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MLL324 Admin Law Topic 2.1

Merits v Judical Review The AD(JR) Act - what is a decision?
by Martin Hardie on 26 February 2015

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Transcript of MLL324 Admin Law Topic 2.1

The nature of a court's judicial review jurisdiction
The AD(JR) Act
Federal &
Constitutional Review
Judiciary Act
Common Law
Constitution Sections 73 and 75
Merits v Judicial Review
Amenability &
Appeal or Review
of an administrative character
made under an enactment
AD(JR) Act

What decsions are reviewable?
Bond's case

A Decision?
•A ‘decision’ will generally be ‘required or authorised by a statute’ and ‘substantive, final and operative’ in a practical sense.
A conclusion that forms ‘a step along the way in a course of reasoning leading to an ultimate decision’ is not a decision.
A factual finding made as a step in the reasoning leading to an ultimate decision may be a ‘decision’ if the relevant statute requires or authorises the decision-maker to make a finding or ruling on that point before the ultimate decision is made.
Green v Daniels (1977) 13 ALR 1 [CB p.41 ff]
Appeal or Review
Appeal rights are always creatures of statute.
On an appeal the appeal court may substitute its own decision for the one under review.
Both appeals and Judicial Review can only be based upon errors of law (not fact).
JR is a supervisory jurisdiction in which courts uphold the rule of law by keeping inferior courts, tribunals and decision makers within their powers.

A court exercising Judicial Review can only remit the decision to the decision make to be made in accordance with law.
Attorney-General (NSW) v Quin (1990) 170 CLR 1

Justice Brennan described the role of judicial review as:

- A duty that involves the declaration and enforcing of the law affecting the extent and exercise of power

-when challenged

- it extends to pronouncing on the validity of executive action on the ground that it exceeds constitutional power, and

- it extends to judicial review of administrative action

- beyond the power conferred by statute or

- by the prerogative or

- alleged to be otherwise in disconformity with the law.
The Merits?

Judicial Review does not involve a decision on the ‘merits’ of the case, i.e. its justice, but only its legality – its conformity with the law.

Courts do not look at merits – that is the job of administrative decision makers and/or tribunals
Drake v Minister for
Immigration and
Ethnic Affairs
(1979) 2 ALD 634, 46 FLR 409
Full Federal Court
What did the Court say?
Attorney-General (NSW) v Quin
(1990) 170 CLR 1
The court’s duty in reviewing administrative action does not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power.

There is no power to review administrative action simply to cure administrative injustice or error.  

The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
Drake concerned the powers of the AAT and the role of a judge sitting as President of the AAT:

“The function of the Tribunal is, as we have said, an administrative one. It is to review the administrative decision that is under attack before it. In that review, the Tribunal is not restricted to consideration of the questions which are relevant to a judicial determination of whether a discretionary power allowed by statute has been validly exercised.”
In distinguishing the role of a Court in conducting judicial review from that of an administrative (or merits review) the Full Court in Drake said:

“Except in a case where only one decision can lawfully be made, it is not ordinarily part of the function of a court either to determine what decision should be made in the exercise of an administrative discretion in a given case or, where a decision has been lawfully made in pursuance of a permissible policy, to adjudicate upon the merits of the decision or the propriety of the policy.

That is primarily an administrative rather than a judicial function … it is the function which has been entrusted to the Tribunal.
In a merits review case, the Full Court in Drake said:

“The question for the determination of the Tribunal is … whether that decision was the correct or preferable one on the material before the Tribunal.”

That means that each stage of merits review the person or tribunal undertaking the review hears the case on all of the material before the original decision maker and any relevant new material.

They have to decide on that material whether the decision under review was correct or preferable.
A correct or preferable decision?
In Drake the conjunction used was OR, not AND.

The Drake formula is that cases before the tribunal fall into either of two categories:

In some instances only one decision is open on the facts or the law: in such a case the tribunal decides if the correct decision was made.

In other instances there is a discretion - a choice open to the decision maker - as to which decision to make: there it is for the tribunal on review to decide which is the preferable decision.
The Tribunal “is obliged to act judicially, that is to say, with judicial fairness and detachment.

In its review of an administrative decision, it is subject to the general constraints to which the administrative officer whose decision is under review was subject, namely, that the relevant power must not be exercised for a purpose other than that for which it exists..., that regard must be had to the relevant considerations, and that matters “absolutely apart from the matters which by law ought to be taken into consideration” must be ignored…”
Tribunals must act 'judically'
Karen Green, 16 year old school leaver who ought unemployment benefits under s 107 Social Security Act 1947 (Cth) in December 1976.

Karen spoke to the CES a number of times and was told that would not qualify for a benefit until the commencement of the next school year - Feb. 1977.

No general discretion was given to the Director General of Social Security or their delegates under the Social Services Act 1947 (Cth).

Specific criteria was laid down in s107 of the Act. The Act provided that an applicant "shall be qualified to receive an unemployment benefit" if they could meet the criteria. Relevantly, the Act provided that a person would so qualify if the DG was satisfied that they were "unemployed" and further, s107 (c)(i) and had "taken reasonable steps to obtain work".

Green made out a declaration stating that she would not be undertaking full time education or training in the next year and she had make efforts to seek employment.

Following the application of an administrative rule in the departmental Unemployment and Sickness Benefit Manual, Green was denied the benefit.

The Manual stated that 'as a general rule' school leavers would not be eligible until the end of the school vacation.

The manual had been written in light of a concern that the Act was open to abuse from school leavers who returned to studies after the school vacation.
Did the court grant the remedy sought by the Green? Why/not?

What lessons can we learn about the use of policy from the case?

How does the case illustrate the limited role of Judicial Review?

Following the case how do you expect the D-G would have re-determined Green’s application?
Section 5(1) of the ADJR Act provides that ‘a person who is aggrieved by a decision to which this Act applies … may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision’ on a number of enumerated grounds.

Section 3(1) of the Act provides that a ‘decision to which this Act applies’ is ‘a decision of an administrative character made … under an enactment’.

Section 3 (2) In this Act, a reference to the making of a decision includes a reference to:
(a) making, suspending, revoking or refusing to make an order, award or determination;
(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d) imposing a condition or restriction;
(e) making a declaration, demand or requirement;
(f) retaining, or refusing to deliver up, an article; or
(g) doing or refusing to do any other act or thing; and a reference to a failure to make a decision shall be construed accordingly.
and a reference to a failure to make a decision shall be construed accordingly.
(3) Where provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law, the making of such a report or recommendation shall itself be deemed, for the purposes of this Act, to be the making of a decision.
Administrative Decision
(Judicial Review) Act
Bond's case
• The Broadcasting Act required that the holder of a broadcasting licence be ‘a fit and proper person’ to hold such a licence.
• The Australian Broadcasting Tribunal (‘ABT’) found that companies controlled by Alan Bond were not a ‘fit and proper persons’ to hold broadcasting licences, principally on the grounds that Bond himself was not a fit and proper person.
• It therefore revoked the broadcasting licences held by the companies.
The decision to revoke the companies’ licenses was clearly a ‘decision’ for the purposes of the ADJR Act, but were there grounds
for reviewing the basis for the ABT’s ultimate finding under the AD(JR) Act (that is the finding that Bond himself was not a fit and proper person)?

What is a ‘decision’?

What is ‘conduct’?
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Mason CJ
at 337: ... a reviewable “decision” is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment. ...

If “decision” were to embrace procedural determinations, then there would be little scope for review of “conduct”, a concept which appears to be essentially procedural in character. To take an example, the refusal by a decision-maker of an application for an adjournment in the course of an administrative hearing would not constitute a reviewable decision, being a procedural matter not resolving a substantive issue and lacking the quality of finality. Then it is the “conduct” of the hearing in refusing an adjournment that is the subject of review. To treat the refusal of the adjournment in this way is more consistent with the concept of “conduct” than with the notion of “decision under an enactment”.
at 339: It follows from my interpretation of the word “decision” that the Federal Court had jurisdiction under s 3(1) of the ADJR Act to review the tribunal's finding that the licensees were no longer fit and proper persons to hold their broadcasting licences under the Act. Although that decision was an intermediate determination made on the way to deciding whether to revoke or suspend the licences or to impose conditions on them, it was a decision on a matter of substance for which the statute provided as an essential preliminary to the making of the ultimate decision.

On the other hand, the tribunal's conclusion that Mr Bond would not be found to be a fit and proper person to hold a licence was not a determination for which the Act provided and was no more than a step in the tribunal's reasoning on the way to the finding that the licensees were no longer fit and proper persons to hold their licences. True it was an essential step in the reasoning by which the tribunal chose to support its determination concerning the licensees, but this circumstance is not enough to invest the conclusion with the characteristics which would qualify it as a reviewable decision. I would reject the notion accepted in the Federal Court that the finding adverse to Mr Bond was a “decision… not authorized by” the Act within the meaning of s 5(1)(d). For the reasons already given, the finding was not relevantly a “decision”.
Australian Broadcasting Tribunal v Bond
(1990) 170 CLR 321 per Mason CJ
at 340: The next important question of principle is whether a finding of fact can amount to a reviewable decision and, if so, in what circumstances. The answer to the first part of this question does not present much difficulty. If the statute requires or authorises the decision-maker to determine an issue of fact as an essential preliminary to the taking of ultimate action or the making of an ultimate order, then it would follow from what has already been said that the determination of the issue of fact would be a reviewable decision. The decision that the licensees were no longer fit and proper persons to hold their licences was just such a determination.
However, in ordinary circumstances, a finding of fact, including an inference drawn from primary facts, will not constitute a reviewable decision because it will be no more than a step along the way to an ultimate determination. Of course an ultimate determination which depends upon a finding of fact vitiated by error of law or made without evidence is reviewable: see s 5(1)(f) and (h). In such a case the finding of fact may be challenged as an element in the review of the ultimate determination. But the point remains that ordinarily a finding of fact will not be susceptible to review independently of the ultimate decision. ...
at 340: The distinction between reviewable decisions and conduct engaged in for the purpose of making such a decision is somewhat elusive. However, once it is accepted that “decision” connotes a determination for which provision is made by or under a statute, one that generally is substantive, final and operative, the place of “conduct” in the statutory scheme of things becomes reasonably clear. In its setting in s 6 the word “conduct” points to action taken, rather than a decision made, for the purpose of making a reviewable decision. In other words, the concept of conduct looks to the way in which the proceedings have been conducted, the conduct of the proceedings, rather than decisions made along the way with a view to the making of a final determination.

Thus, conduct is essentially procedural and not substantive in character. Accordingly, s 3(5) refers to two examples of conduct which are clearly of that class, namely, “the taking of evidence or the holding of an inquiry or investigation”. It would be strange indeed if “conduct” were to extend generally to unreviewable decisions which are in themselves no more than steps in the deliberative or reasoning process.
at 340: Accordingly, there is a clear distinction between a “decision” and “conduct” engaged in for the purpose of making a decision. A challenge to conduct is an attack upon the proceedings engaged in before the making of the decision. It is not a challenge to decisions made as part of the decision-making process except in the sense that if the decisions are procedural in character they will precede the conduct which is under challenge. 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 was erroneous. To give an example, the continuation of proceedings in such a way as to involve a denial of natural justice would amount to “conduct”. That is not to deny that the final determination of the proceedings would constitute a decision reviewable for denial of natural justice.
at 342: It follows, therefore, that substantive decisions, findings of fact and inferences from findings of fact generally are not capable of review as “conduct” unless what is alleged is some breach of procedural requirements in the course of the conduct involved in reaching the relevant conclusion, although it is possible that they may give rise to subsequent conduct which is reviewable.
Of an Administrative Character
Decisions which are not legislative or judicial in character will generally be ‘
of administrative character’:
Burns v ANU
There is no ‘simple rule for determining whether a decision is of an administrative or legislative character’: RG Capital, cited in Central Queensland.
A decision to impose charges on all those who use a particular facility or services may be administrative in character: Aerolineas Argentinas.
Federal Airports Corporation v Aerolineas Argentinas [1997] 76 FCR 582See Tang in CB: p.57:
A determination by the Corporation in the exercise of power conferred by the Federal Airports Corporation Act to make determinations fixing aeronautical charges and specifying those by whom, and at the times at which, the charges were due and payable was held to have an administrative rather than legislative character.
The change in fees was a change in the content of the law but the nature of the decision maker indicated that it was administrative (in the execution and administration of the Act) rather than legislative.
Qld Medical Laboratory
v Blewett
(1988) 84 ALR 615
See Tang in CB: p.57:
A Ministerial decision which took effect by substituting a new table of fees for the table set out in the Schedule t the Health Insurance Act was held to have a legislative rather than an administrative character.
The following factors suggest that a decision is legislative in character (Central Queensland):

- the decision determines the content of rules of general application;
- there is parliamentary control over the decision, for example by disallowance;
- there is a requirement of public consultation;
- the decision is binding ‘in the sense of directly affecting the operating of other statutory provisions’.
The following factors suggest that a decision is administrative in character (Central Queensland):

- the decision applies rules of general application to particular cases;
- there is provision for review of the decision on the merits; and also,
- the decision is part of a ‘business undertaking … that is subject to ministerial direction’ (Aerolineas).
Gummow J focused upon how legislative decisions change the content of the law (even if it did not involve the formulation of general rules): PAL p.59
Made under
an enactment
Chittick v Ackland (1984) 1 FCR 254: a document setting out terms and conditions in a public agency was an instrument (hence included in the definition of an enactment) as it was itself made under the Act; it allowed for the making of administrative decisions; and it had the capacity to affect legal rights and obligations.
ANU v Lewins (1996) 68 FCR 87: ANU promotions policy did not allow the unilateral altering of employment contracts with staff and thus was not an instrument.
Central Queensland Land Council Aboriginal
Corporation v Attorney-General of the
Commonwealth of Australia
and State of Queensland
[2002] 116 FCR 390; 188 ALR 200
The AD(JR) Act &
Amenability to Judicial Review
Under an Enactment part 2
NEAT v AWB (2003)216 CLR 277
[CB p.67 ff]
The Statutory Scheme
NEAT Domestic
Trading Pty
AWB (International) Limited ("AWBI" [in the Act] "nominated company B") & AWB Limited.
Together: the "new grower owned and controlled Corporations Law company structure".
• ‘Enactment’ refers to a Commonwealth Act as well as ‘an instrument (including rules, regulations or by-laws) made under such an Act’ (ADJR Act, s 3).

To be an ‘instrument …made under … an Act’, a document must satisfy the following three requirements (Chittick):

- it must be made under or ‘under the authority of’ an Act;

- it must be a document under which decisions of an administrative character may be made; and

- it must be ‘of such a kind that it has the capacity to affect legal rights and obligations’.
The Wheat Marketing Act 1989 :

s.57 Control of export of wheat

(1) A person shall not export wheat unless:
(a) the [Wheat Export] Authority has given its written consent to the export of the wheat; and
(b) the export of the wheat is in accordance with the terms of that consent.

Penalty: (a) in the case of a natural person - $60,000; or
(b) in the case of a body corporate - $300,000.

(1A) The prohibition in subsection (1) does not apply to nominated company B.

(2) An offence against subsection (1) is an indictable offence.
General Newspapers v Telstra (1993) 45 FCR 164

A decision is ‘made under an enactment’ if it is ‘given force and effect by the enactment’.

Decisions made pursuant to a general statutory authorisation, and decisions made pursuant to a contract entered into between a government agency and another party will ordinarily not be ‘made under an enactment’.
(3) The Authority's consent to the export of wheat may be limited to the export of the wheat in specified circumstances, in accordance with specified requirements or by a specified person.

(3A) Before giving a consent, the Authority must consult nominated company B.

(3B) The Authority must not give a bulk-export consent without the prior approval in writing of nominated company B. For this purpose a consent is a bulk-export consent unless it is limited to export in bags or containers.

(3D) An application for a consent under this section must be accompanied by such fee (if any) as is prescribed by the regulations. The fee is payable to the Authority.

(3E) The Authority must issue guidelines about the matters it will take into account in exercising its powers under this section.
The 'Administrative Decisions (Judicial Review) Act 1977

A main purpose was to replace the old prerogative writ system with a simpler ''application for for an order of review''.

The Federal Court may grant such an order for review by making such an order as it thought appropriate: ADJR s. 11, s. 16

The ADJRA also listed or codifed the common law grounds of judicial review: s.5, s.6

The ADJRA also granted a statutory right to reasons for decisions: ADRJR s. 13

Procedure to apply for an order for review: ADJR s. 11

Grounds of Review ADJR s.6

Relief available ADJR s. 16

Power to stay the operation of a challenged decision ADJR s. 15

The ADJR does not provide for the JR of all governmental action.
Schedule 1 expressly excludes some certain categories of administrative action.

Otherwise if a decision is one to which the Act applies it is subject to judicial review under the Act.
It is strictly unnecessary to decide whether the decision was one made under an enactment (at 290)
Gleeson CJ

the judgments

The Majority
McHugh, Hayne, Callinan
AWBI does not owe its existence to the Act but is a corporation (at 296)
There is at least an intersection between public and private. A private corporation is given a role in a statutory scheme (at 297)
AWBI did not require statutory authority to give its approval to wheat export.
But no doubt an approval was given statutory significance by s. 57(3B) (at 298)
But s. 57(3B) did not confer statutory authority on AWBI to make the decision.
AWBI's power or authority was derived from the Corporations Act
(at 298)
Therefore the consent by AWBI was not a decsion under the enactment
(at 298)

It was not a public decision (at 299)
Is there an inconsistency between the statement that the decision to consent was given statutory significance and the finding that it was not a decsion under an enactment?
Because what was sought was a review of the decision on the merits (at 288- 290)
to describe the decision as purely private is innacurate (at 290)
AWBI exercised veto over decsions of a statutory authority established to manage a statutory monopoly
In legal terms it had the power to withold approval which is a condition precedent to a decsion to consent (at 290)
citing Burns v ANU: decisions made or carrying into effect Commnwealth laws are decsions made under an enactment (at 290)
A decision which takes as its focus AWBI's private interests as opposed to the public character of the WEA is an incomplete view & leaves out of the account the substance of what the statutory power does (at 291)
Kirby J

There are 2 issues:
- the nature of the decision &
- the exercise of the power
(at 307)
The AD(JR) provisions relating to a 'person aggrieved by a decision' does not point to an instiution (at 308 CB p.96)
The question is not the character of the decision maker but of the decision - the source of the power is the question (at 309 CB p99)
cites Burns: AWBI's decision on consent carries into effect a law of the Commonwealth
(at 310, p102)
the interests involved are much wider than AWBI's private interests (at 311)
where the source of the power is staute and not contract the decision is much more amenable to judicial review ( at 312 CBp112)
the statute must be read as a whole at 314 ( i.e. textually rather than literally)
the Act gave force to AWBI's decision ( at 316 CBp123)
"In Plaintiff M61 itself the court avoided the issue of the meaning of ‘officer of the Commonwealth’ As such, decisions made about asylum seekers after they have been removed from Australian territory could be amenable to judicial review by reasoning that because the processing scheme was based on statute, it did not matter that some of the processors were not government officials. As above, there is some scope for a similar argument in a regional processing context. Crock and Berg suggest that even if the decision makers were private contractors, the nexus between status determination and the exercise of the Minister’s power could still be established. Australian courts, however, have generally been reluctant to undertake judicial review of ‘public administration in private hands’. Given the ‘increasing interpenetration of the norms of publicand private law,’ it is argued that this reluctance should not last."

Case Note Out of Sight but Not out of Mind:
Plaintiff M61/2010E v Commonwealth
Hannah Stewart-Weeks SYDNEY LAW REVIEW 20011 VOL 33:831 at 845

Aronson on NEAT
Mark Aronson, Private Bodies, Public Power and Soft Law inthe High Courtpages 10-12
Aronson said that the majority gave various reasons for its conclusion, two of these reasons linked back to AWBI's nature as a private sector company focused on maximising its profits.

One of these was dealt with by Aronson earlier in the article and related to the view that the company could reasonably regard all parallel exports as constituting some sort of threat to its own profits.
The other reason was that the company's private status and profit-maximising character pulled against interpreting the Wheat Marketing Act as imposing any enforceable duty upon the company even to consider an application (to the Authority) for export approval, let alone to consider it with some undefined public interests in mind.
Aronson argues that the element common to each critical component in the majority's reasoning was not (as some have contended) that AWBI was 'private'. That fact was taken as the starting point of an inquiry which assumed (for the sake of argument) that judicial review and its principles might sometimes apply to private bodies [ at 297 [49]–[50]] .

Rather, the common element was the perceived incompatibility of a profit-maximising company having to pay regard to the interests (including the profits) of others.
One of public law's classical building blocks has been the difference in starting points between public and private bodies.

Provided they do not invade other people's rights or violate positive law, private actors are not legally obliged to consider the interests of others, let alone to further those interests.

This assumes an overall public benefit (at least in the economic sphere) from a society composed of entirely self regarding autonomous individuals.
Public authorities start with an opposite presumption, that all public power is held on the public's behalf, to the exclusion of the personal interests of those who wield it.

The assumption here is that office-holders can act without regard to their self-interests, an assumption, incidentally, which public choice theory would deny.

Each assumption has its fierce supporters and detractors, but Anglo-Australian administrative law has rarely questioned this particular building block.
Its best-known exposition appeared unchanged in the late Professor Wade's work through nine editions:The powers of public authorities are therefore essentially different from those of private persons. A man making his will may, subject to any rights of his dependants, dispose of his property just as he may wish. He may act out of malice or a spirit of revenge, but in law this does not affect his exercise of his power. In the same way a private person has an absolute power to allow whom he likes to use his land, release a debtor, or, where the law permits, to evict a tenant, regardless of his motives. This is unfettered discretion. But a public authority may do none of these things unless it acts reasonably and in good faith and upon lawful and relevant grounds of public interest. … The whole conception of unfettered discretion is inappropriate to a public authority, which possesses powers solely in order that it may use them for the public good.
The word here italicised is axiomatic, just as it was in NEAT Domestic — the imposition of public law restraints upon private actors is axiomatically 'inappropriate '.

By contrast, European legal systems have long restrained private rights-holders with variants of an 'abuse of rights' concept, a concept unknown to the common law.

The trouble is that a binary divide between utter selfishness and saintly altruism cannot work in a world where power and the institutions which wield it are hybridised, being neither wholly private nor public.

The imposition of other-regarding duties upon public actors, and the denial of such duties in the case of private actors, assumes that public actors perform only public functions, and that private actors perform only private functions.

Private bodies performing public functions simply fail to accord with the traditional assumptions.

Even if self-interest is the very essence of an ideal-type private body, it makes no sense to conclude that any governmental functions it might also be exercising are therefore immune from public law considerations.Hybrid bodies fit neither the public nor the private ideal types.

One could add that even if the distinction were to work as a merely indicative criterion of the availability of judicial review's remedies, it could not work as any sort of criterion for determining which one or more of judicial review's principles should restrain the exercise of public power by private bodies.
Tang v Griffith University
(2005) 221 CLR 99

Even if AWBI's commercial focus made that company an inappropriate repository of a duty to consider the commercial interests of others, that was no reason to remove the company entirely from the regime of judicial review and its remaining principles.

AWBI had more than just the ordinary power of a company to say 'no' to a question from the Authority.

It had more power than the Authority itself, which had no relevant function without the company's consent.

Whether the Wheat Marketing Act granted or merely recognised that power was a distinction relevant only to the issue of ADJR coverage. It was not put forward as the test for determining the availability of common law judicial review.

It seems that the common law's judicial review was held to be unavailable because the Court did not envisage any middle ground between utter selfishness and complete altruism.

If NEAT Domestic is disappointing, therefore, it is not because it asked the wrong question, but because it posed the wrong test for answering it.

The real question for common law judicial review should be whether AWBI was exercising public or private power.

That is how the English cases frame the issue, although NEAT Domestic framed it in terms of the distinction between self-centred and altruistic bodies.Framed so obliquely, one should not be too surprised that the question received an answer so plainly wrong.
Joint Judgement:

[89] The determination of whether a decision is "made ... under an enactment" involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be "made ... under an enactment" if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice.
The determination of whether a decision is "made … under an enactment" involves two criteria:

first, the decision must be expressly or impliedly required or authorised by the enactment; and,
secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and

in that sense the decision must derive from the enactment.

A decision will only be "made … under an enactment" if both these criteria are met.
It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and

it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise.
Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question.
Affection of rights or obligations derived from the general law or statute will suffice.

Aronson on Tang
Aronson says that the majority's view of the first component is welcome.

(first, the decision must be expressly or impliedly required or authorised by the enactment)

Their Honours said that it is easily satisfied, because even if the relevant Act did not 'require' the decision, or explicitly authorise it, it will frequently be appropriate to imply that a decision was

For example, a decision to make a contract is sufficiently 'authorised' by an Act which gave its maker contractual capacity.

In that sense, statutes 'authorise' the contracts of all statutory authorities and all companies whose corporate status derives from statute. However, a statutory capacity to decide something is only half the battle.
The second step is to ask whether the 'decision ... itself' has created, altered or imposed legal rights, duties or liabilitites.

The existence of this second step is not immediately obvious from ADJR itself, but Aronson argues that Tang's implication of some sort of extra requirement was readily understandable.

As we will see there is an argument that Tang has imported aspects of the rules regarding standing to seek judicial review (topic X) into the definition of a decision to which the Act applies ….
Go back to ADJRA & Para 90 Tang:

The character of the ADJR Act as a law of the Commonwealth which confers federal jurisdiction to hear and determine applications for review supports the construction of the critical phrase "decision ... made ... under an enactment" in these reasons.

Reference has been made earlier in these reasons under the heading "The definition" to the importance in construing this phrase of the expression in s 76(ii) of the Constitution "arising under any laws made by the Parliament". There must be a "matter" so arising.

The meaning of the constitutional term "matter" requires some immediate right, duty or liability to be established by the court dealing with an application for review under the ADJR Act.

A recent example of the practical operation of the constitutional requirements of a "matter" is provided by Re McBain; Ex parte Australian Catholic Bishops Conference. ...


SECT 5 Applications for review of decisions
(1) A person who is aggrieved by a decision to which this Act applies ….
Related to this is another argument that there is an inconsistency between Tang and the fact that in cases of natural justice or procedural fairness, rights and interests other than legal rights and interests can be give rise to judicial review. For example the notion of legitimate expectations ranges wider than legal rights and interests.

Aronson deals with these two arguments in his article.
Firstly at page 124 of his article he states:

It is submitted that the requirement that the decision should 'itself' affect rights or obligations was not intended to be taken literally. Whether it is a decision to make a contract or one made under an existing contract, it is submitted that the decision will 'itself' have the relevant effect if it triggers statutory consequences with impacts in the realm of legal rights or obligations.
What does he mean by not taking the requirement that the decision should 'itself' affect rights or obligations literally?

I think it is in part related to the distinction between substantive and procedural rights? This relates back to the question of a 'matter'.

And also the distinction between contractual and public decisions.

To understand this we need to backtrack in his analysis:

If ADJR had extended to the contractual decisions of all companies incorporated under statute and to all statutory authorities, there would have been a huge disconformity between the scope of judicial review under ADJR and the common law.

English judicial review has extended to private bodies so far as they are exercising public power (the NEAT Domestic problem), an extension which has shifted focus from the nature or status of the decision-making body to the nature of its power.

That in its turn has led to decisions rejecting judicial review coverage of government's contractual decisions, mainly (if not solely) because their power is consensual.
The High Court has attempted to keep the scope of ADJR and common law judicial review roughly in parallel. It is that attempt which underpinned the joint judgment's explanation of why ADJR provides no coverage to contractual decisions [Tang (2005) 221 CLR 99, 128–9 [81]–[82]].

The judgment explained that a decision to make a contract has no binding consequences until the counterparty consents, at which point the consequences are provided by the general law and not by statute.

Similarly, decisions under existing contracts generally owe their force only to the general law of contract, and not to statute.

The judgment emphasised the consensual nature of contractual power, in contrast to a statutory power unilaterally to affect another's rights or obligations.62 [Tang 129 [82].]

There is an obvious parallel with the common law's reasons for refusing judicial review of contractual decisions.
Aronson goes on to say that:

(and this might be the crux of the difference I think between the English cases and the Australian approach under the AD(JR)A)

P 14 -15: What counted (in Tang) was not whether the University was exercising power that could be called 'public', but whether that power's impact could be traced to a statute or subordinate legislation.

In other words, what mattered was that the University's academic misconduct code lacked statutory force.
The code could have been brought into force as subordinate legislation, and if it had, then ADJR would have provided coverage

(Aronson suggests that if this was the case also Tang is as such no obstacle to common law judicial review. )
This appears reasonably clearly from the following passage:

Nor is it to the point that the Council, rather than exercise its powers of delegation to the Committees involved, might have exercised its power to make university statutes or rules.

The exercise of one rather than another concurrent power available to the University is insufficient to attract the Review Act [Queensland's equivalent of ADJR] to decisions later made by the Committees.

The decisions of which the respondent complains were authorised, albeit not required, by the University Act.

The Committees involved depended for their existence and powers upon the delegation by the Council of the University under ss 6 and 11 of the University Act.

But that does not mean that the decisions of which the respondent complains were 'made under' the University Act in the sense required to make them reviewable under the Review Act.

The decisions did not affect legal rights and obligations. They had no impact upon matters to which the University Act gave legal force and effect.

The respondent enjoyed no relevant legal rights and the University had no obligations under the University Act with respect to the course of action the latter adopted towards the former [Tang 132 [95]–[96]].
Aronson’s argument is that if his reading of Tang is correct,

what was in issue was not contract,

nor some distinction between private and public powers

but that the University's academic misconduct code lacked statutory force

– this is what made all the difference.
In one sense, that reading is obvious because Tang's issue was whether the challenged decision was made 'under an enactment' for ADJR purposes.

However, the joint judgment's conclusions in the second paragraph of the above quotation were also relevant to common law judicial review in the exercise of federal jurisdiction.

In the Commonwealth context, the Constitution restricts the exercise of judicial power to the resolution of 'matters', a term which requires the presence of 'some immediate right, duty or liability to be established by the determination of the Court.

'Tang has come in for some fierce criticism on the ground that it effectively puts both statutory and common law judicial review off-limits for litigants without an existing or putative legal right, duty or liability.
The argument is that Tang has narrowed the concept of 'matter' by ruling that 'legal rights, duties or liabilities' no longer include 'interests' falling short of those three terms.

(This brings into lay the standing and procedural fairness issues mentioned earlier which we will soon get to.)

Aronson refers to para [90] of Tang referred to above:

[90] The character of the ADJR Act as a law of the Commonwealth which confers federal jurisdiction to hear and determine applications for review supports the construction of the critical phrase "decision … made … under an enactment" in these reasons. Reference has been made earlier in these reasons under the heading "The definition" to the importance in construing this phrase of the expression in s 76(ii) of the Constitution "arising under any laws made by the Parliament". There must be a "matter" so arising. The meaning of the constitutional term "matter" requires some immediate right, duty or liability to be established by the court dealing with an application for review under the ADJR Act. A recent example of the practical operation of the constitutional requirements of a "matter" is provided by Re McBain;Ex parte Australian Catholic Bishops Conference.. As a State law, the Review Act does not have the constitutional underpinning which controls the interpretation of the ADJR Act. However, as noted at the beginning of these reasons, s 16(1) of the Review Act explicitly links the text and structure of that statute to the ADJR Act.
He then goes on to state:

The critics conclude from this that Tang undermines the liberalisation of the rules about standing to sue, and that it undermines the expansion of natural justice to realms where (as in Kioa) the subject has no legal rights or interests to protect.

It is submitted that these criticisms have missed their proper target.

(as background – standing is available to sue to protect more than strict legal rights and interests; we will come back to this in Topic 5 – the rules of natural justice also extend to protect what have been termed legitimate expectations which are wider than strict legal rights and interests, Topic 4)

Taking the standing rules first, it is submitted that those without legally recognisable rights, duties or liabilities will still have standing to sue if they are relevantly aggrieved or affected.

Tang explicitly acknowledged that the cases on standing are no longer rights-focused.[ (2005) 221 CLR 99, 117 [44]]
Kirby J's dissent alleged that the majority's view of a 'matter' meant that there was no point in having liberalised standing rules, because a case would never get to that point if a case with interests less than rights would never meet the new test of 'matter'.[144 [135], 152 [152].]

With respect (says Aronson), that is correct only if one were to treat the requirement that there be some legal right, duty or liability as one which falls only upon the subject who challenges the government party's decision or conduct.
Aronson’s first point is that these rights need not be ‘personal’ to the applicant:

Despite some post-Tang confusion as to whether that was the majority's intent, it is submitted that the requisite rights, duties or liabilities need not belong to or be imposed upon the subject who is challenging the government action.

It will remain sufficient to constitute a 'matter' if the subject is challenging a government party for breach of a legal restriction upon the latter's capacity or powers, (although the challenge may have to be by common law judicial review or even a non-supervisory remedy rather than by review under ADJR).

For example, a government party purporting to enter into a contract in breach of a legislative restriction can still be not a decision under an enactment for ADJR purposes.
What Aronson is raising here are two issues, which will become clearer as we move through the course, but it is important for us to highlight them now.

The purpose of judicial review is for the court’s to supervise government by keeping it within power.

This does not mean that the person who goes to court and seeks to have the courts exercise this function must themselves have a direct legal right or interest that is affected.

What is in issue is government acting beyond its legal rights. This is the standing issue.

NB: Standing extends to a special interest eg a conservation group may have standing to challenge some action affecting the environment.
The second point he makes is that a decision to enter into a contract that is prohibited by legislation may not be a decision at all for the purposes of the ADJR.

We need to put this to one side until we start to think about jurisdictional error.
Aronson then goes on to refer to the case of Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 decided nearly 15 years before Tang.

There the High Court granted declaratory relief to a person and his company who were acknowledged to have no relevant legal rights.

The Commission was held to have breached its natural justice obligations towards the applicants.

Without giving them any warning, let alone a chance to defend themselves, the Commission had been highly critical of the applicants in a report it had sent to Parliament, but its Act protected it from defamation liability.
Brennan J said that:

the Commission's report did not affect the [applicants'] … rights or liabilities and it did not subject their rights or liabilities to any new hazard.

There has been no exercise of a statutory power the setting aside of which would change the [applicants'] legal rights or liabilities.

The only, though significant, way in which the Report affected the interests of the [applicants] was by damaging their reputations. [582–3]
The critical factor for Brennan J was whether the Commission was exercising statutory power.

Brennan J had no doubt about the applicants' entitlement to declaratory relief, because the Commission was exercising statutory power, and:

the broad purpose of judicial review is to ensure that statutory authority, which carries with it the weight of State-approved action and the supremacy of the law, is not claimed for or attributed to decisions or acts that lie outside the statute. [Ainsworth (1992) 175 CLR 564, 584–5.]
His Honour was undeterred by the consideration that anyone could write a report, albeit without an immunity from defamation liability.

For Brennan J, therefore, judicial review's primary job was to enforce the statutory limits to the exercise of public power.
His Honour there insisted that the court's role in judicial review was 'the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power', regardless of whether that might achieve the correction of 'administrative injustice or error' [35–6].

The focus on illegality would in his Honour's view take precedence over a focus on rights or interests:

The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise.
The 'consequence' to which his Honour referred in Quin was, with respect, fairly obvious — particularly in light of the liberalisation of the rules as to standing and Kioa's extensions to the scope of natural justice.

Thus: There can still be a 'matter', therefore, even though the relevant government decision impacts only on mere interests.

Put another way - there can be a matter if what is in issue is a repository of power exceeding its statutory power.

The second major concern raised by Tang's critics relates to the future of natural justice.

Here Aronson says that the critics are closer to the mark, but still not directly on-target.

The joint judgment said that 'under private law',[(2005) 221 CLR 99, 131 [91]] Ms Tang's legal relationship with the University was unaffected by her expulsion, because she had 'at best a consensual relationship, the continuation of which was dependent upon the presence of mutuality'. [(2005) 221 CLR 99, 131 [91]]
The majority's position is that her expulsion changed no legal rights or obligations as between the parties.

In other words, Ms Tang had no private law right to delay that withdrawal, and the University had no private law obligation to maintain its consent.

If it had been otherwise and either she or the University had private rights or obligations affected by the expulsion decision, there would have been one less hurdle to the conclusion that it was a decision 'under an enactment'.
The joint judgment then stated:

It may, for the purposes of argument, be accepted that the circumstances had created an expectation in the respondent that any withdrawal from the PhD candidature programme would only follow upon the fair treatment of complaints against her.

But such an expectation would create in the respondent no substantive rights under the general law, the affecting of which rendered the decisions she challenged decisions made under the University Act.

What was said by Kiefel J and Lehane J on the point in Lewins, and subsequently by this Court in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam, supports that conclusion. [(2005) 221 CLR 99, 131–2 [92].]

The problem here is that the phrase “the circumstances had created an expectation” raises the spectre of legitimate expectations in the field of natural justice. It is the source of much confusion concerning Tang.
Aronson says that the above passage is difficult.

Importantly he points out that Lam characterised an 'entitlement' to natural justice protection as a 'procedural' right, rather than a 'substantive' right.

If we assume the same distinction in Tang, therefore, the University's 'promise' (by way of its academic misconduct code) of fair treatment neither impaired nor regulated its capacity to withdraw its consent to their relationship at any time.

If their relationship had been restrained by substantive rights or obligations, then the validity of any expulsion decision might well have depended upon the University either honouring its code or giving fair warning of impending dishonour.

The issue then seems to be that in Tang's case there was no substantive right at issue and as such the procedural right of being given a fair hearing had nothing on which it could be fixed, nothing it could latch onto.
Go back:

Aronson p7

Two conclusions are inevitable.

First, Lam's distinction between the 'procedural' protections of natural justice and 'substantive rights' meant that even if one were to speak of an 'entitlement' or 'right' to natural justice, it would still be something different from a 'substantive' right.

That is really only a semantic point, but it will be submitted that it must be borne in mind when reading Tang.

The second conclusion is that a decision-maker's promise can generate an expectation sufficient in itself to trigger the procedural 'right' to natural justice, even though the subject has no substantive rights at stake.

(have I contradcited this in the previous slide?)

That too must be borne in mind when reading Tang, which adds a worrying proviso.
…. And back to where we were in the section headed disentangling Tang:

It was one thing for Lam to say that bureaucrats' promises generate only procedural protections.

Tang took this a step further by saying that they generate nothing at all, unless they are made:

-to a rights-holder, or

-made by an obligation-holder, or both.

Tang treated bureaucrats' promises of procedural fairness as effective only in the context of decisions affecting substantive rights or obligations.

(So I didn't contradict myself in the case of Tang!)
In effect, if the source of natural justice is merely a bureaucrat's promise, there must be something else that the promise protects or restricts

— something which conforms to the constitutional requirement of a right, duty or liability.

One of Tang's results, therefore, is the contrast between the scope of procedural fairness in statutory and non-statutory settings.
It is argued that in statutory settings, Kioa and Ainsworth remain unaffected by Tang, so that a statutory power can still be conditioned upon the observance of procedural fairness even where
there are no rights to protect.

In non-statutory settings, however, natural justice cannot exist by itself — it needs something 'substantive' to protect or enforce.

If the procedural restraints of natural justice cannot exist in a vacuum, their context must be the restraint of 'power'.

In the judicial review context, that appears to mean the decision-maker's power unilaterally to alter (and perhaps even to create) legal rights or obligations.

Tang's exclusion of consensually based power can be taken to limit the scope of judicial review.

Although it should not be taken to deny the availability of natural justice protections on a contractual basis.

Nor should Tang be taken as rejecting judicial review of the exercise of any other sort of non-statutory public power.
The joint judgment indicates that Ms Tang would have lost a common law judicial review application in the exercise of federal jurisdiction if she had been an ANU student.

Had the ANU's hypothetical university code been 'hard law', it would have constituted an 'obligation' upon the university sufficient to satisfy the constitutional requirement of a 'matter', and been judicially enforceable even if Ms Tang lacked any 'substantive' rights.

Had the ANU's hypothetical university code been 'soft law' (as in the case of the Griffith University code), it would have failed to engender substantive rights or obligations sufficient to meet the constitutional requirement of a 'matter'.
In other words, soft law is not binding as such, even though it can generate the procedural obligations of natural justice if there are (no?) other substantive rights or obligations to protect or enforce.

Those substantive rights or obligations can be sourced to statute or contract ...

Aronson p23-24:

Lam was right to deny judicial enforcement of government-induced expectations regardless of considerations of unfairness, but that is because judicial review's remedies are procedural, avoiding a usurpation of the decision-maker's powers.

It is not because statute is the only way in which public power can be created or confined.
Tang's result was entirely predictable because if ADJR's restriction to statutory decision-making is to mean anything, then the odds are that it excludes coverage of government's commercial powers so far as these are truly consensual.

Tang's fault, though, was in failing to see the realities of public power behind a consensual, non statutory facade.
Consensual power should not be subject to judicial review, not because it is non-statutory, but because it is not public.

The classic image of a contract is as an instrument of exchange, whilst the classic image of judicial review is the enforcement of express or implied legal rules, where 'rules' are seen as commands.

However classical imagery can sometimes be misleading.

Some government contracts are in reality rules, and the same is true of some non-contractual relationships adopting a seemingly consensual form.
Aronson states that:

The characterisation of Ms Tang's relationship with her former university as merely consensual is nothing short of breath-taking.

His article also discussed another concern flowing from Tang, which is the reviewability of exercises of public power which are in 'breach' of soft laws, constituted by practice manuals, procedure pamphlets, guidelines and so forth.

Tang's implication that a soft-law right or obligation is never sufficient to satisfy the constitutional requirement of a 'matter' is unsatisfying because it avoids the principal question, which is whether there has been an exercise of public power in breach of legal restraints.

This is something we can take up in the seminars
Unless one were to subscribe to the view that judicial review cannot police the exercise of non statutory power, one should recognise soft law's potential relevance as a source of restraints upon the exercise of public power.

Just as the common law can be a source of public power, so too can it be a source of restraints upon public power.
In any event, there was undoubtedly a real dispute between the parties as to whether the University had adhered to its misconduct code.

That would probably have been a sufficient basis for an application to a State Supreme Court for declaratory relief, and it is to be hoped that Tang will create no constitutional impediment to a similarly broad declaratory power being exercised in federal jurisdiction.
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