A WAVY LINE IN THE SAND: BOND AND
JURISDICTIONAL ISSUES IN JUDICIAL AND
ADMINISTRATIVE REVIEW
Robin Creyke* and Graeme Hill**
I
INTRODUCTION
Executive accountability is the central concern of administrative law and
accountability, in administrative law terms, is achieved principally by a system of
judicial and tribunal review of administrative decision-making. The ease with which
citizens can approach courts and tribunals for review of government action, therefore,
becomes an accountability issue. In turn, that raises the question of the tests for
standing and any other jurisdictional gateways to review. This article is not concerned
with issues of standing and whether a person is "aggrieved"l. However, it will discuss
the jurisdictional tests which must be satisfied in order to obtain review by the Federal
Court (generally referred to as "judicial review") and the Commonwealth
Administrative Appeals Tribunal (AAT/Tribunal) (generally referred to as
"administrative review"). The statutory tests are designed to determine the point in the
decision-making process at which judicial and administrative review is permissible.
The underlying hypothesis is that the jurisdictional tests have been devised to strike a
balance between protecting the rights of individuals affected by government decisions
while preserving efficient administration.
For the Federal administration, the jurisdictional hurdles are found in the
Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and in the
Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The ADJR Act requires an
applicant to show that review is being sought of a "decision of an administrative
character made ... under an enactment", or of a preliminary "report or
recommendation",2 or of "conduct engaged in for the purpose of making a decision".3
The AAT, the highest administrative review body, can exercise administrative review
1
2
3
LLB (Hons) (UWA), LLM (ANU). Robin Creyke is a senior lecturer in law at the Law
Faculty, Australian National University.
BA LLB (Hons) (ANU). Graeme Hill has worked in the Office of General Counsel,
Commonwealth Attorney-General's Department and is presently an associate to Justice
Haynes, High Court of Australia.
ADJR Act, ss 3(4), 5, 6.
ADJR Act, ss 3(1), (3),5.
ADJR Act, s 6(1).
16
Federal Law Review
Volume 26
over a "decision" which is made "under an enactment".4 The meaning given to these
expressions largely determines the scope of the jurisdiction conferred by these two
Acts, the principal avenues for review in the federal system.
Authoritative guidance on the interpretation of those ex~ressions was provided by
the High Court in Australian Broadcasting Tribunal v Bond. That decision has had a
profound impact on the judicial and administrative review jurisdictions of the Federal
Court and the AAT respectively. In Bond, the High Court examined the meaning of
both "decision" and "conduct" in the ADJR Act. Since "decision" is defined in similar
terms in the AAT Act,6 the Bond ruling is relevant to the administrative review
jurisdiction also. However, the AAT lacks the complementary jurisdictional entry
points that are available under the ADJR Act, namely, the definition of "conduct" and
the extension of the definition of "decision" to include preliminary reports or
recommendations required by statute. The implication of that difference will be
considered in the final part of this article. The central focus of this article is the
difficulties which have arisen from applying the Bond interpretation of "decision" and
"conduct". These difficulties suggest that the meaning of those terms may need to be
revisited.
The road to Bond
The ADJR Act was designed primarily to simplify the procedures for reviewin~
government action,7 procedures which were so complex as to obstruct judicial review.
The purpose of the Act was to "establish a single simple form ... for judicial review of
Commonwealth administrative actions".9 Nevertheless, with some exceptions,10 the
4
5
6
7
8
9
10
AAT Act, ss 3(1), (3), 25(4).
(1990) 170 CLR 321.
ADJR Act, s 3(1), (2); AAT Act, ss 3(3), 25.
Second Reading Speech by the Attorney-General (Mr Ellicott), H Reps Deb 1977, No 105 at
1394.
The Attorney-General commented that existing administrative law procedures "could be
said to be medieval": ibid at 1395.
Ibid at 1394.
There were two principal statutory extensions of the common law: a reviewable decision
was deemed to include preliminary or preparatory reports or recommendations required
by statute before a decision is made (ADJR Act, s 3(3), but see also s 3(2) and (5»; and
review was generally not dependent on who exercised the power (Commonwealth
Administrative Review Committee: Report, August 1971, Parliamentary Paper No 144 (Kerr
Committee Report) para 265). Consistent with the common law position at the time, s 3(1)
expressly excludes decisions of the Governor-General, an exclusion now overtaken by the
common law (Re Toohey; Ex parte Northern Land Council (1981) 151 CLR 170; FAI Insurances
v Winneke (1982) 151 CLR 342; Council of Civil Service Unions v Minister for the Civil Service
[1985] 1 AC 374; Minister for Arts Heritage and the Environment v Peko-Wallsend Ltd (1987) 75
ALR 218; Macrae v Attorney-General for New South Wales (1987) 9 NSWLR 268). The extent of
the exclusion of vice-regal decisions is now uncertain and the Administrative Review
Council (ARC) has recommended that the exclusion be removed (ARC Report No 32
Review of the Administrative Decisions (Judicial Review) Act: The Ambit of the Act (1989)
recommendation 2 at p x). At the same time, statutory exemptions were introduced in
Schedule 1, partly in response to recommendations of the Ellicott Committee that certain
decisions of Ministers be excluded (Prerogative Writ Procedures Report of Committee of Review
Parliamentary Papers No 56 (Ellicott Committee Report) paras 22, 27, 31, 32, 50-51). The
1998
A Wavy Line in the Sand
17
ADJR Act was intended to reflect the existing common law position. Hence, the
jurisdictional requirements were deliberately left undefined in order to reflect
emerging changes in the common law and to continue to attract new areas of
jurisdiction. 11 Most early interpreters of the Act were sensitive to these goals and those
who challenged government action were generally not defeated by preliminary
jurisdictional questions. 12
This initial approach to the interpretation of the jurisdictional tests was exemplified
by the decision of the Full Court of the Federal Court in Lamb v Moss.13 After a careful
analysis of the issues the Court concluded that:
there is no limitation, implied or otherwise, which restricts the class of decisions which
may be reviewed to decisions which finally determine rights or obligations or which may
be said to have an ultimate and operative effect. Such a conclusion, is, in our o~inion, in
accordance with the plain legislative intention revealed by the words of the Act. 4
The Court suggested that any problems arising from this generous reading of the
legislation could be handled by the liberal exercise of its discretion to control
premature proceedings and by accepting that in criminal processes, like committal
proceedings, the discretion should be exercised only in exceptional circumstances. 15
The Lamb v Moss approach meant that an opinion, or an intermediate determination
other than those covered in the ADJR Act s 3(3),16 could be subject to judicial review. 17
However, there were other views. So, for example, in Riordan v Parole Board of the
ACT18 and in Roberts v Garrett19 the Federal Court had concluded that interim decisions
were not subject to review under the ADJR Act because they did not amount to a
"decision".
The advantage of the Lamb v Moss interpretation is that, absent other jurisdictional
stumbling blocks, the Court is able to consider the substantive dispute and resolve the
matter without becoming enmeshed in technical questions of justiciability.20 The
corresponding disadvantage, at least for the government, is that executive action at an
early stage may be exposed to judicial review. Such challenges may hinder and prolong
11
12
13
14
15
16
17
18
19
20
ARC recommended that the exclusions in Schedule 1 of the ADJR Act be largely removed
(ARC Report No 32, recommendations 3-12 at pp x-xi); other commentators have gone
further and recommended complete excision of these statutory exclusions on the ground
that the decisions are reviewable in any event at common law (D C Pearce, Commonwealth
Administrative Law (1986) para 323).
Cf Bond (1990) 170 CLR 321 at 335 per Mason CJ. The Full Court of the Federal Court in
Lamb v Moss (1983) 49 ALR 533 noted at 550: "Notwithstanding the particularity with
which those grounds [in the ADJR Act] are stated, no narrow or restricted view of the
operation of the Act is warranted. Its broad purpose was to invest this court with
jurisdiction to supervise administrative action in the Commonwealth sphere in all its
aspects."
For example, Lamb v Moss (1983) 49 ALR 533.
(1983) 49 ALR 533.
Ibid at 556.
Ibid at 546-551.
Discussed below at Preliminary reports or recommendations.
ARC Report, above n 10 para 386.
(1981) 34 ALR 322.
(1982) 40 ALR 311.
ARC Report, above n 10 para 387.
18
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Volume 26
the decision-making process21 and lead to depletion of legal aid funds in premature or
unmeritorious actions. Choice of which public interest to promote - administrative
efficiency or the protection of private rights - determines whether the narrow or the
broader definition should be adopted.
The protection of private rights apparently recommended itself to the
Administrative Review Council. In its 1989 report on the ambit of the ADJR Act, the
Council expressed satisfaction with the rosition reached in Lamb v Moss and
recommended that "[l]egislative reform of this aspect of the Act now appears
unnecessary".22 Nevertheless, ten years after the introduction of the ADJR Act, the
High Court in Bond reversed the more expansive approach to jurisdictional questions,
signalling their intention by deliberately using the very words rejected in Lamb v Moss
as the basis for the new test for "decision".23
The issue arose in a challenge to the fitness to hold a television licence of Alan Bond
and of companies in which Bond was a substantial shareholder. By reason of his
shareholding Bond was able to determine the composition of the boards of directors of
these companies. The challenge to the companies' ability to be licensees was made
under the Broadcasting and Television Act 1942 (Cth), s 88(2)(b)(i). The principal
ground was that since Bond was not a fit and proper person to be a licensee neither
were the licensee companies in which he had a controlling interest. Following an
inquiry by the Australian Broadcasting Tribunal (ABT), which had made findings
adverse to Bond and the Bond companies, an action was brought by them against the
ABT in the original jurisdiction of the Full Court of the Federal Court. The Full Court
upheld the application in part. The ABT appealed and Bond and the Bond group
sought special leave to cross appeal. The appeal was upheld and the special leave
application was denied. Arguments by Bond and the Bond companies were that a
number of the findings or rulings of the Court were not "decisions" under the ADJR
Act but were sim~ly part of the chain of reasoning that led to the decision to grant a
television licence. 4
Drawing on standard principles of interpretation, which, he said, coincided with the
paramount policy considerations,25 Mason Cl, for the majority,26 concluded that to be a
"decision" the activity must be "final or operative" and "determinative ... of the issue of
21
22
23
24
25
26
Bond (1990) 170 CLR 321 at 336-37 per Mason CJ.
ARC Report, above n 10 para 387.
The restriction imposed by the Court may have reflected thinking apparent in the ARC
Report (above n 10) published less than a year earlier, one theme of which was that review
should be limited when alternative remedies were available or when the matter was nonjusticiable (ARC Report at ix, Chs 8-9, App 3: Administrative Decisions Oudicial Review)
Amendment Bill 1987). It may also have reflected a desire on the part of the High Court to
restrict the growth in this jurisdiction.
Bond (1990)170 CLR 321 at 333-34.
Ibid at 335-338 per Mason CJ for the majority.
Mason CJ, Brennan and Deane JJ. Toohey and Gaudron JJ in a separate judgment
concurred in the outcome and with the majority's views on review of findings of fact (ibid
at 386) but disagreed that "decision" should be confined to substantive exercises of power
and that "conduct" should be restricted to matters of procedure (ibid at 376, 378-79).
1998
A Wavy Line in the Sand
19
fact", 27 and must be substantive in character. 28 "Conduct" was defined to complement
the meaning of decision and covered activity which was "essentially procedural".29
Allied requirements were that a reviewable decision must be required or authorised by
statute30 and must impact on rights or interests. 31 Hence, a step in the reasoning was
not a "decision" unless the step was expressly provided for by statute. 32 That did not
mean that other "antecedent conclusions" 33 could not be reviewed, but they could only
be challenged once the final decision was made.
The effect of these conclusions is to limit judicial review to decisions which possess
a quality of finality or ripeness. 34 As Mason CJ commented, to find otherwise would
"lead to a fragmentation of the process of administrative decision-making and set at
risk the efficiency of the administrative process".35 The cost, however, has been to
create inevitable gaps in the Courts' jurisdiction, an outcome which could have been
avoided had the majority been prepared to accept that there was overlap between the
meaning of "decision" and "conduct" and that this should be tolerated in order to
further the citizen's ability to challenge government action.
The narrower definition of "decision" has also resulted in an increased focus on
review of "conduct" since, by default, that is now the principal method of reviewing
preliminary steps in decision-making. The ADJR Act defines conduct as including "the
doing of any act or thing preparatory to the making of a decision, including the taking
of evidence or the holding of an inquiry or investigation".36 The examples of conduct in
the definition sUPEort the finding in Bond that reviewable conduct was confined to
matters of process. 37 Restricting conduct to procedural matters is also consistent with
the extended definition of "decision"38 in s 3(3) of the ADJR Act which covers
preliminary reports or recommendations required by statute, since these will generally
involve conclusions on matters of substance.
One consequence of the Bond interpretation of "conduct", however, is that it creates
gaps in the ADJR Act review powers of the Federal Court since reports or
recommendations which are not authorised by statute, albeit they may impact on
27
28
29
30
31
32
33
34
35
36
37
38
Use of the term "operative" reflects the fact that intermediate findings, provided they are
required by legislation, are also reviewable (ibid at 337).
Ibid.
Ibid at 337-38. The distinction between substantive claims and matters of procedure is
discussed below at "Substantive" decision.
Ibid at 336. See also ADJR Act, ss 3(1), 3A.
Bond (1990) 170 CLR 321 at 336.
Ibid.
Ibid at 338.
The rationale for the United States "ripeness" doctrine is, as described by Professor Bernard
Schwartz in words which could equally apply in this country: "to prevent the courts,
through avoidance of premature adjudication, from entangling themselves in abstract
disagreements over administrative policies, and also to protect the agencies from judicial
interference until an administrative decision has been formalized and its effects felt in a
concrete way by the challenging parties" (B Schwartz, Administrative Law (1976) at 515).
Bond (1990) 170 CLR 321 at 337.
ADJR Act, s 3(5).
Bond (1990) 170 CLR 321 at 342; confirming Chan Yee Kin v Minister for Immigration and
Ethnic Affairs (1989) 169 CLR 379.
ADJR Act, s 3(3).
20
Federal La1,{) RevieuJ
Volume 26
individual interests, are beyond the Court's jurisdiction. 39 Nonetheless, since
preliminary reports and recommendations required by statute are reviewable as
decisions, and undertaking inquiries and the taking of evidence are reviewable as
conduct, there is greater scope for review of preliminary matters than appears at first
sight. The effective limiting factor is that these steps are only amenable to review if
they impact on rights or other interests. 40
The distinction made by the majority judgment in Bond between matters of
substance, matters of procedure, and steps along the way in the decision-making
process is also far from clear-cut. The confusion in the subsequent case law vindicates
the doubts expressed on that score by Toohey and Gaudron JJ, the minority in Bond
who declined to endorse the substantive/procedure dichotomy.41 The jurisdictional
niceties introduced by Bond are also out of step with the rationale for the statutory
codification of federal judicial review and, as will be apparent, have reintroduced
technical issues at the jurisdictional stage which were never intended by the architects
of the system.
JUDICIAL REVIEW AND JURISDICTIONAL QUESTIONS
Questions of construction of enabling statutes like the ADJR Act are rarely solved at the
one time. In the continuing solution of such problems usually there is a history of
development and sometimes of change. Bearing this in mind, in our opinion ... the
meaning and ambit of ... expression[s] ... must be determined progressively in each case
as particular questions arise. 42
"Final or operative" decision
It is fair to say that the majority's interpretation of "decision" in Bond has created fewer
difficulties than their views of "conduct". Nevertheless, issues remain even in relation
to the meaning of "decision". The first concerns whether advice or opinion, and
preliminary or intermediate steps in the decision-making process, qualify as a final or
operative determination. A final or operative decision is "a determination which
effectively disposes of the matter in hand".43 An analysis of the cases against a
39
40
41
42
43
Mason CJ acknowledged this effect when he said that to hold that "conduct" could be used
to review unreviewable decisions would be "strange indeed" (Bond (1990) 170 CLR 321 at
342). A consequence is that applicants should bring a common law action simultaneously
with an action under the ADJR Act relying on the Federal Court Rules, rule 54A, as the
common law luay have a wider scope of review in this area. (P Baker, "Caveat - for
administrative law practitioners" (1990) 64 Law Institute Journal 1155 at 1157).
Evans v Frienlann (1981) 35 ALR 428 at 431 per Fox ACJ who noted, in this early comment
on the meaning of "decision" that the word must encompass "something of significance
which is reasonably definite, which is final and conclusive for immediate purposes at least,
which is manifested in some way, which emanates from an authoritative or responsible
source, and which materially affects another person or persons" (emphasis added). This aspect
of "decision" has been generally accepted.
Bond (1990) 170 CLR 321 at 373-79 per Toohey and Gaudron JJ.
Chittick v Ackland (1984) 6 ALD 255 at 264 per Lockhart and Morling JJ.
Bond (1990) 170 CLR 321 at 335. See also Lamb v Moss (1983) 49 ALR 533 at 552; DirectorGeneral of Social Services v Chaney (1980) 31 ALR 571 at 590.
1998
A Wavy Line in the Sand
21
background of the multiple stages in the administrative decision-making process
illustrates the jurisdictional law Bond has introduced on these matters.
Stages in decision-making
Although the rationale for restricting review to final or operative decisions may be
understandable - "Parliament could not have intended the Judicial Review Act to be a
vehicle for judicial review of every decision of a decision-maker under a
Commonwealth enactment" 44 - drawing the line between a preliminary step which
may have the requisite qualities outlined by Mason CJ and one which does not will
frequently be difficult. Decision-making starts by identifying a problem and ends with
action to resolve the problem. The process of reaching a solution encompasses the
collection and marshalling of facts and information; the clarification of goals; the
holding of inquiries; coming to conclusions about preliminary matters; forming an
opinion; reaching an intellectual as opposed to a documented conclusion on the final
issue; making reports and recommendations leading to a decision; overt acts based on
the intellectual conclusion; and the ultimate or operative determination or decision. 45
Clearly on the one side are thought processes,46 and expressions of opinion47
(including confirmatory opinions from superiors);48 while on the other are the actual
manifestations of those processes or opinions in the form of action,49 or "some
announced or published ruling or adjudication".50 The requirement that there be an
44
45
46
47
48
49
50
Edelsten v Health Insurance Commission (1990) 96 ALR 673 at 682 per Northrop and
Lockhart JJ. That same concern was expressed by Mason CJ for the majority in Bond in
order to avoid "fragmentation of the processes of administrative decision-making and [to]
set at risk the efficiency of the administrative process": (1990) 170 CLR 321 at 337.
In pre-Bond times, frequent references were made to the description of a decision given by
Deane J in Director-General of Social Services v Chaney (1980) 31 ALR 571 at 590: "The word
'decision' is a word of indeterminate meaning. In some contexts, it can refer to the mental
process of making up one's mind. In the context of judicial or administrative proceedings,
the word will ordinarily refer to an announced or published ruling or adjudication. In such
a context, the word 'decision' may be apt to include the determination of any question of
substance or procedure, including, for example, rulings on procedural questions such as
whether particular evidence should be received, or the meaning of the word may be
limited to a determination effectively resolving an actual substantive issue. When the word
'decision' has the last-mentioned meaning, it can refer to any such determination whether
final or intermediate (see, eg Registrar ofWorkers , Compensation Commission v FAI Insurances
Ltd [1977] 1 NSWLR 422 at 448) or be limited to referring only to a determination which
effectively disposes of the matter in hand (see, eg Winter v Winter [1933] NZLR 289 at 295;
Penniel v Driffill [1980] WAR 30 at 32)."
Ricegrowers Cooperative Mills Ltd v Bannerman (1981) 38 ALR 535 at 544 per Northrop J.
Pegasus Leasing Ltd v Federal Commissioner of Taxation (1992) 104 ALR 442; Little River
Goldfields NL v Moulds (1991) 32 FCR 456; Riordan v Parole Board of the ACT (1981) 3 ALD
144.
Whim Creek Consolidated (NL) v Colgan (1991) 31 FCR 469 (seeking confirmation from
superiors of a belief that goods were liable to seizure and support for the proposal to seize
goods was not a decision).
Whim Creek Consolidated NL v Colgan (1991) 31 FeR 469.
Legal AId Commission ofWA v Edwards (1981) 4 ALD 598 at 600; 61 ALR 419 at 422; Northern
Territory v Land (1995) 39 ALD 527 at 544; Director-General of Social Services v Chaney (1980) 3
22
Federal Law RevieuJ
Volume 26
overt manifestation of the mental resolution ties in with the need for some impact on a
person's interests or expectations. 51 Although the notion of finality from Bond helps
identify what is a "decision", the Bond concept of "operative action" is of little assistance
in deciding whether action falls on one side of the line or the other.
Controversial decisions which some would argue have transgressed the line
include, first, Seventh Mingcourt Pty Ltd v Lawrence,52 in which the Minister was treated
as having made a reviewable decision since she purported, on several occasions, to
have done so; and second, the decision by Drummond Jin Tasmanian Conservation Trust
v Minister for Resources,53 to review an 'in-principle' approval by the government for the
export of 200,000 tonnes of woodchips.
Determining where the line should be drawn is never easy. An illustration is used
from an application to the AAT - Re Distilled Spirits Industry Council of Aust Inc and
National Food Authority54 - since the issue is ostensibly the same in both administrative
and judicial review. In order for the National Food Authority (NFA)55 to introduce a
new food standard or to vary an existing standard the following steps are required by
statute:
1 an application must be made to the NFA: National Food Authority Act 1991
(Cth) (NFA Act), s 12;
2 the NFA makes a preliminary assessment and must accept or reject the
application and notify an applicant accordingly: NFA Act, s 13;
3 if it accepts the application the NFA must notify the relevant agencies, advertise
that it is undertaking an assessment, and call for written submissions: NFA Act,
s 14;
4 the NFA must make a full assessment of the application and then either prepare
a draft standard or draft variation, notify those concerned of an inquiry and
invite submissions: NFA Act, s 15;
51
51
52
53
54
55
ALD 161; 31 ALR 571 at 590; Secretary, Department of Social Security v Alvaro (1994) 34 ALD
72.
Evans v Friemann (1981) 35 ALR 428 at 431; Baker v Campbell (1982) 44 ALR 431 (decision of
a police officer to request issue of a search warrant was not a decision); cf Salerno v National
Crime Authority (1997) 144 ALR 709 (the authorisation to enter and search a property was a
"decision" since it directed action which would materially affect rights to quiet enjoyment).
(1990) 96 ALR 673.
(1996) 40 ALD 603.
(1996) 40 ALD 271. See also Tasmanian Conservation Trust v Minister for Resources (1996) 135
ALR 338 at 350 per Davies J. The view of Drummond J and Davies J exposes what the
authors argue is the legally correct, but administratively unrealistic, approach adopted by
Sackville J in Tasmania Conservation Trust v Minister for Resources (1995) 127 ALR 580 at 611
who found that the "in principle" decision could amount to neither "decision" nor
"conduct".
(1994) 34 ALD 629.
The Act and the Authority have recently been renamed. The Act, which was passed in
1991, established the Australia New Zealand Food Authority. The title it bore at the time
the case was decided will be used for the purposes of this discussion.
1998
A Wavy Line in the Sand
23
5 if the application is rejected, reasons must be given, the applicant and all those
interested must be notified and the outcome must be advertised: NFA Act, ss 15,
17;
6 after the inquiry, the NFA must recommend to the National Food Authority
Council (Council) that the draft standard or draft variation be adopted with or
without amendment or must recommend that it be rejected: NFA Act, s 18;
7 the recommendation to the Council must be advertised: NFA Act, ss 19; and
8 the Council must either accept, amend or reject the recommendation: NFA Act, s
20.
The applicants had applied to vary a standard in relation to the labelling of wine and
wine cocktail products. The NFA responded by letter saying: "The authority has
decided ... that there is no justification for imposing additional labelling requirements".
The NFA denied this was a rejection of the application and, therefore, reviewable. The
Tribunal disagreed. The statement in the letter was more than an opinion, it was not
merely a step along the way to a decision, and it amounted to a final and substantive
resolution of the issue before it.
The NFA determination had been made at the fourth (section 15) step of the process
and was found to be a decision and subject to review. Would that also have been the
outcome, had the applicants brought their action after the second, preliminary
assessment step? In decision-making processes like this one, with itemisation of each
step, choice of the stage at which to challenge the decision is crucial. Too early an
application may encounter a response that the application is premature. Decisionmaking processes such as these may prove a trap for even the most careful litigant.
Status of advice or opinion
The reviewability of advice or opinion is the area in which the tests in Bond appear to
be least satisfactory. This is illustrated by Deloitte Touche Tohmatsu v Australian Securities
Commission, 56 in which the outcome was unfavourable for Deloittes. The case
concerned a challenge to the commencement of proceedings under s 50 of the
Australian Securities Commission Law. Section 50 enabled the Australian Securities
Commission (ASC) to begin and carryon proceedings in another's name for the
recovery of damages for fraud, negligence or breach of duty on the basis that it
appeared to be in the public interest to do so. The ASC had agreed that proceedings
could be commenced against the applicants, the former auditors of Adelaide Steamship
Co Ltd, with respect to a final dividend paid to shareholders in 1990. Lindgren J found
that the requirement in s 50, that it "appears" to the ASC to be in the public interest to
commence proceedings, was not reviewable because it involved the ASC forming an
opinion and hence was a distinct step prior to the decision to commence proceedings.
The applicants had, therefore, committed a tactical error in challenging the formation
of the opinion rather than the actual decision. Although this finding appears to be in
line with the interpretation of "decision" in Bond, it fails to take account of the
commercial realities of the impact of the section 50 process and the potential it has to
56
(1994) 35 ALD 519. This was only one offour cases in this saga.
24
Federal Lau' Review
Volume 26
damage reputation. 57 Moreover, to send the parties away to redraft the application so
as to challenge the actual decision would seem to be futile.
Similarly technical reasoning appeared in Re Excel Finance Corporation Ltd. 58 Here
the ASC authorised an application to the Federal Court for an order under the
Corporations Law that an auditor of a company in receivership attend for examination.
The authorisation was found to be a decision, but earlier decisions in an advice letter
from the ASC - that it did not object to the examination and that it refused to
reconsider its earlier decision to authorise the receiver to seek the order - were not.
The sophistication of the argument in cases such as these tends to discredit the
distinctions made in Bond. The fact that Lindgren J in Deloitte Touche Tohmatsu v
Australian Securities Commission went on to make findings in the case, despite his
conclusion that the application did not attract the jurisdiction of the Court, suggests he
may have anticipated this criticism.
There are other examples from the case law. In Pegasus Leasing v Federal
Commissioner of Taxation,59 Pegasus sought advice from the Commissioner on the tax
implications of a scheme operated by the taxpayer. The Commissioner informed
Pegasus orally that certain payments were not deductible. O'Loughlin J held that this
communication was not a "decision" as it was an opinion or a statement of policy and
did not have the requisite quality of finality. The consequence was that the taxpayer
was less able to attract investor interest in the scheme since Pegasus was unable to give
assurances about its tax implications. 60 Similar conclusions in relation to forming an
opinion have been reached in other cases and are discussed later. 61
The justification for the finding in Pegasus Leasing is that challenges to a final or
operative decision, as Mason CJ pointed out in Bond, expose for consideration the
opinions or policy on which the decision was based. 62 Although there are many
instances in which this response is appropriate, it is no answer to the problem
identified in Pegasus, namely, the need to reassure potential investors prior to their
making an investment. Nor does it counter the argument that expense could have been
spared had review been available at the point at which the requisite opinion was
reached rather than later in the process.
By contrast, in Independent Holdings Ltd v Deputy Commissioner of Taxation,63 a letter
written to the taxpayer company advising that the company was liable to pay the
accrued tax liability of the entity it had replaced - a cooperative - was found to be a
decision. Spender J, while affirming that Bond does not limit judicial review to
appealing a final decision, noted that to fall within the alternative, operative category a
57
58
59
60
61
62
63
For example, see North J in Avram v Australian Securities Commission, reported in Australian
Financial Review, 20 November 1996 at 3.
(1993) 113 ALR 543.
(1991) 104 ALR 442.
D O'Brien, "Judicial review of Commonwealth administrative action: some recent
developments" (1992) 30 Admin Review 2 at 12.
Deloitte Touche Tohmatsu v Australian Securities Commission (1994) 35 ALD 519; Dhillon v
Minister for Immigration, Local Government and Ethnic Affairs (1994) 32 ALD 757; Riordan v
Parole Board of the ACT (1981) 3 ALD 144.
Bond (1990) 170 CLR 321 at 338.
(1992) 110 ALR 642.
1998
A Wavy Line in the Sand
25
decision must conclusively determine an issue in the proceeding. 64 In the result, the
notification was unreviewable because the facts fell within Schedule l(e) of the ADJR
Act which excludes from review decisions which form part of a tax assessment.
Nonetheless, the conclusion which can be drawn from these two decisions is that it is
hard to obtain review of actions taken in calculating or assessing tax since
administrative steps are likely to be excluded from review either under the ADJR Act
Schedule l(e), or because they do not qualify as a "decision" in Bond terms. 65
Overall, there is a disturbing lack of consistency in the cases in which the activity is
classified as opinion or policy. Moreover, the refusal to review these decisions fails to
take account of individuals' reliance on officials' opinion or advice. The public assumes,
since the advice is given by someone familiar with, if not responsible for, the policy,
that the person must be in a position to explain accurately what it means. Furthermore,
companies and individuals frequently pay government agencies for advice or opinions,
especially on commercial or tax matters, and although they accept that the opinion or
advice is not a formal decision, in the absence of more authoritative information, the
advice is given credence in the commercial world. 66 If Bond dictates this outcome, the
result illustrates line-drawing which fails to be sensitive to commercial realities.
Whether preliminary activity is operative
If the giving of information or advice is not generally reviewable, it follows that other
preliminary activity is even less likely to be caught in the jurisdictional net. However,
the correctness of this assumption depends on whether the preliminary activity is
expressly or impliedly required by legislation. 67 The issue has been raised on more
than one occasion in migration cases. For example, in Somaghi v Minister for
Immigration, Local Government and Ethnic Affairs,68 the question was whether the
applicant should be given a permanent entry permit. The relevant provision of the
Migration Act 1958 (Cth)69 permitted the Minister to grant an entry permit only if the
applicant had a temporary entry permit and was a refugee. A finding on each of these
statutory pre-requisites was a preliminary step to reaching the ultimate decision to
grant a permit. The findings were held to be reviewable because they were statutorily
required. 70
64
65
66
67
68
69
70
Ibid at 647. However, see Clyne v Deputy Commissioner of Taxation (1986) 67 ALR 600 (the
estimation and calculation of provisional tax by taxation officials was a decision).
Compare with Southern Farmers Group v Deputy Commissioner of Taxation (SA) (1989) 92
ALR 317, where the decision to utilise powers under the Income Tax Assessment Act 1936
(Cth) was a reviewable decision. This would now be decided differently, following Bond,
because this decision is not final and operative. Hovlever, a decision of the Commissioner
varying the level of tax instalments which should be deducted was not within ADJR Act,
Sch 1 para (e) and was, therefore reviewable: Coco v Deputy Commissioner of Taxation (1993)
114 ALR 223. See also Deputy Commissioner of Taxation v Clarke & Kann (1984) 1 FCR 322 at
325; 52 ALR 603 at 607.
There may well be other remedies for negligent or misleading advice, but that does not
mean that the advice or opinion can be challenged under the ADJR Act.
Hutchins v Deputy Commissioner of Taxation (1996) 138 ALR 153.
(1991) 102 ALR 339.
Now s 417.
Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 102 ALR 339 at
354-355 per Gummow J; Department of Immigration and Ethnic Affairs v Mayer (1985) 58 ALR
26
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Dhillon v Minister for Immigration, Local Government and Ethnic Affairs71 also involved
an application for permanent residency status. In this case, however, the Court found
that the preliminary activities leading to the decision to deport Dhillon were simply
findings along the way to the making of a decision and were not reviewable as a
"decision".72 There were no statutory pre-conditions to the deportation order which
was a purely discretionary power. 73 However, a ground for exercising the power was
that a person was an illegal entrant. A person became an illegal entrant if the person
had made a false statement in respect of the grant of his or her entry permit. 74 A
departmental official had concluded that Dhillon had made statements which were
false and misleading.
Dhillon had married an Australian resident in Kuala Lumpur and claimed that the
marriage was genuine despite his earlier (and, it subsequently appeared, continuing)
engagement to an Indian citizen, the fact that he had had a child by another woman,
and the fact that his Australian wife became pregnant to someone else in the period
before his arrival in Australia. His assertion of the genuineness of the marriage was
accepted by officials and Dhillon was granted permanent resident status. The day
following the grant of his entry permit, the couple separated and Dhillon subsequently
married his Indian fiancee.
When an order was made for Dhillon's deportation, he challenged the opinion
reached by an official that he had made false or misleading statements in respect of his
permanent entry permit; and that he was an illegal immigrant and hence liable to
deportation. French J, after referring to Naumovska v Minister for Immigration and Ethnic
Affairs,75 a pre-Bond case in which an allegedly false statement concerning the
applicant's marital status was made on an incoming passenger card, noted:
Implicit in the logic underlying the Naumovska case is the proposition that the facts
conditioning the application of s 16 (as it then was) are objective facts not dependent
upon the state of mind of the Minister or his officers. It is a corollary of that proposition
that no administrative decision-making process conditions the existence of those facts.
The formation of an opinion by an officer that a relevant fact exists, although
71
72
73
74
75
695; Re Excel Finance (1993) 113 ALR 543; Harris v Bryce (1993) 113 ALR 726. But cf Heshmati
v Minister for Local Government and Ethnic Affairs (1991) 102 ALR 367 and Minister for
Immigration and Multicultural Affairs v Ozmanian (1996) 141 ALR 322 in which the
determination of whether the applicants had refugee status was characterised by the Full
Court of the Federal Court as "conduct" not "decision" for the purposes of the Migration
Act 1958 (Cth).
(1994) 32 ALD 757.
Nor were the activities "conduct". Cf Nolan v Minister for Immigration, Local Government and
Ethnic Affairs (1988) 80 ALR 561 in which Gray J concluded that the issue of a Notice of
Status could be characterised as a decision, citing Naumovska v Minister for Immigration and
Ethnic Affairs (1982) 41 ALR 635 in support. French J in Dhillon argued that both Nolan and
Naumovska had been overtaken by Bond (Dhillon (1994) 32 ALD 757 at 762).
Migration Act 1958 (Cth), s 6A. This provision governed the grant of an entry permit to
Dhillon at the time of his entry.
Migration Act 1958 (Cth), ss 14(2), 20(2), (12).
(1982) 41 ALR 635.
1998
A Wavy Line in the Sand
27
administratively necessary before the consequential powers such as the power to order
deportation are invoked, is not of itself a decision made under the Act. 76
Applying these principles, his Honour concluded that the process of determining that
Dhillon had made a false statement was not of itself a decision, 77 nor was it conduct. 78
There are two observations to make about this.treatment of preliminary activity in
Dhillon and Naumovska. The first is that whether a particular administrative action is a
statutory precondition or not is frequently a matter of chance. The degree of specificity
of legislation may be a product of the drafting style of the time79 or the vagaries of the
parliamentary timetable rather than any considered view of whether a decision should
be reviewed. Hence, to make reviewability, in Bond terms, dependent on whether the
statute details the administrative steps preceding a final decision is to give too great a
weight to what may be an unintentional omission. The second is that these cases raise
the spectre that in order to minimise the opportunities for review, legislation might
consciously be drafted so as to refer only to a final decision, not to the steps taken in
reaching that conclusion. 80 Although there is no evidence, to date, that this has
occurred such a result would be undesirable because a premium would be placed on
avoiding review rather than on providing for proper decision-making processes.
Other issues
A further criticism of the Bond requirement that decisions be final or operative is that in
some instances this may cause unnecessary expense. Since a decision generally cannot
be reviewed at an interim stage, the decision-making process must continue, with
associated costs to applicants and administrators, until there is a final or operative
decision which can be challenged. In Harris v Bryce,81 an unsuccessful interviewee for a
job (which was awarded to the applicant) complained to the Sex Discrimination
Commissioner, the respondent, that she was refused the position because she was a
woman. The applicant sought judicial review of the respondent's decision to enquire
into the matter. The Court held that the decision to en~uire was not final or operative
because it did not of itself determine anyone's rights. 2 While this is undoubtedly a
correct application of Bond, it does not seem sensible to hold a full inquiry, only for it to
be later overturned by a court due to an error that may have been apparent at an early
stage. 83 At the same time it must be acknowledged that any increased expense caused
by the final or operative requirement must be set off against the costs (including from
delay) which arise when challenges to interim decision-making processes are made.
76
77
78
79
80
81
82
83
Dhillon v Minister for Immigration, Local Government and Ethnic Affairs (1994) 32 ALD 757 at
761.
Ibid at 761.
Ibid at 762.
For example, compare the attention to detail in the Social Security Act 1947 (Cth) with its
successor, the Social Security Act 1991 (Cth).
Compare with Heshmati v MILGEA (1991) 102 ALR 367, which discussed the provision in
the Migration Act 1958 (Cth), ss 6A(1)(c), 6(2) which stated that no "decision" had been
made unless the Minister decided that the person's refugee status had been made "under
an enactment".
(1993) 113 ALR 726.
Harris v Bryce (1993) 113 ALR 726 at 733-4.
It is possible that the step could have been challenged as "conduct" if the proceedings were
tainted. However, that was not raised as an argument.
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Federal Law RevieuJ
Volume 26
Each approach has a comparative efficiency advantage depending on the
circumstances.
Another criticism is that in some circumstances a decision may not be operative
because it does not yet affect legal rights but it may nevertheless have an adverse
practical effect on a person. Hence in Re Secretary, Department of Social Security and
Sinclair,84 the AAT said that a decision of the Department to recover overpayments,
which decision had been communicated to Sinclair, was not reviewable until steps
were taken to recover the money.85 Similarly, in De Sousa v Minister for Immigration,
Local Government and Ethnic Affairs,86 De Sousa could not obtain judicial review of a
finding that she had breached provisions of the Migration Act 1958 (Cth) until moves
were made to deport her. 87 The communication of findings of this kind has a real and
practical effect because the person is likely to seek legal advice and prepare a
defence. 88 Accordingly, it is submitted that these actions should be reviewable at the
stage when the decision is operational, even if it is not yet "operative" or "final".
"Substantive" decision
A further requirement from Bond is that to be reviewable a decision must be
substantive. What that requirement entails was discussed in Australian Wool Testing
Authority v Federal Commissioner of Taxation,89 where a decision to reverse an earlier
communication from the Australian Taxation Office that the Authority did not have to
lodge annual returns was held to be substantive in nature because it deprived the
Authority of the benefit of not lodging returns. 90 In other words, the concept of
, substantiveness was linked to'the Bond requirement that a "decision" must have a real
impact on a person's rights and interests. Substantiveness in this context is contrasted
with matters of procedure. A troubling aspect of this requirement is that there appears
to be an increasing disparity between the ADJR Act gateways and the more relaxed
tests now prevailing in relation to standing, an issue discussed in the next paragraph. It
is ironic that the standard jurisdictional hurdle - standing - should be becoming less
stringent at a time when the specific ADJR Act jurisdictional requirements are being
tightened.
Substantiveness and standing
In Kelson v Fonvard,91 Finn J found that the making and communication to the Minister
by the Merit Protection and Review Agency of a report into alleged workplace
harassment at the Australian War Memorial posed a risk to the reputation of the public
sector managers involved. The risk was of sufficient magnitude to warrant
categorisation of the report as a decision. The' test adopted for the impact on the
managers appeared to be relatively strict and was certainly more demanding than the
84
85
86
87
88
89
90
91
(1992) 25 ALD 17.
Ibid at 24.
(1992) 27 ALD 473.
Ibid at 475-6.
Director-General of Social Services v Hales (1983) 47 ALR 281 at 307 per Lockhart J.
(1990) 96 ALR 756.
Ibid at 763.
(1995) 39 ALD 303.
1998-
A Wavy Line in the Sand
29
"interest affected" requirement now generally adopted for standing. 92 In the context of
this article it is noteworthy that the AAT, too, has found that the test for standing
under the AAT Act is wider than the other jurisdictional hurdles to reviewability by
that Tribunal.93 It seems curious that an applicant has sufficient interest to bring an
action before either the Federal Court under its newly expanded test for standing, or
before the AAT under its wider statutory test, only to be defeated at the next stage
because the action complained of was not a "decision".
Substantiveness and procedural fairness
A potential problem arising out of the requirement that to be substantive a decision
must affect rights and interests is an apparent gap between the interests which attract
procedural fairness and those which satisfy the substantive elements of a "decision".
The problem has particular significance in the commercial world, as two of the
following case illustrate.
In Annetts v McCann 94 and Ainsworth v Criminal Justice Commission,95 the High Court
made it clear that the making of preliminary reports and recommendations_which had
an impact on reputation attracted the rules of procedural fairness. It is true that in both
cases the step was statutorily required and may, therefore, have met the extended
meaning of "decision" under the ADJR Act, s 3(3) which covers preliminary reports and
recommendations required by statute. It is also true that in both cases considerable
public notoriety attached to the proceedings. Nonetheless, preliminary action,
including the production of reports and recommendations, which is not required by
statute, has the same potential to affect an individual's reputation and could, therefore,
give rise to an action for breach of procedural fairness. 96 Yet, according to Bond, such
action does not fall within "decision" or "conduct". In other words, the affected
individual may be jurisdictionally-barred from review while at the same time the
person may have had a substantive cause of action under the ADJR Act. An example is
the Deloitte Touche Tohmatsu case discussed earlier. 97 Again, it seems anomalous for
protection to be accorded in one case, but denied in another, depending on whether the
legislation refers to the action or process.
92
93
94
95
96
97
Onus v Alcoa of Australia Ltd (1981) 149 CLR 27; Australian Conservation Foundation Inc v
Commonwealth (ACF No 2) (1989) 19 ALD 70; North Coast Environment Council Inc v Minister
for Resources (1994) 127 ALR 617; Tasmanian Conservation Trust Inc v Minister for Resources
(1995) 127 ALR 580.
Re Hongkong Bank of Australia and ASC (1992) 26 ALD 307 (upheld on other grounds on
review by the Full Court of the Federal Court (Hongkong Bank of Australia v Australian
Securities Commission (1992) 27 ALD 257).
(1990) 170 CLR 596.
(1992) 175 CLR 564.
North J in Avram v Australian Securities Commission, reported in Australian Financial Review,
20 November 1996 at 3 described the Commission's "power to command attention at an
examination as a mighty power. Not only does it interfere with a citizen's general interest
in privacy and liberty, but it abrogates, albeit to a defined degree, the citizen's right to
remain silent".
See above n 54 and relevant text.
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Self-executing decisions and substantiveness
The requirement that a "decision" be substantive has re-opened the debate as to
whether there is a reviewable decision when the Act dictates the outcome. 98 In Whim
Creek Consolidated (NL) v CoIgan,99 the full Federal Court considered the operation of
the Customs Act 1901 (Cth). The relevant section provided that, in certain statutorilydefined circumstances, goods "shall be forfeited" to the CrownlOO and thereupon an
authorised person was permitted to seize the forfeited goods. 10l The Court held that
forfeiture was not the product of an administrative decision because it occurred
automatically once the statutory preconditions were satisfied. 102 By contrast seizure
was discretionary and required the making of a decision. Hence it was reviewable
under the ADJR Act. 103 Since the impact of the automatic finding that goods were
forfeited did not occur until someone exercised the discretionary power to seize the
goods, the mechanistic nature of the forfeiture process was of little moment in this
case.104 However, that is not always so, as the following cases illustrate.
In Re Dimitrievski and Secretary, Department of Social Security, 105 a computergenerated letter from the Department of Social Security informed the applicant that his
sole parent pension was no longer payable and had automatically been cancelled. 106
The removal of the pension was found not to be reviewable because there was no
decision by a departmental delegate. The argument was upheld by a full panel of the
AAT. The impact of the finding in this case effectively denied the applicant a right of
review. It should be noted, however, that the outcome in Re Dimitrievski led to
legislative amendment of the Social Security Act 1991 (Cth) to restore the right to
review. 107 The amendment suggests that the Department had not intended that the
legislative provision for self-executing decisions - an administrative efficiency
measure - should preclude administrative or judicial review.
The applicants in Whim Creek and Re Dimitrievski were defeated by the Bond
substantiveness requirement for a "decision". What is surprising is that in neither case
was there an attempt to avoid that outcome by relying on an argument based on the
text of the ADJR Act, s 3(1). That section refers to decisions "required to be made ...
(whether in the course of a discretion or not)" (emphasis added). The expression in
98
99
100
101
102
103
104
105
106
107
Sandery v Police Commissioner (1986) 65 ALR 181; Dhillon v Minister for Immigration, Local
Government and Ethnic Affairs (1994) 32 ALD 757; Cf Minister for Immigration and Ethnic
Affairs v Naumovska (1983) 88 ALR 589 at 592 per Fox J, at 596-97 per Franki J, and at 601-02
per Lockhart J.
(1991) 31 FCR 469.
Section 229(1).
Section 203(2).
Whim Creek Consolidated (NL) v Colgan (1991) 31 FCR 469 at 476.
Ibid at 477.
Compare with Re Dhillon and Minister for Immigration, Local Government and Ethnic Affairs
(1994) 32 ALD 757, referred to earlier under Preliminary or non-operative activity.
(1993) 31 ALD 140.
Social Security Act 1991 (Cth), s 60B. The ground for the cancellation was that the person
has been out of Australia for over 12 months. The letter was dispatched on the anniversary
of the person's departure.
Social Security Legislation Amendment Act (No 2) 1992 (Cth), which added s 292A to the
Social Security Act 1991 (Cth) (which by then had replaced the 1947 legislation) deeming
such an automatic notification to be a "decision" for the purposes of review.
1998
A Wavy Line in the Sand
31
parenthesis has, to date, not been the subject of judicial comment. However, any fair
reading of the words suggests that the distinction between a discretionary decision and
one in which the exercise of judgment is non-existent or minimal, was not one on
which the drafters of the ADJR Act intended to rely. The expression in s 3(1) suggests
that the Federal Court is permitted to adopt a generous view of whether the decision
involves the exercise of discretion. The preferable approach is illustrated by Peverill v
Meirl08 in which Burchett J concluded that, even where an Act can be said to dictate the
answer, the decision whether or not the activi~ falls within the statutory criteria is a
"decision" for the purposes of the ADJR Act. 10 If that approach had been applied to
the facts in Whim Creek the determination as to whether the goods satisfied the
statutory preconditions would also have been reviewable. Adopting the Peverill v Meir
view has the added advantage that it avoids an agency having to take the tedious and
lengthy legislative amendment route - as did the Department of Social Security after
Re Dimitrievski - in order to secure effective administrative law review of its decisions.
A case which exemplifies another, less satisfactory, way round this problem is Buck
v Comcare. 110 Buck's compensation payments were suspended because she refused, on
medical advice, to undergo a medical examination. The Safety, Rehabilitation and
Compensation Act 1988 (Cth), s 57(2) permitted suspension when an employee "refuses
or fails, without reasonable excuse, to undergo an examination". The words "without
reasonable excuse" clearly suggest that someone must decide whether an excuse
proffered is reasonable. An exercise of judgment is required. Finn J, nonetheless, found
that the section was self-executing, subject to a threshold condition - the absence of a
reasonable excuse - a matter for determination by Comcare. Finn J concluded,
therefore, that the decision was not reviewable under the ADJR Act. His Honour went
on to find, however, that the importance of such a finding for individuals meant that a
court must be able to decide the matter, a jurisdiction he discerned in the Court's
associated or accrued jurisdiction which permitted the Court to make a declaration of
right. 111 The finding retained the Court's determinative authority, but the
unnecessarily subtle reasoning required to reach that position could have been avoided
had it been accepted that the suspension decision was reviewable under s 3(1) of the
ADJRAct.
Affinnation of a decision and substantiveness
Another issue raised by the Bond substantiveness requirement is whether the
affirmation of a decision is a substantive determination. In Szajntop v Gerber,l12 the
applicant had sought administrative review by the AAT. At the hearing Szajntop
requested an adjournment which was refused. As a consequence he was unable to lead
108
109
110
111
(1990) 95 ALR 401.
Ibid at 421.
(1996) 137 ALR 335.
It is significant that there is an increased reliance by the Federal Court on the associated or
accrued jurisdiction (eg, Post Office Agents Association Ltd v Australian Postal Commission
(1988) 84 ALR 563; Burgundy Royale Investments Pty Ltd v Westpac Banking Corp (1987) 76
ALR 173; New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander
Commission (1995) 131 ALR 559; Langer v Australian Electoral Commission (1996) 136 ALR
141).
112 (1992) 108 ALR 215.
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evidence and the Tribunal affirmed the original decision. On review, the Federal Court
found that the decision to refuse the adjournment was "conduct", rather than a
"decision"113 and that the decision to affirm was also not a "decision". Hill J concluded
that the determination which affected the applicant remained the decision of the
original decision-maker, not that of the Tribunal.114 By contrast, in Barbaro v McPhee,l15
an order by the AAT to reconsider a decision imposed a duty on a decision-maker.
Hence, affirming the original decision was a fresh decision which was reviewable.
In summary, these cases indicate that a decision to affirm will only amount to a
"decision" where there has been an actual reconsideration ~ or an order for
reconsideration,116 not where there is simply an affirmation of the original decision
which remains on foot. However, the decision not to reconsider is reviewablel17
provided there is an obligation to exercise the discretionl18 or an implied or incidental
power to reconsider. 119 These results are understandable from a policy perspective.
Reaching finality in decision-making is desirable and if all requests to reconsider a
decision were reviewable, applicants might be encouraged to prolong the process and
thus avoid necessary appeal time limits. This may be one area in which the line is
drawn appropriately.
Statutory extension of "decision"
Preliminary reports or recommendations
Although the High Court in Bond did not advert in detail to the ADJR Act, s 3(3)120 the statutory extension to the definition of "decision" - any paper examining the
impact of Bond on the jurisdictional requirements under the ADJR Act would be
incomplete without such a discussion. One means of avoiding the requirement that a
decision be final or operative is to rely on s 3(3) under which a preliminary report and
recommendation required by statute is deemed to be a decision. On its face, this
provision makes a considerable inroad on the restrictive interpretation of "decision" in
113
114
115
116
Ibid at 219.
Ibid at 220. See also Re Excel Finance Corporation Ltd (rec and mgr apptd) (1993) 113 ALR 543.
(1982) 42 ALR 147.
ARM Constructions Pty Ltd v Deputy Commissioner of Taxation (1987) 71 ALR 376
(affirmation of earlier decision following review recommending reconsideration was a
decision).
117 Snow v Deputy Commission of Taxation (1986) 70 ALR 672 (disallowance by Deputy
Commissioner of Taxation of objection to assessment was a decision).
118 Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 106 ALR 367
(Olney J found that a refusal by the Minister to consider exercising his residual power
under the Migration Act 1958 (Cth), s 115(5) to award a person an entry permit if their
initial application has been unsuccessful was not reviewable since the Migration Act 1958
(Cth), s 115(10) provides that the Minister is not under a duty to consider whether to
exercise the power under s 115(5».
119 Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 28 ALD 489.
French J found that the power to decide implies an incidental power to reconsider.
However, whether the incidental power exists is a matter of statutory construction and, for
example, it was excluded in Sloane, because of the complex review structure in place. See
also Comptroller-General of Customs v ACI Pet Operations Pty Ltd (1994) 32 ALD 48.
120 Bond (1990) 170 CLR 321 at 336.
1998
A Wavy Line in the Sand
33
s 3(1). However, the interpretation of the ambit of s 3(3) by Ellicott J in Ross v
Costigan121 has effectively limited the scope of the subsection.
His Honour found that s 3(3) only applies where the report or recommendation is a
statutory condition precedent. l22 The result is that what was originally intended as an
extension of the law to avoid the restrictive common law rule that preliminary reports
and recommendations were not reviewable123 now lags behind the common law124
and has been further restricted by judicial interpretation.
<
Decision "proposed to be made"
Another means of by-passing the finality or operative requirement in Bond might be to
challenge administrative action as a decision which is "proposed to be made", a phrase
which appears in ADJR Act s 3(1) in the definition of "decision" and in s 6 in relation to
"conduct". In Bond, Mason CJ suggested the expression "allows the challenge to take
place before the making of the proposed decision",125 but did not elaborate further. The
words were examined by Hill J in Victoria Broadcasting Network (1983) Ply Ltd v Minister
for Transport and Communications who described a "proposed decision" as one put
forward for consideration, acceptance or action by the decision-maker. 126 -Hill J noted
that such a decision was not "a decision that must be made, one way or the other, but ...
a decision that has been put forward to the Minister and adopted by him as one that he
proposes to make".127
The difficulty with relying on this phrase is to find preparatory activity that can be
categorised as a decision which is "proposed to be made". The interpretation suggested
in Bond and Victorian Broadcasting Network covers a very narrow band of administrative
action. If one puts aside final or operative decisions, a statutorily required preliminary
report or recommendation, or procedural steps which amount to conduct there is little
121 (1982) 4 ALN No 91.
122
DC Pearce, Commonwealth Administrative Law (1986) para 321. In Ross v Costigan, upheld on
review (Ross v Costigan (No 2) (1982) 41 ALR 337), this interpretation effectively precluded
review of the report of the Royal Commissioner since it was made pursuant to letters
patent not the Royal Commissions Act 1903 (Cth). Similarly, in Thongchua v AttorneyGeneral (1986) 66 ALR 340, advice to the Governor-General in a release on licence case was
not covered by s 3(3) since it was not a statutory requirement under the Crimes Act 1914
(Cth). The approach of Ellicott J was followed in Edelsten v Health Insurance Commission
(1990) 96 ALR 673 at 685. The Administrative Review Council recommended that this
requirement be eliminated but did not pursue the recommendation, made in its discussion
paper, in view of considerable opposition to the idea (ARC Report No 32, above n 10 at 9093).
123 ARC Report No 32, above n 10 at 90. Testro v Tait (1963) 109 ALR 353; R v Collins; Ex p
124
125
126
127
ACTU-Solo Enterprises Pty Ltd (1976) 8 ALR 691; Brettingham-Moore v St Leonards
Municipality (1969) 121 CLR 509.
In Re Pergamon Press Ltd [1971] Ch 388 at 399 per Denning LJ; Mahon v Air New Zealand
[1984] AC 808; National Companies and Securities Commission v News Corporation Ltd (1984)
156 CLR 296; Annetts v McCann (1990) 170 CLR 596; Ainsworth v Criminallustice Commission
(1992) 175 CLR 564;
Bond (1990) 170 CLR 321 at 343.
Victoria Broadcasting Network (1983) Ply Ltd v Minister for Transport and Communications
(1990) 5 BR 430 at 447-48.
Ibid at 448.
34
Federal Law Review
Volume 26
scope for its application to other administrative action which affects an individual's
interests. The expression might encompass preliminary reports or recommendations
which are not required by statute, and which the decision-maker proposes to adopt. In
which event, the gap in the ADJR Act jurisdiction identified earlier might be filled. The
proposed decision and the ultimate decision must, however, be made by the same
person,128 and the proposed decision cannot be challenged if the activity has been
overtaken by a reviewable decision. 129 Given these restrictions and the difficulty of
proving that a decision not yet made is one which the decision-maker proposes to
make, it is not surprising that applicants for review have rarely found this a fruitful
avenue.
An example of facts which were capable of meeting the requirement is seen in Mt
Isa Mines v Marks. 130 The National Occupational Health and Safety Commission
(NOHSC) had deferred to the Human Rights and Equal Opportunity Commission
(HREOC) when the NOHSC drafted a code of practice for the lead industry. The code
did not differentiate between the levels of lead to which men and women could be
exposed, even though medical evidence showed that lead was more harmful for
women. This misguided restraint was based on advice that if the code was to
distinguish between men and women that would breach the Sex Discrimination Act
1984 (Cth). The applicants were able to challenge the proposed decision of the NOHSC
to adopt the code. Unfortunately, Davies J did not clearly explain the basis for the
conclusion that the action was reviewable. His Honour seemed to suggest that the
NOHSC had abrogated its functions by deferring to the HREOC and that was an error
of law. 131 He also noted that "the subject matter of these proceedings was concerned
with conduct undertaken before the adoption of a code and standard".132 With respect,
that interpretation is not consistent with Bond. Rather, it would appear that the NOHSC
had taken an irrelevant consideration into account in reaching a "proposed decision" to
adopt the code. 133 Since the decision was a proyosed decision, considerations of
procedure, which relate to conduct, were irrelevant. 13
Conduct
What is conduct?
If the interpretation of "decision", following Bond, has produced increased technicality,
it has at least resulted in the development of principles for the guidance of
administrators and legal advisers. The same cannot be said of the Bond interpretation of
128 Ibid at 447-448.
129 Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 141 ALR 322 at 343 per
130
131
132
133
134
Sackville J, at 348 per Kiefel J; Jenkinson J agreed with the reasoning of Sackville J). Cf
Heshmati v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 123.
(1992) 26 ALD 411.
Ibid at 419-20.
Ibid at 420.
ADJR Act, s 6(2)(a).
Mt Isa Mines v Marks (1992) 26 ALD 411 at 420. However, note the observations of Sackville
J (agreed to by Jenkinson J) in Minister for Immigration and Multicultural Affairs v Ozmanian
(1996) 141 ALR 322 at 337 that there are grounds in ADJR Act, s 6 which relate review
under this section to proposed decisions.
1998
A Wavy Line in the Sand
35
"conduct". The word "conduct" literally means "way of acting".1 35 Conduct, in its
ordinary linguistic sense, is capable of applying to the carrying out of most activities of
government. Which of those activities should be reviewable? Even accepting that
conduct, if it is to be reviewed, must have a material impact on interests, must be
restricted to matters of procedure,136 and must be "procedure which the decisionmaker engages in for the purpose of making the relevant decision",137 the range of
potential actions is immense.
In Bond, the majority attempted to draw the distinction in these terms: "In relation to
conduct, the complaint is that the process of decision-making was flawed; in relation to
a decision, the complaint is that the actual decision is erroneous".138 The
substance/procedure distinction is sometimes explained by way of contrast between
determinations which affect peoples' rights, and procedural actions which merely
affect the conduct of proceedings. The adoption of this dichotomy is unhelpful because
in some circumstances a decision relating to procedure will also affect a person's rights.
For example, a decision to refuse an adjournment may result in the applicant being
unable to lead evidence.139
The task of differentiating between activity which is not reviewable, activity which
is reviewable as "conduct", and activity which is reviewable as a "decision" is not made
easier because there are conflicting pointers in the key provisions - ss 5 and 6 - in the
ADJR Act. For example, some grounds of review of "conduct" in s 6, such as absence of
authority, or of jurisdiction, and error of law140 are described in terms of defects in the
proposed decision, rather than of process.141 At the same time, many grounds of review
of a "decision" look to the process of decision-making, rather than the content of the
decision. 142 Sackville J commented in Minister for Immigration and Multicultural Affairs v
Ozmanian 143 that "the relationship between ss 5 and 6 of the ADJR Act is not entirely
clear and the authorities, if not inconsistent, reflect divergent approaches".l44 In other
words, the Bond dichotomy between substance and procedure does not fit happily
within the statutory framework.
The attempt to distinguish between substantive and procedural activities is also
misguided because administrative law is generally concerned with the processes of
135 New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission
136
137
138
139
140
141
142
143
144
(1995) 38 ALD 573 at 581 per Hill Jquoting from the Macquarie Dictionary. As Hill J pointed
out, at 582, the literal meaning of "conduct" is sufficiently broad to encompass findings of
fact as well as policy determinations. However, Bond proscribes such an interpretation.
Bond (1990) 170 CLR 321 at 343; confirming Chan Yee Kin v Minister for Immigration and
Ethnic Affairs (1989) 169 CLR 379.
New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission
(1995) 38 ALD 573 at 583 per Hill J.
Bond (1990) 170 CLR 321 at 342.
Szajntop v Gerber (1991) 28 ALD 187; Shadforths Ltd v Human Rights and Equal Opportunity
Commission (1991) 25 ALD 72.
ADJR Act, s 6(1)(c), (d).
ADJR Act, s 6(1)(c), (d).
Especially ADJR Act, s 5(1)(a), breach of natural justice; and s 5(1)(b), failure to follow
procedures required by law.
Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 141 ALR 322.
Ibid at 337.
36
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Volume 26
decision-making, not the result. The consequence has been to create considerable
difficulty for decision-makers, and to introduce unnecessary technicality into what was
meant to be a remedial statute. It is clear from the cases that the attempt to draw a clear
line in the sand has been fruitless. The decision of the full Federal Court in Hand v
Hell's Angels145 illustrates the difficulty.
The issue in Hand v Hell's Angels was raised following a decisIon of the Minister for
Immigration to refuse an entry permit to members of the Hell's Angels motorcycle
club. The Hell's Angels sought to visit Australia as part of a world series of motorcycle
meetings. The Federal Court said that four actions of the Department amounted to
reviewable conduct: (1) the alleged failure to give proper consideration to the
applications for entry permits; (2) the alleged failure to make a decision expeditiously;
(3) the alleged failure or delay in making a decision so as effectively to prevent the
applicants from taking part in the world trip; and (4) the taking into account of
information received from law enforcement agencies about violence caused by similar
trips in the United States and Canada. These alleged activities were found to be
"conduct", because they related to the way the Department gathered information, an
"essentially proceduralII matter.146
Strictly speaking, action (4) ought not to have been found to be reviewable conduct.
The decision of the Department to have regard to the information was a finding of fact,
which is reviewable under the ADJR s 6 only if there has been a breach of procedural
requirements in the course of reaching that conclusion.147 The requirement that was
alleged to have been breached was taking into account an irrelevant consideration,
which applies only to a decision which has been made, or which is proposed to be
made, not to conduct.148 Factor (4) was, therefore, reviewable, if at all, only under
section 5 of the ADJR Act. 149 Furthermore, factors (1) to (3) involved alleged failures to
act. Since the making of a decision includes the failure to make a decision (ADJR Act, s
3(1), (2» arguably actions (1) to (3) could also have been challenged as decisions.
The reason this approach was not adopted may have been due to the absence of
evidence to support a claim of failure to act. That is an inevitable practical difficulty;
determining when an absence of apparent activity has become actionable failure to act
will always be hard to prove, especially when there are no statutory time limits for
making the ultimate determination. In summary, the significance of the Hell's Angels
case is that it illustrates that activity of these kinds can be challenged under both
"decision" and "conduct". In consequence, it can be argued that the legislative blurring
of the distinction in ADJR Act, ss 5 and 6 permits the courts to be flexible in their
interpretation of these terms.
The following cases illustrate other difficulties in defining what is conduct. To be
reviewable as conduct the activity must be overt. In Whim Creek Consolidated (NL) v
145
146
147
(1991) 25 ALD 667.
Ibid at 670.
Bond (1990) 170 CLR 321 at 343.
148 ADJR Act, s 6(1)(e).
149 The case also demonstrates the overlap between sections 6 and 7 of the ADJR Act, as
unreasonable delay in making a decision is both reviewable delay under s 7 and
reviewable conduct under s 6 (Hand v Hell's Angels Motorcycle Club Inc (1991) 25 ALD 667
at 670).
1998
A Wavy Line in the Sand
37
Colgan,150 O'Loughlin J (with whom Spender and French JJ agreed) had determined
that the seizure of equipment by Customs officials was a "decision", rather than
"conduct". However, the Full Court also noted that inquiries by Customs officers, the
submission of various reports, reaching a concluded determination, and the stated
intention to implement that determination, were all procedural matters which were
observable and positive steps and, as such, could be characterised as conduct.151
The two previous cases indicate that overtness may be a useful test to single out
from the myriad ~xample~ of preparatory activity those actions which are reviewable.
What the concept cannot do, however, is to mark the dividing line between "decision"
and "conduct". That is because a "decision" too must be overt.152 Acceptance of the
Whim Creek categorisation has the advantage that it substantially broadens the range of
activity which can be reviewed as conduct. However, it underscores yet again the need
for flexibility in deciding whether to characterise activity as either "decision" or
"conduct".
These points are illustrated by other examples. In Edelsten v Health Insurance
Commission,153 Davies J suggested that a decision of a Ministerial delegate to refer
information to the Medical Services Committee of Inquiry was reviewable conduct,
because it was the first step in the procedure for review by the Committee.154 This
approach, which has been criticised,155 seems to limit the broader view of conduct by
equating matters of procedure with a statutory condition precedent. If that suggestion
was an attempt to find a discriminator to divide activity which is reviewable conduct
and that which is not, it is arguably too restrictive and does not accord with the
approach taken in other cases. Nor does it assist in the categories of cases next
considered.
Conduct and court or tribunal process
One of the harder questions, as the examples in the earlier Whim Creek case indicate, is
how to differentiate between matters of process and preliminary but operative
determinations. Matters of court process pose particular difficulties and as the next
cases illustrate it is here that the greatest degree of inconsistency has arisen. The variety
of approaches adopted in these cases indicates uncertainty about whether to categorise
matters of process, whether required by statute or not, as "decision" or "conduct".
In Pancontinental Mining Ltd v Burns/ 156 a decision of the AAT not to set aside a
summons issued by a Deputy Registrar was held to be a "decision" rather than
"conduct". Similarly, in Northern Territory of Australia v Land, 157 a decision by the
150 (1991) 103 ALR 204.
151 Whim Creek Consolidated (NL) v Colgan (1991) 103 ALR 204 at 215. Cf Salerno v National Crime
152
153
154
155
156
157
Authority (1997144 ALR 709 in which the preliminary determination to conduct a search of
property was found to be a "decision".
See earlier discussion under" Final or operative" decision and Stages ofdecision-making.
(1990) 96 ALR 673.
Ibid at 688. The other two justices, Northrop and Lockhart JJ, did not comment on this
issue.
D O'Brien, "Judicial review of Commonwealth administrative action: some recent
developments" (1992) 30 Admin Review 2 at 3.
(1994) 124'ALR 471.
(1995) 39 ALD 527.
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Registrar of the National Native Title Tribunal to accept an application for a native title
determination, a decision for which specific ~rovision was made in the Native Title Act
1993 (Cth), was found not to be "conduct".l 8 O'Loughlin J said that the decision was
substantive in character because it gave rise to practical consequences, including the
requirement that the Registrar give notice to interested persons under the Act, and
because of the progression of the application to mediation or determination. 159
However, in Szajntop v Gerber160 Hill J concluded that the decision not to grant an
adjournment was clearly "conduct",161 and similar conclusions have been reached in
other cases. 162 For example, in Molomby v Whitehead163 the refusal of access to
documents wanted for the purposes of a hearing was not a "decision"; and in McGibbon
v Linkenbagh,l64 a refusal of an adjournment was "conduct". The confusion indicated by
these conflicting cases is not eased by the terms of ss 5 and 6 of the ADJR Act, as
Toohey and Gaudron JJ, the minority in Bond, pointed out.165 Sections 5 and 6, when
analysed, clearly do not make the distinction between process and substance which lies
at the heart of the majority judgment in Bond. 166 In those circumstances, perhaps only
legislative intervention can settle the matter.
Conduct and forming an opinion
To return to the other realm of activity - activity which is clearly preparatory - it
appears now to be settled that preliminary reasoning processes cannot amount to
conduct since they are not matters of procedure. 167 A contrary view had earlier been
taken, for example, by Gummow J in Heshmati v Minister for Immigration, Local
Government and Ethnic Affairs. 168 His Honour held that a refusal to accord an appellant
refugee status was conduct, because it was an "essential step in the reasoning", and it
would be "unreal" not to characterise it as being conduct engaged in for the purpose of
158 See also Comptroller-General of Customs v Disciplinary Appeal Committee (1992) 107 ALR 480;
Kelson v Fonvard (1995) 39 ALD 303.
159 See also Shadforths Ltd v Human Rights and Equal Opportunity Commission (1991) 25 ALD 72
(a decision to refuse an adjournment was reviewable under ADJR Act, s 3(1»; Ross v
Costigan (1982) 41 ALR 319 (decision by a Royal Commissioner to summon and question
witnesses was a decision, but the decision to investigate further was conduct).
160 (1992) 108 ALR 215.
161 Ibid at 219.
162 Federal Commissioner of Taxation v Beddoe (1996) 148 ALR 383, where a direction by a Senior
Member of the AAT pursuant to s 33(2A) of the AAT Act was held not to be a "decision".
However, neither was the direction "conduct". A similar finding was made in Re Cane and
Civil Aviation Authority (1997) 46 ALD 668.
163 (1985) 63 ALR 282.
164 (1996) 41 ALD 219.
165 Bond (1990) 170 CLR 321 at 373-79.
166 See, eg, Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 141 ALR 322 at
337 per Sackville J (with whom Jenkinson and Kiefel JJ concurred), New South Wales
Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission (1995) 38 ALD 573.
167 New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission
168
(1995) 38 ALD 573 (in which the decision to set aside a substantial proportion of funds
available for land purchase by Aboriginals solely for use in the Northern Territory was
neither challengeable as a "decision" nor as "conduct").
(1991) 102 ALR 367.
1998
A Wavy Line in the Sand
39
making a decision on an entry permit.169 Gummow 1's approach seemed to imply that
a matter was conduct if it was proximate to the final decision. But this approach
appears t~ be at odds with the test in Bond since it does not confine actionable conduct
to matters of procedure. The majority in Bond r~ected similar reasoning in Chan Yee Kin
v Minister for Immigration and Ethnic Affairs.17 In Chan Yee Kin the High Court had
found that a determination of refugee status was a step in the reasoning process
leading to a conclusion that an applicant should be granted an entry permit under the
then s 6(2) of the Migration Act 1958 (Cth). ,The present position, therefore, is that
decisions such as Heshmati and Chan Yee Kin should no longer be regarded as good
law. 171
The result is a jurisdictional gap in relation to an application for review under the
ADJR Act when the matter relates to a claim for refugee status. If a decision-maker
forms the preliminary, but non-statutorily required, opinion that someone does not
have refugee status that opinion is neither a "decision", because not final or operative,
nor a preliminary determination required by statute and covered by the statutory
extension in the ADJR Act s 3(3), nor is it "conduct" because it is substantive, not
procedural, in nature. The only avenues for review of such decisions are the
prerogative writs and equitable remedies under s 75(v) of the Constitution and s 39B of
the Judiciary Act 1903 (Cth), or the accrued jurisdiction under ss 22 and 23 of the
Federal Court of Australia Act 1976 (Cth).172 Creating jurisdictional gaps of this kind
was certainly not the intention of the framers of the Commonwealth review package
and outcomes of this nature from Bond are an unwelcome return to the formalism of
the past. It is hoped that gaps of this nature can be strictly confined.
Conduct and other issues
Drawing the distinction between a "decision" and "conduct" has been made more
difficult because some cases simply assume, without indicating what led to that
conclusion, that action falls on one side of the line or the other; others appear to ignore
the possibility of there being an alternative for no discernible reason. For example,
Morling J in Harris v Bryce173 found that advice by the Sex Discrimination
Commissioner to the relevant Minister that she was obliged to investigate a complaint
was not a decision but apparently His Honour did not consider whether it amounted to
conduct. Similarly, in Neate v Australian Securities Commission174 a challenge to a show
cause order under s 600(2) of the Corporations Law, which was a statutory
requirement preceding an order under s 600(3) prohibiting someone for a period from
managing a company, was found not to be a decision. Again, apparently no
consideration was given as to whether it might have been conduct.
169 Ibid at 375.
170
(1989) 169 CLR 379.
171 The earlier approach is also apparent in Heshmati v Minister for Immigration, Local
172
Government and Ethnic Affairs (1991) 102 ALR 367; Gunaleela v Minister for Immigration and
Ethnic Affairs (1987) 15 FCR 543; 74 ALR 263.
NSW Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission (1995) 38
ALD573.
(1993) 113 ALR 726.
174 (1995) 132 ALR 413.
173
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Volume 26
However, some helpful distinctions have been made in the cases. Hill J in New South
Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission175
observed that it was easier to differentiate between substantive and procedural
decisions in relation to tribunals than for activity within the administration itself.176 As
his Honour commented, it was only when the decision-maker had embarked upon or
proposed to embark upon the decision-making process that matters of procedure
became relevant. Similarly, Merkel J in Ozmanian v Minister for Immigration and Ethnic
Affairs177 described conduct within an agency as the
antecedent and preparatory procedural conduct of departmental officers in conducting
inquiries, making recommendations and preparing a proposed draft of the decision for
presentation to the minister or to his officers responsible for making the decision on his
behalf. 178
That is a fair summary of the kinds of preliminary processes which are typically
undertaken prior to the making of a formal decision. The only qualification is that
when a preliminary report or recommendation is required by statute it may be a
"decision".
Other matters have also been settled. Action which follows the decision-making
process can never be "conduct" for the purposes of ADJR Act jurisdiction179 and, to be
reviewable, conduct need not have been undertaken by the decision-maker but may be
action taken by others with the authority of, or under a delegation of power from, that
person. 180 The latter findings take due account of the realities of decision-making by
ministers and bureaucrats. Although it has not finally been determined by the High
Court, it is probably also settled that conduct is limited to proposed decisions and
cannot be applied to the antecedent procedures leading to a decision which has already
been made.181
175
176
177
178
179
180
181
(1995) 131 ALR 559 at 570.
In most cases tribunal procedure is set out in statute or is adopted by analogy with court
process and is more easily identifiable as process which should be reviewable. Hence, for
example each of the following matters before the Administrative Appeals Tribunal (a
refusal of an adjournment (Szajntop v Gerber (1991) 28 ALD 187); a ruling that evidence
could be given by video conference (Federal Commissioner of Taxation v Grbich (1993) 31 ALD
97); and a refusal to reconvene a hearing (A v Veterans' Review Board (1995) 38 ALD 315),
were processes found to be reviewable as "conduct".
(1996) 137 ALR 103.
(1996) 137 ALR 103 at 131. The Full Court decision in this matter which overturned the
orders made by Merkel J at first instance, does not appear to have cast doubt on that
description (Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 141 ALR
322). See also Merman Pty Ltd v Comptroller-General of Customs (1988) 16 ALD 88; Whim
Creek Consolidated (NL) v Colgan (1991) 31 FCR 469 at 481; 103 ALR 204 at 215 per
O'Loughlin J in a judgment concurred in by Spender and French JJ.
Warren v Repatriation Commission (1995) 39 ALD 513; Sandery v Commissioner of Police (1985)
65 ALR 181.
Century Metals and Mining (NL) v Yeoman (1989) 100 ALR 383; Merman Pty Ltd v
Comptroller-General of Customs (1988) 16 ALD 88; Gunaleela v Minister for Immigration and
Ethnic Affairs (1987) 15 FCR 543 at 556-7; 74 ALR 263; Gourgaud v Lawton (1982) 42 ALR 117;
Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 141 ALR 322.
Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 141 ALR 322. Cf
Heshmati v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 123.
1998
A Wavy Line in the Sand
41
Suggested solutions
The criticisms of Bond are not meant to suggest that the courts should return to an
open-ended meaning of "decision".182 There are alternatives. If the interpretation
adopted in Bond is dictated by the language of the ADJR Act, then the problem lies not
with the courts but is one which requires legislative amendment. Although the
Administrative Review Council in its 1989 report on the ADJR Act183 suggested that
there was no need for such an amendment, that suggestion was made prior to the High
Court's decision in Bond and b,efore its impact began to be felt on the jurisdiction of the
Federal Court and the AAT.
Another suggestion is to adopt the earlier Lamb v Moss interpretation of "decision".
If that suggestion is accepted, the scope of judicial review would depend on the judges'
notions of justiciability. Criteria of justiciability would have to be defined. These would
need to encompass, for example, that the matter is ripe for review, that it materially
affects interests, and that it may be inappropriate for the court to intervene when the
matter involves sensitive policy issues.
Alternatively, since many of the difficulties have arisen from a strict application of
the jurisdictional tests in Bond, the solution may be to interpret the statutory hurdles
more flexibly, while retaining the distinctions based on the statutory language. In that
way the arbitrariness of findings which rely on too rigid an adherence to Bond can be
avoided. That suggestion has the advantage that it takes account of the multi-faceted
nature of administrative decision-making and avoids any problems which arise from
attempting to draw too definitive a line in the administrative sand.
It can be argued in support of this approach that the majority in Bond apparently
intended to limit judicial review to those decisions which have a real impact on a
person's rights. 184 Usually, a decision will not have any such impact unless it is final or
operative, and substantive.18S However, sometimes a preliminary step can impact on
the individual, and judicial review should be available in these circumstances. Making
the touchstone of reviewability rights or interest focused puts the emphasis on the
effect of administrative action. A rights or interest focus helps determine whether the
matter is substantive and brings the jurisdictional aspect of review into line with the
court's test for standing. Accordingly, it is submitted that the Court should concentrate
its attention on the issue of whether the administrative action has had an impact on a
person's interests, rather than become involved in the technical question of what is final
or operative, and substantive. That approach should not remove the need to defer, on
occasions, to the administrator's judgment. Some decisions should not be reviewable
even though they affect a person's rights or interests.186
182 Although that would be one option, see J D McMillan, "Recent Themes in Judicial Review
of Federal Executive Action" (1996) 24 F L Rev 347 at 369. In that event, the ability to
challenge matters of administration before the Federal Court would be at the Court's
discretion.
183 ARC Report No 32, above n 10.
184 Compare Edelsten v Health Insurance Commission (1990) 96 ALR 673 at 682-683.
185 It should be noted that in Bond, Mason CJ states that a "decision" under the ADJR Act" will
generally, but not always, entail a decision which is final and operative ..." «1990) 170 CLR
321 at 337 (emphasis added)).
186 Minister for Immigration and Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259.
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Federal LauJ Review
Volume 26
The question remains as to the correct interpretation of "conduct". As judicial
review concentrates on the process, rather than the merits, of the decision-making
process, to make "conduct" reviewable appears to add little to the ambit of review of a
"decision".187 Distinguishing between the two has also proved to be an almost
impossible task for the courts. Consequently, while preliminary administrative activity
which does not affect a person's rights should not be reviewable as "conduct", neither
should the inclusion of a definition of "conduct" be a reason unnecessarily to limit the
meaning of "decision". It is submitted that "conduct" should still be confined to
procedural matters, but that the overlap between a reviewable "decision" and
reviewable "conduct" should be recognised so that the cons~uential jurisdictional
uncertainty does not become a technical reason to deny review.18 Above all, the courts
should be prepared to interpret the jurisdictional concepts with flexibility in order to
avoid the development of jurisdiction gaps which inhibit review.189 As Tamberlin J
commented in Vietnam Veterans' Association of Australia (NSW Branch) Inc v Cohen,190
liThe object of the ADJR Act is to enable, rather than restrict, judicial review of the
actions of administrative bodies".
Conclusion
The requirement that, in most cases, reviewable decisions should be "final or operative"
was introduced by the majority in Bond in order to prevent fragmentation of
administrative decision-making processes, thus jeopardising administrative
efficiency.191 That requirement, as was intended, has had most impact on the steps
which precede decision-making. Apart from the express provision in s 3(3) of the ADJR
Act that ~reparatory reports and recommendations required by statute be
reviewable, 92 preliminary administrative action, including investigations and reports,
unless it can be characterised as "conduct" or as "a proposed decision, II now falls
outside the ambit of the ADJR Act. There is an irony about this development given the
recognition that even intermediate reports can have a deleterious effect on matters such
as reputation, an interest which increasingly is seen as warranting the protection of the
courts.193
187 Parliament may have provided for review of conduct merely out of an excess of caution. Cf
Bond (1990) 170 CLR 321 at 337, where Mason C] states that certain other provisions of the
AD]R Act "appear to have been introduced for more abundant caution and it would be
unwise to take too much from them". See also the approach taken in the AAT, discussed
below, which has no separate definition of "conduct".
188 Cf Family Radio v ABT (1991) 28 FLR 584 at 586.
189 A step advocated by Hill ] in New South Wales Aboriginal Land Council v Aboriginal and
Torres Strait Islander Commission (1995) 38 ALD 573 at 382. His Honour pointed out that a
flexible approach would appear to be statutorily encouraged by the terms of AD]R Act,
s 3(5).
190 (1996) 46 ALD 290.
191 Bond (1990) 170 CLR 321 at 337.
192 AD]R Act, s 3(3).
193 For example, Kelson v Fonvard (1995) 39 ALD 303; Ainsworth v Criminal Justice Commission
(1992) 175 CLR 564 at 585 per Brennan ]; Annetts v McCann (1990) 170 CLR 596; Lewins v
Australian National University (1995) 40 ALD 21 (reversed by the Full Court but on other
grounds).
1998
A Wavy Line in the Sand
43
The most significant lesson from this survey of the cases is that the reasoning of the
majority in Bond has introduced a degree of subtlety and complexity to judicial review
which was never intended by those in the 1970s who codified the common law rights
to judicial review. Indeed, the approaches adopted to jurisdictional issues has begun to
replicate the very problems which the passage of the ADJR Act was designed to avoid.
That is an unfortunate development which, with a more flexible attitude on the part of
the courts, might have been avoided.
ADMINISTRATIVE REVIEW AND JURISDICTIONAL QUESTIONS
The kind of administrative activity which should be reviewable is not simply an issue
for the courts exercising judicial review. The problem arises also for bodies exercising
merits or administrative review. Admittedly, the task is easier for administrative
review bodies since their review jurisdiction is quite precisely defined and decisions
which are to be subject to review are generally identified in legislation. Nonetheless,
the question remains of whether particular action by an administrator falls within the
legislative definition of reviewable activity. Hence, the same or similar issues as arise
for the Federal Court occur frequently also for administrative tribunals. The questions
thus posed will be examined in the context of the jurisdiction of the Commonwealth
AAT. The comparison between the jurisprudence on jurisdictional issues of that body
and of the Federal Court under the ADJR Act is valuable because the definition of
"decision" in the legislation creating the AAT is virtually identical with the definition in
the ADJR Act. That is consistent with the intention of those creating the
Commonwealth administrative law system that the system be an integrated one.
Jurisdiction of the AAT
Under the AAT Act 1975 (Cth) the AAT can review decisions made under an Act
which grants jurisdiction to the Tribunal. 194 The AAT's authority to review, therefore,
arises under a combination of the AAT Act195 and the terms of the legislation granting
jurisdiction to the Tribunal. The need to have regard to the referring Act as well as the
AAT's own legislation adds a layer of complexity to the jurisdictional question that is
absent from applications under the ADJR Act.
A second distinction is that "decision" arises in different contexts in administrative
as compared with judicial review. In Bond, the Court dealt with two issues: first was
the administrative action challenged inchoate?; second, assuming that the decision was
reviewable, how far back in the administrative process could the reviewing body look
when determining whether administrative error had occurred. 196 Most of the cases so
far considered in relation to the ADJR Act have arisen under the first of these elements.
However, in administrative review, the matters which come before the Tribunal
generally relate to decisions which have been made and prematurity is not the issue.
What needs to be determined is which elements of the decision are reviewable.
Another significant contrast between jurisdictional barriers under the ADJR Act and
AAT review is that the jurisdictional remit of the Tribunal does not include "conduct".
194
195
196
AAT Act, s 25(1), (4).
AAT Act, ss 3(1), (3), 25(1), (4) .
J D McMillan, "Recent Themes in Judicial Review of Federal Executive Action" (1996) 24 F
L Rev 347 at 368.
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Volume 26
That raises the question of whether the Tribunal can review matters of adjudicative
process or statutory conditions precedent to making a decision.
It must also be remembered that the policy objectives differ according to whether
the review is by a court or a tribunal. In judicial review a court is concerned to ensure
that the decision-making process is within legal parameters and early intervention is,
therefore, sometimes appropriate. But in administrative review, the purpose is to
substitute a new decision if the overall merits are defective. So, it is generally better to
wait until the end of the process. Such an a~froach also has the advantage of not
fragmenting the review processes of the AAT.1
The statutory definition of "decision" in the AAT Act is, as the High Court noted in
Bond,198 virtually the same as the definition in the ADJR Act. Not unnaturally it has
been assumed that the inte~retation of "decision" under the ADJR Act, s 3(1) should
also apply to the Tribunal. 1 That is consistent with the Kerr Committee's vision of a
"comprehensive and integrated system of administrative law."200 That system was to
permit judicial review at first instance by the Federal Court as well as administrative
review by the AAT. Those subject to administrative review were to be administrators,
Ministers, administrative tribunals and others, subject to the supervisory and appellate
jurisdiction of the Federal and High Courts. 201 One looks in vain in the Kerr
Committee Report for any indication that "decision" was to have a meaning which
differed according to whether it was judicial review or administrative review of the
decision which was being discussed. 20
There are two consequences which result from the assumption that "decision"
should be interpreted uniformly for applications to the Federal Court and to the AAT.
The interpretation in Bond which curtailed the meaning of "decision" was largely
197
198
199
Federal Commissioner of Taxation v Beddoe (1996) 148 ALR 383.
Bond (1990) 170 CLR 321 at 375 per Toohey and Gaudron JJ.
Re Gallivan Investments Ltd and Australian Securities Commission (1991) 24 ALD 611; Re Toll
and Australian Securities Commission (1992) 29 ALD 412; Re Adams v Veterans' Review Board
(1992) 16 AAR 307; Australian Postal Corporation v Matusko (AAT, Olney J, 29 April 1996,
unreported).
200 Kerr Committee Report, above n 10, recommendation 10, p 114. Ward v Nicholls (1988) 16
ALD 353 (Wilcox J referred to "the comprehensive system"); Lamb v Moss (1983) 76 FLR
296; 49 ALR 533 (Bowen CJ, Sheppard and Fitzgerald JJ referred to the "consistent and
logical relationship": (FLR at 319; ALR at 557). That remark was admittedly made in the
context of the relationship between the Federal Court and the State courts but it could also
describe the Federal Court's relationship with the AAT. The consistency argument also
explains the number of referring Acts which adopt the definition of "decision" in the AAT
Act (for example, the Corporations Law, s 1317A; Patents Act 1990 (Cth), s 224(4); Safety,
Rehabilitation and Compensation Act 1988 (Cth), s 62; Social Security Act 1991 (Cth),
s 23(1».
201 Decisions of the Tribunal may be appealed to the Federal Court on "a question of law"
(AAT Act 1975, s 44(1» or the High Court under s 75(iii) but are also subject to both Courts'
judicial review jurisdiction (eg Barbaro v McPhee (1982) 42 ALR 147; Pancontinental Mining v
Burns (1994) 124 ALR 471).
202 For example, Kerr Committee Report, above n 10 at paras 92, 247, 253, 300 and 357-358.
The only qualifications to the ambit of review were that it should not extend to matters of
policy, or to decisions of the Governor-General. Otherwise administrative action which
affected a citizen's rights was to be reviewable (see paras 67, 354).
1998
A Wavy Line in the Sand
45
compensated for by the complementary jurisdiction in the ADJR Act over
administrative "conduct",203 and by the statutory extension of "decision" to include
intermediate reports and recommendations or findings of fact where these are required
under an enactment. 204 Neither extension, however, is found in the AAT Act. Hence by
adopting the meaning given to "decision" in Bond, the Tribunal is considerably
restricting its review options. The logical consequence is that unless the referring Act
specifically grants jurisdiction to the Tribunal over matters covered by s 3(3) and (5) of
the ADJR Act, preliminary or preparatory activities are not reviewable by the AAT.205
Secondly, the assumption fails to take account of the different focus of
administrative and judicial review. The Kerr Committee view was that there should be
a merit review body with wide jurisdiction which would provide administrators with
guidance across the range of matters arising under the Acts they administered. 206 As
Smithers J commented in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd:
It is important to observe that the Tribunal is not constituted as a body to review
decisions according to the principles applicable to judicial review. In essence the
Tribunal is an instrument of government administration: it is designed to act where
decisions have been made in the course of government administration but which are in
the view of the Tribunal not acceptable when tested against the requirements of good
government. 207
Making the "requirements of good government" the test of what is a "decision" may be
too broad a description of the Tribunal's powers. Nonetheless, the point of his
Honour's remark remains. The Tribunal's jurisdiction was seen as covering a wide
range of government activity. To adopt the ADJR Act meaning of "decision" as the
touchstone of the Tribunal's jurisdiction is too narrow, leaving gaps which can only be
filled by resort to the ADJR Act. That in turn leads to delay, legal complexity and
increased expense in the review process, the antithesis of the Kerr Committee vision for
administrative review. 208
In practice, as will be shown, the adoption of the Bond definition of "decision" has
not had the limiting effect which this analysis suggests. While the AAT has confined its
jurisdiction to final or ultimate administrative action,209 the Tribunal has, nonetheless,
tended to take a broad view of matters which fall within that compass. This indicates
that the restricted Bond meaning of "decision" may be less influential than the rhetoric
in the case law suggests. It also indicates an option available to the Federal Court for a
less rigorous interpretation of the Bond definition.
203
One of the principal reasons for the definition adopted by Mason CJ in Bond was that it
enabled some meaning to be given to "conduct" in ADJR Act, s 6 and was, in that sense,
required as a matter of statutory construction.
204 ADJR Act, s 3(3).
205 Of course, intermediate, preliminary or procedural decisions are reviewable during review
of the effective or final decision provided they are "part of the structure of the ultimate
decision" (Director-General of Social Services v Chaney (1980) 3 ALD 161 at 180).
206 Kerr Committee Report, above n 10 at paras 357-358. See also Collector of Customs (NSW) v
Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1 at 4 per Bowen CJ.
207 Ibid at 23.
208 Ibid at 20 per Smithers J.
209 Director-General of Social Services v Chaney (1980) 3 ALD 161.
46
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Review of invalid decisions
What may be termed the "Brian Lawlor" factor adds to the jurisdictional difficulties.
Early in its histo~, the Tribunal in Re Brian Lawlor Automotive Ply Ltd and Collector of
Customs (NSW)21 faced the argument that if a decision-maker's actions had no lawful
base, the Tribunal was denied power to review. Brennan J, then President of the
Tribunal, emphatically rejected this argument:
Where an attempt to exercise a statutory power falls outside the limits of the power
conferred (whether because the repository of the power acts under a misconception of
the limits of the power, or because he acts under a mistake as to the fulfilment of a
condition precedent, or because he does not observe a condition governing the exercise
of the power) it is immaterial that, in good faith, the repository intended to act and
believed that he was acting within power .... Adapting the words of s 25(1), the criterion
of jurisdiction is whether the decision is made in the intended exercise of a power
conferred by an enactment, not whether the decision is made in the valid exercise of such
a power. 211
The majori~,212 on appeal to the Federal Court, substantially agreed with the view of
Brennan J.2 3 The majority accepted that the decision was administratively reviewable
even if there was no statutory source of power, the power was subject to a condition
which was not met or it was made in circumstances leading to invalidity.
Taken together, the AAT and the Federal Court decisions in Brian Lawlor indicate
clearly that a liberal view should be taken of the extent of the Tribunal's jurisdiction. 214
That approach was justified on both doctrinal grounds and for reasons of policy. As the
majority of the Federal Court noted in Brian Lawlor,215 logically it was impossible to
differentiate between the causes of invalidity since "there are no degrees of
invalidity".216 Hence, it would be unsafe to make that distinction the basis of any
jurisdictional limitation. Further, there are sound practical reasons why no such
differentiation should be attempted. The consequences of finding that a decision is
unreviewable by the Tribunal are that judicial review becomes the only avenue of
challenge. That defeats the purpose of having a simple, non-technical and relatively
inexpensive review option, and denies the Tribunal the opportunity to exercise its
normative influence across public administration.
Nonetheless, the jurisdiction is statutorily defined and in Brian Lawlor both the
Tribunal at first instance and the Federal Court on appeal recognised they must pay
heed to the criteria in ss 3(3), 25(1), and (4) of the AAT Act. The most significant
statutory limitation is found in s 25(4) which requires that a reviewable decision must
be made in the exercise of powers conferred by a relevant enactment. That means the
210 (1978) 1 ALD 167.
211 Ibid at 179.
212 Bowen CJ and Smithers J. Deane J, in the minority, disagreed on the basis that a usurpation
213
214
215
216
of power or function could not properly be regarded as a decision (Collector of Customs
(NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1 at 30).
The principal point of difference was that the Court rejected Brennan 1's emphasis on the
actor's state of mind. The Court found that the actor's belief about lawful authority was
irrelevant. A purported reliance on a source of power to act was sufficient.
(1979) 2 ALD 1 at 6-7 per Bowen CJ; at 26 per Smithers J.
Ibid at 6 per Bowen CJ; at 21 per Smithers J.
Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147.
1998
A Wavy Line in the Sand
47
source of authority for the decision must be found in an express or implied legislative
provision. 217 To meet that test the power to make the decision must be able to be
described as having been conferred by, or made under, or pursuant to, the enactment.
That issue was only dealt with in general terms by the Federal Court. In the view of
Bowen CJ and, by implication, also of Smithers J,218 action purportedly taken in
reliance on an Act listed in the Administrative Arrangements Order (which list the Acts
committed to the administration of each Minister)219 would meet the test. Their
Honours conceded that there might be a case in which no power existed, but said that
such a case would be "rare".220 Deane J (who dissented on the outcome) went further.
He found that for a decision to be made "under" an enactment it must at least be a
"colourable exercise" of power conferred by the legislation. 221 Brian Lawlor, therefore,
establishes that although invalidity per se is no barrier to administrative review, there
are limits to the Tribunal's jurisdiction. The activity challenged must be referable to
legislation which the agency administers and must broadly find its source in the terms
of the referring instrument which grants jurisdiction to the AAT.222
In summary, a reading of the AAT Act in the light of Bond suggests that a
reviewable decision must be made under an enactment, must be final or operative, and
must be substantive. Preliminary jurisdictional or procedural matters are not
reviewable unless they are specifically covered by the grant of jurisdiction under the
referring Act. Whether that summary ties in with the Kerr Committee's view of the
Tribunal's jurisdiction, or with the views expressed in the early cases which interpreted
the ambit of the AAT's powers, will be explored in the discussion of the case law which
follows.
Narrow meaning of "decision"
The first two decisions illustrate the limits on the AAT's jurisdiction by comparison
with the review powers of the Federal Court. The limits are those which flow from the
Bond requirement of 'ripeness' for review if a matter is to qualify as a "decision". In Re
Gallivan Investments Ltd and Australian Securities Commission,223 the Australian
Securities Commission (ASC) had concluded that "unacceptable circumstances" had or
may have occurred in relation to the acquisition of shares or the conduct of the affairs of
a company. The ASC then applied to the Corporations and Securities Panel for a
declaration that the applicant had or may have been involved in "unacceptable
circumstances".224 That was a preliminary step to referring certain conduct to the Panel
under s 733 of the Corporations Law. If the Panel made the declaration, the Australian
Securities Commission had various powers to make orders affectin the parties. The
Tribunal applied Bond and Director-General of Social Services v Chaney 25 and concluded
2
217 Hutchins v Federal Commission of Taxation (1996) 136 ALR 153.
218 Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1 at 27.
219 Ibid at 5 per Bowen CJ; at 19-20 per Smithers J.
220
Ibid at 5, 7 per Bowen CJ; at 21 per Smithers J .
221 Ibid at 30 per Deane J.
222 A discussion of some of the cases which have raised this issue occur later under "Decision"
223
224
225
and invalidity.
(1991) 24 ALD 611.
Corporations Law, s 733.
(1980) 31 ALR 571.
48
Federal Law RevieuJ
Volume 26
that it lacked jurisdiction: referring the matter to a panel for investigation was not a
final or operative determination. 22
A similar outcome was reached in Re Hongkong Bank and Australian Securities
Commission. 227 The Australian Securities Commission had authorised the new trustees
of the Estate Mortgage Trusts to apply for an order to examine the former trustees
pursuant to s 597(1) of the Corporations Law. The purpose of the inquiry was to
determine whether the individuals had been or may have been guilty of fraud or other
misconduct, or may have been able to provide information about the affairs of the
company. The process could lead to a further investigation into the affairs of a
company and possible actions arising out of C).ny misconduct. The applicant was the
employer of the individuals who were under investigation. Again, the Tribunal found
that the decision was not "a determination of an application, enquiry or dispute"228 and
hence lacked the necessary quality of finality.229
In these cases it was established that each decision involved activity at the
investigative or preliminary stage and on their facts, neither case fell within the narrow
meaning of "decision". However, arguably the determinations could be characterised in
ADJR Act terms as "conduct" since the actions were procedural in nature, were
authorised by statute, and the consequences of the determinations involved cost and
had the potential to affect reputations. Accordingly both decisions would have been
reviewable under the ADJR Act. 230 The restricted Bond meaning of "decision" means,
however, that neither determination can be reviewed by the AAT. That reasoning
vindicates the Tribunal's decisions but, if the hypothesis about ADJR Act reviewability
is correct, it also exemplifies the jurisdictional dissonance caused by the AAT's
adoption of the Bond definition of "decision". The effect of the restriction denies those
involved in proceedings before the Australian Securities Commission an inexpensive
and relatively quick avenue for review on the merits by the Tribunal, an expert body. It
also raises doubts about whether the Bond interpretation of "decision" is appropriate for
the Tribunal given the different legislative framework for that body's jurisdiction. This,
too, may need to be the subject of legislative amendment if the full benefits are to be
experienced by those opting for administrative, rather than judicial, review.
226
The correctness of the decision in Re Gallivan was thrown into doubt by the decision of the
majority in Mercantile Mutual Life Insurance Co v Australian Securities Commission (1993) 11
ACLC 235 and has been criticised in E Armson, "AAT Review of the ASC's Decision to
Apply or not to Apply to the Corporations and Securities Panel" (1994) 12 Company and
Securities Law Journal 439. In Re Toll and Australian Securities Commission (1992) 29 ALD 412
at 416, Mr McMahon, the AAT member who decided Re Gallivan and Re Hongkong Bank of
Australia Ltd, stated that he was confirmed in his conclusion in those cases on the basis that
the decision was upheld on appeal, albeit on different grounds, by the Full Court of the
Federal Court (Hongkong Bank of Australia Ltd v Australian Securities Commission (1992) 27
ALD 257).
227 (1992) 26 ALD 307.
228 Re Hongkong Bank and Australian Securities Commission (1992) 26 ALD 307 at 311.
229 It was conceded, however, that if the request had been refused, the refusal would have
been reviewable while the grant of the application was not.
230 For the policy arguments in favour of review see E Armson, above n 225. North J in Avram
v Australian Securities Commission (1996) (Australian Financial RevieuJ, 20 November 1996 at
3) described a similar exercise of power by the ASC as "mighty".
1998
A Wavy Line in the Sand
49
"Decision" encompasses substantive and procedural matters
The cases following are tied to the second element of Bond, namely, how far back in the
administrative process should review be permitted. In this context, the cases appear to
establish that there is a willingness to find that "decision", for administrative review
purposes, embraces both substantive and procedural elements contrary to the
interpretation of Bond insisted upon by the majority in the High Court. Hence in Re
Woolworths and Collector ofCustoms,231 Smithers J said:
We did not consider that it is our duty to decide whether the decision in fact made was
the correct decision and to do this without regard to the processes by which the
departmental decision was made. 232
Similarly, in Australian Postal Corporation v Matusko,233 Olney J accepted that a
jurisdictional issue was a "decision" which could be the subject of an appeal from the
Tribunal on a "question of law".234 His Honour held that "the assertion as to
jurisdiction will ,constitute part of the structure of such an ultimate decision".235 The
substantive decision was made under the Safety, Rehabilitation and Compensation Act
1988 (Cth). The Tribunal had refused to dismiss an application for review on the basis
that the application was frivolous or vexatious.
The acceptance by the Tribunal, and by the Court on appeal, that "decision" in the
AAT Act should encompass procedural as well as substantive elements for the
purposes of AAT review, is a pragmatic response to the failure to include in the AAT
Act the extended review jurisdiction granted to the Federal Court under the ADJR Act.
It also illustrates that the Tribunal, as the final administrative review body, may need
to arrogate to itself as wide a jurisdiction as possible. The result, however, is to fuse the
substantive and procedural aspects of decision, contrary to the preferred interpretation
of the majority in Bond.
A graphic example of this approach is found in Crompton v Repatriation
Commission. 236 The issue was whether the Tribunal had jurisdiction given that review
had been sought of a decision made by the first tier review body, the Veterans' Review
Board (Board), which itself lacked jurisdiction. The Tribunal concluded that it had no
authority to review because the veteran had failed to comply with a statutory condition
precedent, namely, an absolute time limit within which to seek review by the Board.
The key provision in the referring Act was found in the Veterans' Entitlements Act 1986
(Cth), s 175(1) which provided:
. Where a decision made by the Commission has been reviewed by the Board upon a
request made under section 135 and affirmed, varied or set aside, then, subject to section
29 of the Administrative Appeals Tribunal Act 1975, application may be made to the AAT
for a review:
(c) of the decision made by the Board in substitution for the decision so set aside.
231 (1978) 1 ALD 116.
232
233
234
235
236
Ibid at 122.
AAT, Olney J, 29 Apri11996, unreported.
AAT Act, s 44(1).
Australian Postal Corporation v Matusko (AAT, Olney J, 29 April 1996, unreported, at para 12
of judgment).
(1993) 30 ALD 45.
50
Federal Law Review
Volume 26
Section 135 provided that an application must be made within three months of the
initial decision being served on the applicant, "but not otherwise".
The applicant's argument was that the provisions in the Veterans' Entitlements Act
1986 (Cth), in conjunction with s 29 of the AAT Act, applied only to substantive and
final decisions and that a decision about time limits did not fall within those categories.
Hence, it was argued that the Board's decision that it had jurisdiction was final and
was not reviewable by the Tribunal. The Full Court of the Federal Court rejected this
submission. The Court concluded, following Chaney and Bond, that the jurisdictional
decision was a preliminary procedural, not a substantive, ruling. However, the Court
went on to find that the issue was a procedural matter forming part of the overall decision
of the Board. The Court, therefore, upheld the Tribunal's decision that the whole
decision, including the jurisdictional question, was reviewable. 237
In Re Young and Telstra Corporation 238 the substantive question about eligibility for
compensation had been decided by Telstra. A challenge was subsequently made to
Telstra's decision to refuse to reconsider the decision. Telstra's refusal was on the basis
that the request for reconsideration was not made within the statutory time limit of 30
days within the terms of the Safety, Rehabilitation and Compensation Act 1988 (Cth)
(SRC Act), s 62. It was argued by Telstra that its action was not a decision within s 3(3)
of the AAT Act and hence was not reviewable. O'Connor J decided that as the referring
Act gave Telstra a discretion to extend the time limit it was not mandatory for Telstra
or the Tribunal to comply with the formalities involved in seeking an extension. Her
Honour found also that, as both the SRC Act and the AAT Act were beneficial statutes,
they should be interpreted in a way which facilitated review. Hence the refusal to
reconsider, arguably a procedural matter, was reviewable.
The assumption behind the reasoning was that, if the time limit had been
mandatory, the Tribunal would not have had jurisdiction. The correctness of that
assumption is a separate issue. In the context of the present discussion, there was no
explicit recognition that the Tribunal was extending the meaning of "decision" to cover
matters of process contrary to the injunction in Bond. It is even doubtful that the
reasoning in Crompton v Repatriation Commission could be applied to this situation, since
the application for a reconsideration could not be considered to be part of the structure
of the decision, given that it followed, not preceded, the determination.
The upshot of these cases is that the Tribunal has generally been prepared to find
that it has jurisdiction over all aspects of the decision, albeit it only acquires jurisdiction
at the end-point of the process, namely, when an effective and final determination has
been made. 239 A preliminary or interim ~rocedural decision on its own, such as a
decision to adjourn, can not be reviewed. 2 0 However, once the final determination is
made, all the interim conclusions, including decisions on matters of process and
jurisdiction, can be reconsidered.
237
238
239
240
See also Australian Postal Corporation v Matusko (AAT, Olney J, 29 April 1996, unreported).
(1993) 32 ALD 307.
Director-General of Social Services v Chaney (1980) 3 ALD 161.
Re McLeod and Repatriation Commission (1990) 21 ALD 579; Repatriation Commission v Gordon
(1990) 26 FCR 569; 100 ALR 255; Cf Re Mahon and Repatriation Commission (1991) 25 ALD
541.
1998
A Wavy Line in the Sand
51
The interpretation of the Tribunal's jurisdiction to include procedural and
jurisdictional matters may be appropriate in policy terms. The wider the Tribunal's
jurisdiction the less the need to seek orders from the Federal Court. The expansive
interpretation of "decision" circumvents the problem adverted to earlier of the omission
from the AAT Act of a definition of "conduct" and of an extended definition of
"decision". This solution to the problem means, however, that "decision" does not have
the same meaning in the ADJR Act and the AAT Act and the case law which ignores
this difference is arguably misleading. The consequence is that a separate and different
jurisprudence is developing for the purposes of administrative, as compared with
judicial, review.
"Decision" and invalidity
"Decision" may have been generously construed for the purposes of the AAT Act, but
the cases indicate that, despite the findings in Brian Lawlor, many Tribunal members
and some Federal Court judges have not been able to take a similarly expansive view
when the issue is one of invalidity. Their attitude is epitomised by the comment of
Deputy-President Burns in Re Secretary, Department of Social Security and Frankos 241
when he said that to argue that an abuse of power can be remedied so as to enable the
Tribunal to review the decision "is a nonsense".242
Clearly the Tribunal and the Federal Court have had difficulty discerning what
limits, if any, should be read into the words of s 3(3) to take account of the supervening
legal doctrines relating to the consequences of unlawful action. 243 There still seem to be
a significant number of cases which start from the proposition that a decision is not
administratively reviewable if it is not a legally effective exercise of power. These
include several where the Tribunal was denied jurisdiction because a mandatory
condition precedent in the referring statute had not been fulfilled. 244
There is, however, inconsistency in the case law. In Re Reid and Secretary, Department
of Social Security245 the Tribunal accepted jurisdiction when the Social Security Appeals
241
(1993) 32 ALD 271. The Social Security Appeals Tribunal had unlawfully assumed
jurisdiction to review.
242 Ibid at 279 (discussed below in text at n 253).
243 The same dilemma arises in relation to the void/voidable distinction which bedevils
administrative law.
244 Lynch v Minister for Human Seroices & Health (1995) 39 ALD 501 (in which the failure to
obtain a report from an inspection agency that its histopathology services met national
standards, a requirement under clause 4.2(a) of principles determined under s 23DNA of
the Health Insurance Act 1973 (Cth), was held to deny the AAT jurisdiction to review a
decision giving approval in principle for LIs premises to be an approved pathology
laboratory for certain kinds of pathology services but omitting histopathology); Re
Meenahan and Repatriation Commission (1992) 29 ALD 594) (in which the Tribunal found it
had no jurisdiction to review a decision of the Veterans' Review Board on the assessment
of the rate of pension even though the application to the Board was out of time); Re BHP
and Minister for Resources (1993) 30 ALD 173 (by an oversight, an application omitted to
name a participant in its application for a combination certificate under s 20(1) of the
Petroleum Resource Rent Tax Assessment Act 1987 (Cth), thereby not meeting the 50%
equitable interest threshold for applications. The Minister, however, had considered the
application and refused it. The Tribunal found it had no jurisdiction to review the refusal).
245 (1994) 30 ALD 713.
52
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Volume 26
Tribunal (SSAT) purported to review decisions by two delegates of the Secretary of the
Department of Social Security to raise and recover an overpayment. The Tribunal
claimed jurisdiction despite the fact that an Authorised Review Officer (ARO) had
refused to review the decision. That refusal was based on the mistaken belief that the
legislation making ARO review mandatory did not apply to Reid's application. 246 The
AAT acc~pted the principle that, because there was a decision and it purported to have
been made in the exercise of Eower conferred by an enactment, the Tribunal had
jurisdiction to review the matter. 247
The Full Federal Court, but not the Tribunal, adopted a similarly robust view of the
Tribunal's jurisdiction in Secretary, Department of Social Security v Alvaro. 248 The Court
found that a refusal to accept jurisdiction by the Tribunal was misconceived. The
Tribunal had taken a narrow view of "decision" in ss 3i3) and 25 of the AAT Act as
modified by s 1283 of the Social Security Act 1991 (Cth).2 9 This led the Tribunal to find
that because the decision-maker who had purported to make the original decision was
not a duly authorised delegate there was no reviewable decision and the Tribunal had
no jurisdiction. The Court held that whatever the form of the error the Tribunal was
not denied jurisdiction since "[t]he purpose of a review ... is to allow the reviewing
authority to correct error and substitute a new decision where error is detected". 250
The Tribunal adopted an apparently less robust view in Re Secretary, Department of
Social Security and Sinclair. 251 The Tribunal declined to exercise jurisdiction over a
decision that there had been an overpayment, a decision which had been referred to
the Director of Public Prosecutions for prosecution. The applicant was convicted and
an order for recovery had been made under s 26 of the Proceeds of Crime Act 1987
(Cth). Sinclair later applied to the SSAT which reviewed "the decision to recover" the
amount and decided that the amount should be waived. The Tribunal refused
jurisdiction on the basis that the Department had taken no steps to effect recovery; the
source of the authority to make the decision to recover was the Proceeds of Crime Act
1987 (Cth), and enforcement of the order was to be found in rules applied by the
sentencing court. Hence, the decision could not be regarded as one made by the
Secretary of the Department of Social Security since it was neither made "under this
Act" for the purposes of s 1283 of the Social Security Act 1991 (Cth), nor could it be
regarded as a decision "made in the exercise of powers conferred, or that may be
conferred, by another enactment having effect under" the Social Security Act 1991
(Cth).252 Interestingly, the Tribunal had commenced its reasons by saying that even
though the SSAT's decision was a nullity that did not detract from the Tribunal's
jurisdiction to review and cited Brian Lawlor as authority. The Tribunal clearly
246
247
248
249
250
251
252
Social Security Act 1991 (Cth), s 1247(1) (as it was then).
Re Reid and Secretary, Department of Social Security (1994) 30 ALD 713 at 718-719.
(1994) 34 ALD 72.
Social Security Act 1991 (Cth), s 1283 provides that the AAT may only review a decision
which has been reviewed by the Social Security Appeals Tribunal. "Decision" in the Social
Security Act 1991 (Cth) has the same meaning as it does in the AAT Act (Social Security
Act 1991 (Cth), s 23(1)).
Secretary, Department of Social Security v Alvaro (1994) 34 ALD 72 at 79.
(1992) 25 ALD 17.
AAT Act, s 25(1).
1998
A Wavy Line in the Sand
53
recognised this was an example of one of those rare cases in which the decision could
not even remotely be sourced to legislation administered by the relevant Minister.
A more troubling decision is Re Secretary, Department of Social Security and
Frankos. 253 The SSAT again purported to review a decision over which it apparently
had no jurisdiction. In August 1981, a delegate of the then Director-General of Social
Security cancelled Frankos' pension because he did not meet the residency
requirements and was, therefore, no longer eligible for age pension. In 1984 Frankos
appealed to the SSAT which recommended254 that the delegate's decision be set aside.
Departmental records did not indicate a response to this recommendation but
Frankos's pension was not restored. In 1992 Frankos again sought review by the SSAT,
which by now had determinative powers. The SSAT set aside the 1981 decision and
directed that Frankos be back-paid pension from 1981 until he received an age service
pension in 1991.255 Two separate SSAT panels had found in favour of Frankos on the
question of eligibility. Despite those findings, the Tribunal denied it could review the
1992 decision on the ground that the SSAT in 1984 was functus officio and hence the
SSAT in 1992 lacked jurisdiction to review.
The Tribunal attempted to reconcile the cases by drawing a distinction between
decisions described as ultra vires and those which were a nullity.256 The distinction was
based on a contrast between decisions tainted with procedural irregularity (such as
lack of notice) and decisions which were made without power. That dichotomy might
have satisfied the Tribunal but it was not one made in Brian Lawlor, ("there are no
degrees of nullity") 257 nor is it one which can adequately explain the case law.
Suggested solutions
In circumstances in which the cases cannot be reconciled, what guidance is possible for
administrators and the legal profession? An answer may be found from a consideration
of the body which is the most appropriate to undertake review. It is not an option to
leave decisions such as Frankos unreviewed. The uncertainty about eligibility was
apparently due to departmental inefficiency. Frankos may have been eligible for
pension for the 10 year period. If so, he should have been paid. If not, he should have
been advised of the legal inhibitions on his right to recover.
The issue is whether those in Frankos' position should be restricted to taking the
more daunting and less fruitful ADJR Act route to establish eligibility? It was to avoid
just such a burden that the Kerr Committee recommended the establishment of a merit
review body with general jurisdiction. A similar consideration persuaded the majority
in the Brian Lawlor cases to opt for a broad view of the Tribunal's jurisdiction, albeit the
decision may have been made without lawful authority. The clear advantages of being
able to finalise the majority of matters at the Tribunal are that it avoids the cost to the
253 (1993) 32 ALD 271.
254 At that time, the SSAT only had power to recommend a change to decisions made by the
Director-General.
255 The age service pension under the Veterans' Entitlements Act 1986 (Cth) is the equivalent
of an age pension under the Social Security Act 1991 (Cth) and its predecessor, the Social
Security Act 1947 (Cth).
256 A distinction said to have been made earlier in Australian National University v Burns (1982)
64FCR 166.
257 Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1 at 21.
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applicant of resorting to the Federal Court and, in all but exceptional circumstances,
enables the Tribunal to perform the normative function for which it was established.
Other reasons which favour the adoption by the Tribunal of a broad view of its
jurisdiction are that it is the adjudicative body which most nearly replicates the powers
of the decision-maker, and is the more likely, as a consequence, to be attuned to the
constraints on public administrators. Given those advantages, the AAT should not
shirk its review responsibilities by making the kind of indefensible distinctions
apparent in the existing cases and hence perpetuating the notion of a wavy line in the
sand. Such jurisdictional limitations as are appropriate can more properly be found in
concepts other than invalidity. Acceptance of that view would avoid the ambivalence
which has been developing in reasons statements of the Tribunal when it makes a
tentative finding that it has no jurisdiction, and then goes on to make findings on the
substantive issue. 258
CONCLUSION
This article started from the viewpoint that the original conception of Federal
administrative law was of a unified system implementing common principles in both
administrative and judicial review. What has emerged is that despite the superficial
legislative similarity in the statutory jurisdictional tests for the Federal Court and the
AAT, it is neither desirable nor possible to perpetuate that myth. Rather, the time has
come to acknowledge that the jurisdictional hurdles in each jurisdiction serve different
functions and that each should develop its own jurisprudence, that each needs to
fashion its own identity, and that each needs to escape, to a differing degree, from the
"brooding presence" of Bond. 259
258
259
For example, see Re BHP and Minister for Resources (1993) 30 ALD 173; Re Franke and
Commissioner of Patents (1993) 29 ALD 801.
A Robertson, "Remedies, Present and Future" (1995) 44 Admin Review 85 at 88.