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Published online by Cambridge University Press: 24 January 2025
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”. 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.
1 ADJR Act, ss 3(4), 5, 6.
2 ADJR Act, ss 3(1), (3), 5.
3 ADJR Act, s 6(1).
4 AAT Act,ss 3(1),(3),25(4).
5 (1990)170 CLR 321.
6 ADJR Act, s 3(1), (2); AAT Act, ss 3(3), 25.
7 Second Reading Speech by the Attorney-General (Mr Ellicott), H Reps Deb 1977, No 105 at 1394.
8 The Attorney-General commented that existing administrative law procedures “ could be said to be medieval“: ibid at1395.
9 Ibid at 1394.
10 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 No144 (KerrCommittee 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 CLR170; 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 Environmentv 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, partlyin 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). TheARC 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).
11 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 at550: “CNotwithstanding the particularity with which those grounds [in the ADJR Act] are stated, no narrowor restricted view of the operation of the Act is warranted. Its broad purpose was to invest this court with jurisdiction to supervise administrativeaction in the Commonwealth sphere in all its aspects.“
12 For example, Lamb v Moss (1983) 49 ALR 533.
13 (1983) 49 ALR 533.
14 Ibid at 556.
15 Ibid at 546-551.
16 Discussed below at Preliminary reports or recommendations.
17 ARC Report, above n 10 para 386.
18 (1981) 34 ALR 322.
19 (1982) 40 ALR 311.
20 ARC Report, above n 10 para 387.
21 Bond (1990) 170 CLR 321 at 336-37 per Mason CJ.
22 ARC Report, above n 10 para 387.
23 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.
24 Bond (1990)170 CLR 321 at 333-34.
25 Ibid at 335-338 per Mason CJ for the majority.
26 Mason CJ, Brennan and Deane JJ. Toohey and Gaudron JJ in a separate judgment concurred in the outcome and with the majority'sviews 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).
27 Use of the term “operative“ reflects the fact that intermediate findings, provided they are required by legislation, are also reviewable (ibid at 337).
28 Ibid.
29 Ibid at 337-38. The distinction between substantive claims and matters of procedure is discussed below at “Substantive“ decision93.
30 Ibid at 336. See also ADJR Act, ss 3(1), 3A.
31 Bond (1990) 170 CLR 321 at 336.
32 Ibid.
33 Ibid at 338.
34 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 abstractm 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).
35 Bond (1990) 170 CLR 321 at 337.
36 ADJR Act, s 3(5).
37 Bond (1990) 170 CLR 321 at 342; confirming Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
38 ADJR Act, s 3(3).
39 Mason CJ acknowledged this effect when he said that to hold that “conduct”could be used to review unreviewabledecisions 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 may have awider scope of review in this area. (P Baker, “Caveat - for administrative law practitioners”(1990) 64Law Institute Journal 1155 at 1157).
40 Evans v Friemann (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, whichis 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.
41 Bond (1990) 170 CLR 321 at 373-79 per Toohey and Gaudron JJ.
42 Chittick v Ackland (1984)6 ALD 255 at 264 per Lockhart and Morling JJ.
43 Bond (1990) 170 CLR 321 at 335. See alsoLamb v Moss (1983) 49 ALR 533 at 552;Director General of Social Services v Chaney (1980)31 ALR 571 at 590.
44 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 inBond 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.
45 Inpre-Bond times, frequent references were made to the description of a decision given by Deane Jin 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 of Workers' 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, egWinter v Winter [1933] NZLR 289 at 295; Penniel v Driffill [1980] WAR 30 at 32).”
46 Ricegrawers Cooperative Mills Ltd v Bannerman (1981) 38 ALR 535 at 544 per Northrop J.
47 Pegasus Leasing Ltd v Federal Commissioner of Taxation (1992) 104 ALR 442;Little River Gold.fields NLv Moulds (1991)32 FCR 456;Riordan v Parole Board of the ACT (1981)3 ALD 144.
48 Whim Creek Consolidated (NL) v Colgan (1991)31 FCR 469 (seeking confirmation from superiors of a belief thatgoods were liable to seizure and support for the proposal to seize goods was not a decision).
49 Whim Creek Consolidated NL v Colgan (1991) 31 FCR 469.
50 Legal Ald Commission of WA 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 ALD 161; 31 ALR 571 at 590;Secretary,Department of Social Security v Alvaro (1994) 34 ALD 72.
51 Evans v Friemann (1981) 35 ALR 428 at 431;Baker v Campbell (1982) 44 ALR 431 (decision of apolice officer to request issue of a search warrant was not a decision); cfSalemo 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).
51 (1990)96 ALR 673.
52 (1996) 40 ALO 603.
53 (1996) 40 ALD 271. See alsoTasmanian Conseroation 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 JinTasmania Conseroation 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”.
54 (1994) 34 ALD 629.
55 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.
56 (1994)35 ALD 519.This was only one of four cases in this saga.
57 For example, see North J inAvram v Australian Securities Commission , reported in Australian Financial Review , 20 November 1996 at 3.
58 (1993) 113 ALR 543.
59 (1991) 104 ALR 442.
60 D O'Brien, “Judicial review of Commonwealth administrative action:some recent developments”(1992)30Admin Review 2 at 12.
61 Deloitte Touche Tohmatsu v Australian Securities Commission (1994)35 ALD 519; Dhillon v Minister forImmigration, Local Government and Ethnic Affairs (1994)32 ALD 757; Riordan v Parole Board of the ACT (1981)3 ALD 144.
62 Bond (1990)170 CLR 321 at 338.
63 (1992)110 ALR 642.
64 Ibid at 647. However, seeClyne v Deputy Commissioner of Taxation (1986) 67 ALR 600 (the estimation and calculation of provisional tax by taxation officials was a decision).
65 Compare withSouthern 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. However, 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 alsoDeputy Commissioner of Taxation v Clarke & Kann (1984) 1 FCR 322at 325; 52 ALR 603 at 607.
66 There may well be other remedies for negligent or misleading advice, but that does not mean that the advice or opinion can bechallenged under the ADJR Act.
67 Hutchins v Deputy Commissioner of Taxation (1996) 138 ALR 153.
68 (1991) 102 ALR 339.
69 Nows 417.
70 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 695; Re Excel Finance (1993) 113 ALR 543;Harris v Bryce (1993) 113 ALR 726. But cfHeshmati v Minister for Local Government and Ethnic Affairs (1991) 102 ALR 367 andMinister 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).
71 (1994)32 ALD 757.
72 Nor were the activities “conduct”. CfNolan 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 JinDhillon argued that botHNolan andNaumovska had been overtaken byBond (Dhillon (1994) 32 ALD 757 at 762).
73 Migration Act 1958 (Cth),s 6A.This provision governed the grant of an entry permit to Dhillon at the time of his entry.
74 Migration Act 1958 (Cth),ss 14(2), 20(2), (12).
75 (1982)41 ALR 635.
76 Dhillon v Minister for Immigration, Local Government and Ethnic Affairs (1994) 32 ALO 757 at 761.
77 Ibid at 761.
78 Ibid at 762.
79 For example,compare the attention to detail in the Social Security Act 1947 (Cth) with its successor,the Social Security Act 1991 (Cth).
80 Compare withHeshmati v MILGEA (1991)102 ALR 367, which discussed the provision in the Migration Act 1958(Cth),ss 6A(l)(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”.
81 (1993) 113 ALR 726.
82 Harris v Bryce (1993) 113 ALR 726 at 733-4.
83 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.
84 (1992)25 ALD 17.
85 Ibid at 24.
86 (1992)27 ALD 473.
87 Ibid at 475-6.
88 Director-General of Social Services v Hales (1983) 47 ALR 281 at 307 per Lockhart J.
89 (1990)96 ALR 756.
90 Ibid at 763.
91 (1995) 39 ALD 303.
92 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.
93 Re Hongkong Bank of Australia and ASC (1992) 26 ALD 307 (upheld on other grounds on review by the Full Courtof the Federal Court (Hongkong Bank of Australia v Australian Securities Commission (1992) 27 ALD 257).
94 (1990) 170 CLR 596.
95 (1992) 175 CLR 564.
96 North JinAvram v Australian Securities Commission, reported inAustralian 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”.
97 See above n 54 and relevant text.
98 Sandery v Police Commissioner (1986)65 ALR 181;Dhillon v Minister for Immigration, Local Government and Ethnic Affairs (1994) 32 ALD 757;CfMinister 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.
99 (1991)31 FCR 469.
100 Section 229(1).
101 Section 203(2).
102 Whim Creek Consolidated (NL) v Colgan (1991)31 FCR 469 at 476.
103 Ibid at 477.
104 Compare withRe Dhillon and Minister for Immigration, Local Government and Ethnic Affairs (1994) 32 ALD 757, referred to earlier underPreliminary or non-operative activity
105 (1993)31 ALD 140.
106 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.
107 Social Security Legislation Amendment Act(No 2) 1992 (Cth),which added s 292A to the Social Security Act 1991(Cth) (which bythen had replaced the 1947 legislation)deeming such an automatic notification to be a “decision”for the purposes of review.
108 (1990)95 ALR 401.
109 Ibid at 421.
110 (1996) 137 ALR 335.
111 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.
113 Ibid at 219.
114 Ibid at 220.See alsoRe Excel Finance Corporation Ltd(rec and mgr apptd) (1993)113 ALR 543.
115 (1982)42 ALR 147.
116 ARM Constructions Pty Ltd v Deputy Commissioner of Taxation (1987)71 ALR 376(affirmation of earlier decisionfollowing 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 arefusal by the Minister to consider exercising his residual power under the Migration Act 1958 (Cth),s 115(5) to award a person an entry permitif 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 thatthe power to decide implies an incidental power to reconsider.However,whether the incidental power exists is a matter of statutory constructionand, for example, it was excluded inSloane , because of the complex review structure in place.See alsoComptroller-General of Customs v ACI Pet Operations Pty Ltd (1994)32 ALD 48.
120 Bond (1990)170 CLR 321 at 336.
121 (1982)4 ALN No 91.
122 Pearce, DC, Commonwealth Administrative Law (1986)para 321Google Scholar.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 Attorney-General (1986) 66 ALR 340, advice to the Governor-General in a release on licence case was not covered bys 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, madein its discussion paper, in view of considerable opposition to the idea (ARC Report No 32, above n 10 at 90- 93).
123 ARC Report No 32,above n 10 at 90. Testro v Tait (1963)109 ALR 353; R v Collins;Ex p ACTU-Solo Enterprises Pty Ltd (1976)8 ALR 691; Brettingham-Moore v St Leonards Municipality (1969) 121 CLR 509.
124 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 Criminal Justice Commission (1992)175 CLR 564;
125 Bond (1990)170 CLR 321 at 343.
126 Victoria Broadcasting Network (1983) Pty Ltd v Minister for Transport and Communications (1990) 5 BR 430 at447-48.
127 Ibid at 448.
128 Ibid at 447-448.
129 Minister for Immigration and Multicultural Affairs v Ozmanian (1996)141 ALR 322 at 343 per 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.
130 (1992)26 ALD 411.
131 Ibid at 419-20.
132 Ibid at 420.
133 ADJR Act,s 6(2)(a).
134 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 inADJR Act, s 6 which relate review under this section to proposed decisions.
135 New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission (1995)38 ALD 573at 581 per Hill J quoting 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.
136 Bond (1990) 170 CLR 321 at 343; confirming Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989)169 CLR 379.
137 New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission (1995)38 ALD 573at 583 per Hill J.
138 Bond (1990)170 CLR 321 at 342.
139 Szajntop v Gerber (1991)28 ALD 187; Shadforths Ltd v Human Rights and Equal Opportunity Commission (1991)25 ALD 72.
140 ADJR Act,s 6(1)(c),(d).
141 ADJR Act,s 6(1)(c),(d).
142 Especially ADJR Act,s 5(1)(a),breach of natural justice; and s 5(1)(b),failure to follow procedures required by law.
143 Minister for Immigration and Multicultural Affairs v Ozmanian (1996)141 ALR 322.
144 Ibid at 337.
145 (1991)25 ALD 667.
146 Ibid at 670.
147 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 ALD667 at 670).
150 (1991)103 ALR 204.
151 Whim Creek Consolidated (NL) v Colgan (1991) 103 ALR 204 at 215. Cf Salerno v National Crime Authority (1997144 ALR 709 in which the preliminary determination to conduct a search of property was found to be a “decision”.
152 See earlier discussion under “Final or operative” decision and Stages of decision-making.
153 (1990) 96 ALR 673.
154 Ibid at 688. The other two justices, Northrop and Lockhart JJ ,did not comment on this issue.
155 Brien, D O', “Judicial review of Commonwealth administrative action:some recent developments”(1992) 30 Admin Review 2 at 3Google Scholar.
156 (1994)124ALR 471.
157 (1995)39 ALD 527.
158 See also Comptroller-General of Customs v Disciplinary Appeal Committee (1992)107 ALR 480;Kelson vForward (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 (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”).
168 (1991)102 ALR 367.
169 Ibid at 375.
170 (1989)169 CLR 379.
171 The earlier approach is also apparent in Heshmati v Minister for Immigration,Local Government and Ethnic Affairs (1991)102 ALR 367; Gunaleela v Minister for Immigration and Ethnic Affairs (1987)15 FCR 543;74 ALR 263.
172 NSW Aboriginal Land Coundl v Aboriginal and Torres Strait Islander Commission (1995)38 ALD573.
173 (1993)113 ALR 726.
174 (1995)132 ALR 413.
175 (1995)131 ALR 559 at 570.
176 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 (Av Veterans' Review Board (1995)38 ALD 315),were processes found to be reviewable as “conduct”.
177 (1996)137 ALR 103.
178 (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 Jin a judgment concurred in by Spender and French JJ.
179 Warren v Repatriation Commission (1995)39 ALD 513; Sandery v Commissioner of Police (1985)65 ALR 181.
180 Century Metals and Mining (NL)v Yeoman (1989)100 ALR 383; Merman Pty Ltd v Comptroller-General ofCustoms (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.
181 Minister for Immigration and Multicultural Affairs v Ozmanian (1996)141 ALR 322.Cf Heshmati v Minister forImmigration,Local Government and Ethnic Affairs (1991)31 FCR 123.
182 Although that would be one option,see McMillan, JD, “Recent Themes in Judicial Review of Federal Executive Action”(1996) 24 F L Rev 347 at 369Google Scholar.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.
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 CJ states that certain other provisions of the ADJR 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 J 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 ADJR Act,s 3(5).
190 (1996)46 ALD 290.
191 Bond (1990)170 CLR 321 at 337.
192 ADJR Act,s 3(3).
193 For example, Kelson v Forward (1995)39 ALD 303; Ainsworth v Criminal Justice Commission (1992)175 CLR 564 at 585 per Brennan J; 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).
194 AAT Act,s 25(1),(4).
195 AAT Act,ss 3(1),(3),25(1),(4).
196 McMillan, JD,“Recent Themes in Judicial Review of Federal Executive Action”(1996) 24 F L Rev 347at 368Google Scholar.
197 Federal Commissioner of Taxation v Beddoe (1996) 148 ALR 383.
198 Bond (1990) 170 CLR 321 at 375 per Toohey and Gaudron JJ.
199 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 Matuska (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 AATAct(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 Bums (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 ofreview 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).
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.
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 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).
213 The principal point of difference was that the Court rejected Brennan J's emphasis on the actor's state of mind. TheCourt found that the actor's belief about lawful authority was irrelevant. A purported reliance on a source of power to act was sufficient.
214 (1979)2 ALD 1 at 6-7 per Bowen CJ;at 26 per Smithers J.
215 Ibid at 6 per Bowen CJ;at 21 per Smithers J.
216 Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147.
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”and invalidity.
223 (1991)24 ALD 611.
224 Corporations Law,s 733.
225 (1980)31 ALR 571.
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 Review, 20 November 1996 at 3)described a similar exercise of power by the ASC as “mighty”.
231 (1978)1 ALD 116.
232 Ibid at 122.
233 AAT,Olney J ,29 April 1996,unreported.
234 AAT Act,s 44(1).
235 Australian Postal Corporation v Matusko (AAT,Olney J ,29 April 1996,unreported, at para 12 of judgment).
236 (1993)30 ALD 45.
237 See also Australian Postal Corporation v Matuska (AAT,Olney J,29 April 1996,unreported).
238 (1993)32 ALD 307.
239 Director-General of Social Services v Chaney (1980)3 ALD 161.
240 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.
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 Services & 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 L's 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.
246 Social Security Act 1991 (Cth),s 1247(1)(as it was then).
247 Re Reid and Secretary, Department of Social Security (1994)30 ALD 713 at 718-719.
248 (1994)34 ALD 72.
249 Social Security Act 1991 (Cth),s 1283 provides that the AAT may only review a decision which has been reviewed by the SocialSecurity 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)).
250 Secretary,Department of Social Security v Alvaro (1994)34 ALD 72 at 79.
251 (1992)25 ALD 17.
252 AAT Act,s 25(1).
253 (1993)32 ALO 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) 64 FCR 166.
257 Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979)2 ALO 1 at 21.
258 For example,see Re BHP and Minister for Resources (1993)30 ALD 173; Re Franke and Commissioner of Patents (1993)29 ALD 801.
259 Robertson, A, “Remedies,Present and Future”(1995) 44 Admin Review 85 at 88Google Scholar.