
41. Administrative Appeals Tribunal Act 1975 (Cth), s 27(1).
42. Administrative Appeals Tribunal Act 1975 (Cth), s 27(2) and (3).
43. See, for example, Mill A, "Mediation of Environmental Disputes by the Administrative Appeals Tribunal" [1993] Queensland Law Society Journal 413 at 416.
44. See, for example, Re Queensland Nickel Management Pty Ltd (formerly Dallhold Nickel Management Pty Ltd) and Great Barrier Reef Marine Park Authority (1992) 28 ALD 368; 16 AAR 319; [1992] AATA 239 (Queensland Nickel case); Re North Queensland Conservation Council and Great Barrier Reef Marine Park Authority [2000] AATA 925 (Nelly Bay case); Re Zen Pearls and Great Barrier Reef Marine Park Authority, and Re the Manbarra People and Great Barrier Reef Marine Park Authority (2004) 82 ALD 573; [2004] AATA 267; [2004] AATA 268 (Zen Pearls case); Re Logan Connolly & Tanina Connolly and Great Barrier Reef Marine Park Authority & Far North Queensland Airwork [2007] AATA 1883; [2007] AATA 2098 (Connolly case).
45. See, for example, Re Wildlife Protection Association of Australia Inc and Minister for Environment & Heritage [2004] AATA 1383; Re Fund for Animals Ltd and Minister of State for Arts, Heritage & Environment (1986) 9 ALD 622; (1985) 8 ALN N286; [1985] AATA 264; [1986] AATA 151 (Queensland Kangaroos 1985-1986 case); Re Wildlife Protection Association of Australia Inc and Minister for the Environment & Heritage (2003) 73 ALD 446; [2003] AATA 236 (NSW Kangaroos 2002-2006 case); Re Wildlife Protection Association of Australia Inc and Minister for the Environment & Heritage (2006) 42 AAR 244; [2006] AATA 29; [2006] AATA 953; [2007] AATA 1091 (Tasmanian Wallabies case); Re Wildlife Protection Association of Australia Inc and Minister for the Environment, Heritage & the Arts [2008] AATA 717; [2008] AATA 846; [2008] AATA 1079 (NSW Kangaroos 2007-2011 case).
46. See, for example, Re Humane Society International and Minister for the Environment & Heritage [2006] AATA 298 (Southern Bluefin Tuna case); Re Nature Conservation Council of NSW Inc and Minister for Environment & Water Resources [2007] AATA 1876 (Grey Nurse Sharks case).
47. CITES is the Convention on the International Trade in Endangered Species. See Re International Fund for Animal Welfare & Humane Society International and Minister for Environment & Heritage (2006) 42 AAR 262; [2005] AATA 1210; [2006] AATA 94 (Asian Elephants case).
48. See Bates, n 1, pp 297-298 for a comparison of the regimes in different States and Territories.
49. Administrative Appeals Tribunal Act 1975 (Cth), s 30(1A).
50. Re Nature Conservation Council of NSW Inc and Minister for Environment & Water Resources [2007] AATA 1876.
51. Re Nature Conservation Council of NSW Inc and Minister for Environment & Water Resources [2007] AATA 1876 at [73].
52. See, for example, Administrative Review Council, Review of Commonwealth Environmental Impact Assessment Decisions: Discussion Paper (1993) pp 11-12; Mill, n 40 at 419.
53. Administrative Appeals Tribunal Act 1975 (Cth), s 2A.
54. Re Queensland Nickel Management Pty Ltd (formerly Dallhold Nickel Management Pty Ltd) and Great Barrier Reef Marine Park Authority (1992) 28 ALD 368; 16 AAR 319; [1992] AATA 239 at [5].
55. ARC, n 49; ARC, n 37.
56. ARC, n 49, pp 12-13.
57. ARC, n 47, p 41.
58. ARC, n 37, pp 42-43.
59. Shortly after the report was released, the review of Commonwealth environmental impact assessment (which led to the Environment Protection and Biodiversity Conservation Act 1999 (Cth)) took priority, and the government advised the ARC that the response to the report would be coordinated with that review (Administrative Review Council, Annual Report (1996-1997) p 161). However, once the Environment Protection and Biodiversity Conservation Act 1999 (Cth) was implemented, the government advised the ARC that, "Given the significant changes in Commonwealth environmental law which have occurred since Report 36 was released, the Government does not propose to respond to that report": Administrative Review Council, Annual Report (2000-2001) p 21.
60. See, for example, Administrative Appeals Tribunal Act 1975 (Cth), s 33(1)(a).
61. See, for example, Rose A, "The Adversarial Model and the Administrative Tribunal" (1999) 4 The Judicial Review 101 at 123.
62. Re International Fund for Animal Welfare & Humane Society International and Minister for Environment & Heritage [2005] AATA 1210 at [43]-[45].
63. See Pain N, "Environmental Decision-Making Processes" in Australian Institute of Administrative Law - Administrative Law and Public Administration: Form vs Substance (Administrative Law Forum, 1995) p 148.
64. ARC, n 37, pp 42-43.
65. Mill, n 40 at 421.
66. Pain, n 60, p 154.
67. The ARC Report refers to a successful mediation in a Great Barrier Reef Marine Park Authority matter: ARC, n 37, p 42 at [4.31]. In a more recent example, the Humane Society International successfully negotiated a better outcome through mediation in relation to the wildlife trade operation in Australia's largest fishery, the Southern and Eastern Scalefish and Shark Fishery: "The Administrative Appeals Tribunal (AAT) encouraged the parties to the dispute to negotiate a settlement to avoid a full court hearing. After months of negotiations, a settlement was concluded last week with HSI successfully negotiating the imposition of five additional conditions on the fishery to ameliorate its impact on threatened species": Humane Society International, SESSF Fishery Appeal, http://www.hsi.org.au/?catID=87 viewed 11 February 2009.
68. In none of the cases examined by the author did the tribunal make a decision on the merits refusing a permission that had been granted by an authority.
69. Re Logan Connolly and Tanina Connolly and Great Barrier Reef Marine Park Authority and Far North Queensland Airwork [2007] AATA 1883; [2007] AATA 2098.
70. Re Zen Pearls and Great Barrier Reef Marine Park Authority, and Re the Manbarra People and Great Barrier Reef Marine Park Authority (2004) 82 ALD 573; [2004] AATA 267; [2004] AATA 268.
71. Re North Queensland Conservation Council and Great Barrier Reef Marine Park Authority [2000] AATA 925. For a critique of the tribunal's decision in this matter
72. see Tager J, "Degraded Site, Degraded Law" (2003) 28 Alternative Law Journal 188.
73. Re Wildlife Protection Association of Australia Inc and Minister for the Environment & Heritage (2006) 42 AAR 244; [2006] AATA 29; [2006] AATA 953; [2007] AATA 1091.
74. Re Wildlife Protection Association of Australia Inc and Minister for the Environment, Heritage & the Arts [2008] AATA 717; [2008] AATA 846; [2008] AATA 1079.
75. Re International Fund for Animal Welfare & Humane Society International and Minister for Environment & Heritage (2006) 42 AAR 262; [2005] AATA 1210; [2006] AATA 94.
76. Re Fund for Animals Ltd and Minister of State for Arts, Heritage & Environment [1986] AATA 151 at [61].
77. As shown for example in its failure to provide adequate T-documents: Re Fund for Animals Ltd and Minister of State for Arts, Heritage & Environment [1986] AATA 151 at [15], [24]-[29].
78. Re Fund for Animals Ltd and Minister of State for Arts, Heritage & Environment [1986] AATA 151 at [29].
79. Re Fund for Animals Ltd and Minister of State for Arts, Heritage & Environment [1986] AATA 151 at [96].
80. Re International Fund for Animal Welfare & Humane Society International and Minister for Environment & Heritage [2006] AATA 94 at [37]-[38].
81. Environment and Heritage Legislation Amendment Act (No 1) 2006 (Cth).
82. See Allars M, "To Breed or Exhibit?: The Asian Elephants Case and Reasons for Regulatory Failure" (2007) 24 Environmental and Planning Law Journal 329 at 334.
83. Re Wildlife Protection Association of Australia Inc and Minister for Environment & Heritage [2004] AATA 1383 at [129].
84. Re Wildlife Protection Association of Australia Inc and Minister for Environment & Heritage [2004] AATA 1383 at [137].
85. Re Humane Society International and Minister for the Environment & Heritage [2006] AATA 298 at [59]. The tribunal continued: "It is obvious that the Minister (in the first instance) and, on review, the Tribunal, are required to embark upon a decision-making process in a field of endeavour which is highly specialised and equally highly uncertain. The evidence and opinions of skilled scientists and others immediately involved in the particular field is critical to the decision the Minister or the Tribunal is required to make. The Tribunal process has provided an opportunity to consider the outcomes expressed in the AFMA strategic assessment. It is appropriate that...the Tribunal rely primarily on the outcomes of the assessment."
86. See commentary in Gullett W, Paterson C and Fisher E, "Substantive Precautionary Decision-making: The Australian Fisheries Management Authority's 'Lawful Pursuit' of the Precautionary Principle" (2001) 7 The Australasian Journal of Natural Resources Law and Policy 95 at 127-129
87. Peterson D, Precaution: Principles and Practice in Australian Environmental and Natural Resource Management (Productivity Commission Presidential Address, 50th Annual Australian Agricultural and Resource Economics Society Conference, Manly, NSW, 8-10 February 2006) p 22, http://www.pc.gov.au/research/conference-papers/precaution viewed 11 February 2009
88. Weier A and Loke P, Precaution and the Precautionary Principle: Two Australian Case Studies (Productivity Commission Staff Working Paper, September 2007) pp 33-42, http://www.pc.gov.au/research/staffworkingpaper/precautionaryprinciple viewed 11 February 2009.
89. Re And Jombi and Minister for the Environment & Heritage [2004] AATA 1380 at [48].
90. Re Wildlife Protection Association of Australia Inc and Minister for the Environment & Heritage (2003) 73 ALD 446; [2003] AATA 236 at [95].
91. Re Wildlife Protection Association of Australia Inc and Minister for the Environment & Heritage [2006] AATA 953 at [4];
92. Re Wildlife Protection Association of Australia Inc and Minister for the Environment, Heritage & the Arts [2008] AATA 717 at [3].
93. Re Nature Conservation Council of NSW Inc and Minister for Environment & Water Resources [2007] AATA 1876 at [134].
94. Re Nature Conservation Council of NSW Inc and Minister for Environment & Water Resources [2007] AATA 1876 at [141].
95. The Environmental Defender's Office criticised the tribunal's decision as "disappointing because they have found it too hard to take the necessary steps, however small to help the grey nurse shark population": Ruddock K and Wood J, The Grey Nurse Sharks Case (Case note, Environmental Defender's Office NSW) p 4, http://www.edo.org.au/edonsw/site/pdf/casesum/summary_greynurse_aat071023%20.pdf viewed 11 February 2009.
96. Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss 206A, 221A, 243A, 263A, 303GJ, 473. See also the AAT Jurisdiction List, n 27.
97. Environment and Heritage Legislation Amendment Act (No 1) 2006 (Cth). These amendments came into force on 19 February 2007.
98. For example, the Kangaroo Protection Coalition noted that it was unlikely that a declaration of an approved kangaroo management plan would be made by a delegate of the Minister: Kangaroo Protection Coalition, Last AAT Appeal (Kangamail 23, Kangaroo Archives), http://www.kangaroo-protection-coalition.com/kangaroo-archives23.html viewed 11 February 2009.
99. See, for example, McGrath C, Letter to the Senate Standing Committee on the Environment, Communications and the Arts (19 September 2008), http://www.aph.gov.au/senate/committee/eca_ctte/epbc_act/submissions/sub38.pdf viewed 11 February 2009; Australian Network of Environmental Defender's Offices, Letter to the Minister for the Environment (5 March 2008), <url>http://www.edo.org.au/policy/policy.html</url> viewed 11 February 2009; Nature Conservation Council of New South Wales, Letter to Senate Standing Committee on Environment, Communications and the Arts (17 September 2008), <url>http://www.nccnsw.org.au/</url> index.php?option=com_content&task=view&id=2521&Itemid=946 viewed 11 February 2009.
100. Evidence of the Environment Department, in Australia, Senate, "Environment and Heritage Legislation Amendment Bill (No 1) 2006 (Cth)", Democrats Minority Report (2006) p 5, http://www.aph.gov.au/Senate/committee/ecita_ctte/completed_inquiries/2004-07/environment_heritage/report/d03.htm viewed 11 February 2009.
101. Administrative Review Council, What Decisions should be Subject to Merits Review? (July 1999).
102. ARC, n 93, p 29 at [5.20]-[5.21].
103. Administrative Appeals Tribunal Act 1975 (Cth), s 23B.
104. See Australia, Senate, "Environment and Heritage Legislation Amendment Bill (No 1) 2006 (Cth)", Minority Report by Labor and Australian Greens Senators (2006) at [1.31], http://www.aph.gov.au/Senate/committee/ecita_ctte/completed_inquiries/2004-07/environment_heritage/report/d01.htm viewed 11 February 2009; and Democrats Minority Report, n 92, p 6.
105. See, for example, Democrats Minority Report, n 92, pp 5-6.
106. Bartlett A, Bartlett's Blog - Environment and Heritage Legislation Amendment Bill (No 1) 2006 (29 November 2006) p 2, http://www.andrewbartlett.com/?p=6948 viewed 11 February 2009 - reviews were previously available under the Wildlife Protection (Regulation of Exports and Imports) Act 1982 (Cth).
107. See cases at n 42, n 43 and n 44.
108. ARC, n 93, p 16 at [4.22]-[4.43]. It is unlikely that wildlife permit decisions would fall under this exception.
109. ARC, n 93, p 17 at [4.27]-[4.29]. This mechanism was also proposed in the ARC's Report No 36, n 37, pp 22-25 at [3.11]-[3.24].
110. Pain, n 60, p 156.
111. Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 68.
112. Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 75.
113. The assessment methods provided for in Pt 8 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) include: referral information, preliminary documentation, public environment reports, environmental impact statement and inquiry (Divs 3A, 4, 5, 6 and 7 respectively). Assessment may also be carried out under a bilateral agreement under Pt 5 of the Act, if one is in force.
114. Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 133.
115. Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 134.
116. Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 77A.
117. Ogle G, "Can't See the Forests for the Pulp Mill", ABC News Opinion (30 June 2008), http://www.abc.net.au/news/stories/2008/06/30/2289278.htm viewed 11 February 2009.
118. McGrath, n 91, p 2; Nature Conservation Council of New South Wales, n 91; Australian Network of Environmental Defender's Offices, n 91; McGrath C, Review of the EPBC Act (Paper prepared for the 2006 Australian State of the Environment Committee, Department of the Environment and Heritage, 2006) p 15, http://www.environment.gov.au/soe/2006/publications/emerging/epbc-act/index.html viewed 17 February 2009.
119. See Bates, n 1, pp 297-298, 114.
120. ARC, n 93, p 12 at [4.3]-[4.7].
121. The ARC came to similar conclusions in Report No 36, n 37, pp 17-18 at [2.47]-[2.51].
122. ARC, n 93, p 23 at [4.52]-[4.55].
123. Under Pt 8, Div 7 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth).
124. ARC, n 37, pp 26-33 at [3.29]-[3.48].
125. McGrath, n 4 at 354.
126. For example, Mrs Vale speaks of the Bill ensuring "greater certainty and efficiency for industry": Australia, House of Representatives, Debates (29 June 1999) p 7814, http://www.aph.gov.au/hansard/index.htm viewed 11 February 2009. This was recognised by the Federal Court in The Wilderness Society Inc v Hon Malcolm Turnbull, Minister for the Environment & Water Resources [2007] FCAFC 175, which noted the "preoccupation...[with] efficient and timely decision-making in the assessment and approval process" (at [83]).
127. Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 3(2)(d).
128. Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 3(1)(a), see also the Act's title.
129. McGrath, n 4 at 354: "If good decision-making is the objective, rather than merely a speedy decision, then merits review is attractive."