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Arora, Neil --- "Not So Neat: Non-Statutory Corporations and the Reach of the Administrative Decisions (Judicial Review) Act 1977" [2004] FedLawRw 6; (2004) 32(1) Federal Law Review 141

COMMENT

NOT SO NEAT: NON-STATUTORY CORPORATIONS AND THE REACH OF THE ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977

Neil Arora[*]

INTRODUCTION

From 1 July 1999, a new Commonwealth statutory scheme for the regulation of wheat exports took effect. Unlike the previous regulatory scheme, the Wheat Marketing Legislation Amendment Act 1998 (Cth) ('the amending Act'), which amended the Wheat Marketing Act 1989 (Cth) ('the Act'), introduced a novel element. The amending Act altered the scheme so that supervision and implementation of the scheme, which had previously been ascribed to a single statutory authority, were divided over two entities. Supervision of the scheme remained with a statutory authority, whilst a grower-owned company, incorporated under the Corporations Law of Victoria,[1]was charged with implementation of the scheme.[2]

The case presented in NEAT Domestic Trading Pty Limited v Australian Wheat Board Ltd, [3]the subject of this comment, raised an important question as to the reach of statutory administrative law, set against the background of the amended wheat export scheme. Specifically, the question in NEAT Domestic was whether decisions made by the grower-owned company denying NEAT Domestic Trading Pty Ltd ('NEAT') permission to export wheat were 'decisions of an administrative character made under an enactment' within the meaning of s 3(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the ADJR Act'), thereby giving the Court jurisdiction. More generally, Kirby J described the question of principle raised, and the importance of it vis-à-vis the changing face of the delivery of governmental services, as

whether, in the performance of a function provided to it by federal legislation, a private corporation is accountable according to the norms and values of public law or is cut adrift from such mechanisms of accountability and is answerable only to its shareholders and to the requirements of corporations law or like rules.

Given the changes in the delivery of governmental services in recent times, performed earlier and elsewhere by ministries and public agencies, this question could scarcely be more important for the future of administrative law.[4]

A majority of the Court (McHugh, Hayne and Callinan JJ; Gleeson CJ and Kirby J dissenting)[5]held that decisions made by non-statutory corporations did not fall within ADJR Act jurisdiction. At a superficial level, the conclusion in NEAT Domestic means that by transferring a function from a statutory to a non-statutory body, review under the ADJR Act can be avoided. This conclusion is alarming and demands examination.

In my opinion, the majority's decision was incorrect. Their Honours reached their decision by reasoning at a very general level. Such reasoning was not warranted by the question raised. Instead, what was required of the Court was an exercise in statutory construction. In my view, decisions made by a non-statutory corporation in pursuance of a role granted to it under legislation are subject to review under the ADJR Act. This comment will seek to show why this is the case.

In part I of this comment I sketch out the background to the regulation of wheat exports in Australia, and the facts of NEAT Domestic and the framework within which those facts arose. In part II I discuss the reasons given by the Court, and in particular I seek to show that the reasons offered by the majority were flawed such that the conclusion is unsustainable. In part III I propose an alternative approach to determining the question of ADJR Act jurisdiction which relies, in part, on reasoning adopted in the constitutional context, and on the affinity that exists between s 3(1) of the ADJR Act and s 76(ii) of the Constitution. Finally, in part IV I discuss the procedural choices made by NEAT as to how to pursue its case, and whether those choices were likely to succeed even if the issue in dispute had been determined in its favour.

I BACKGROUND TO NEAT DOMESTIC

A Regulation of wheat exports

In 1939 the Commonwealth government established the Australian Wheat Board ('the Board'), a statutory authority charged with the responsibility of marketing Australian wheat. In 1989 the domestic market for wheat was de-regulated, but strict regulation remained in respect of export to overseas markets. Under the Act the Board was granted the sole right to export wheat. Growers in Australia were required to sell their wheat to the Board, which then marketed and sold the wheat to overseas markets. The reason for this scheme, as outlined in the Explanatory Memorandum to the amending Act, was that the international market for wheat was distorted by the use of domestic support programs by other grain producing countries such as the United States and European Union states. The result of such programs, according to the Memorandum, was that international wheat prices were substantially reduced. Therefore, the objective of the Board was to maximise the gains for Australian growers by capitalising on bulk-exports and thus avoiding the lower prices that prevailed.[6]

In 1999, apparently due to industry pressure, the regulatory structure underwent significant change. That change can be described as de-regulatory in the sense that growers were no longer required to sell their wheat to a central authority. The amending Act created the Wheat Export Authority ('the Authority'), an independent statutory authority formed from the shell of the existing Board. The Authority would manage and approve requests to export wheat, monitor the use of the monopoly and account to government and industry. However, unlike its predecessor, it would not be the body that marketed and sold wheat to overseas markets.[7]That responsibility was conferred on the second respondent, a company limited by shares incorporated under the Corporations Law of Victoria and known as Australian Wheat Board (International) Pty Ltd ('AWBI'). AWBI was the wholly owned subsidiary of the first respondent, Australian Wheat Board Ltd ('AWB'), the grower-owned company that was also incorporated under the Corporations Law of Victoria and limited by shares. AWB was grower-owned in the sense that only persons who sold wheat into the pools were granted the right to hold Class-A shares, which carried voting rights in respect of board elections, but not the right to receive dividends.[8]Both growers and non-growers could hold Class-B shares, which carried the right to dividends but not voting.[9]

Importantly, although the regulatory structure had changed, the policy of export monopoly described as the 'single-desk' policy,[10]remained in essence untouched.

Under the Act (as amended), AWBI was granted the sole right to export wheat (known in the Act as 'nominated company B'). Persons other than AWBI who wished to export wheat could seek the written consent of the Authority. Relevantly, ss 57(1)and 57(1A) of the Act provided:

Control of export of wheat

(1) A person shall not export wheat unless:

(a) the 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.

Section 57 also provided a detailed scheme of consent by the Authority that was limited to bulk-export and included a vital role for AWBI:

(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.(emphasis added)

In light of the history of wheat export regulation, it is not surprising that AWBI was given a role in the scheme of consent. Formerly, the Board had been the sole exporter of wheat and had been given the authority to determine whether other organisations were permitted to export. It therefore appears logical that, given its successor (the Authority) was no longer the sole exporter, but only the overseer of the export monopoly, the authority to consent should also pass to the new body, namely, AWBI.[11] The form the scheme of consent took, approval in writing before consent by the Authority could be granted,[12]reflected the fact that regulation of the wheat export market had been divided among the two new entities.

However, given the fact that the sole exporter was now a non-statutory corporation, which would be considered a trading company for the purposes of s 51(xx) of the Constitution, its actions would be subject to the Trade Practices Act 1974 (Cth) ('the TPA').[13]Clearly, maintenance of the single-desk policy had the potential of placing AWBI in contravention of the TPA.[14]Accordingly, s 57(6) of the Act provided immunity from actions under the TPA in respect of anything done by AWBI 'under ...or for the purposes of' s 57 of the Act:

(6) For the purposes of subsection 51(1) of the Trade Practices Act 1974, the following things are to be regarded as specified in this section and specifically authorised by this section:

(a) the export of wheat by nominated company B;

(b) anything that is done by nominated company B under this section or for the purposes of this section.

Section 51(1) of the TPA provides that in deciding whether a person has contravened Part IV of that Act (Restrictive trade practices), anything specified in and specifically authorised by a Commonwealth Act, must be disregarded. Accordingly, the combination of s 57(6) of the Act and s 51(1) of the TPA operates to insulate AWBI from action arising under the TPA in respect of 'anything that is done by ... [AWBI] under ... or for the purposes of' s 57 of the Act.

B The facts and litigation

The facts of this case arose out of six requests made between November 1999 and January 2000 by NEAT to the Authority for consent to export wheat, in bulk quantities, to overseas markets. On all six occasions the Authority sought, in accordance with ss 57(3A) and 57(3B) of the Act, the written approval of AWBI.[15] AWBI refused to give its consent pursuant to what NEAT claimed was the application of an inflexible policy without regard to the merits of each individual request.[16]Under AWBI's corporate constitution, the directors were required in the exercise of their powers to have regard to the maximising of returns to growers who sell wheat into their pools. The Act was silent as to what matters AWBI may or may not take into account in giving, or declining to give, its approval.

Originally NEAT sought an order under the ADJR Act that the decision be quashed and remade according to law. However, by the time the matter reached the High Court, the opportunities for the bulk-export of wheat had, due to the effluxion of time, disappeared. Therefore, NEAT instead sought an order that the decision be quashed and a declaration under s 16(1)(c) of the ADJR Act that the decision by AWBI was in contravention of s 5 of the ADJR Act. Such an order, NEAT argued, would operate to remove AWBI's immunity from actions under the TPA,[17]thereby permitting NEAT to pursue TPA remedies such as damages.[18]

C The question of jurisdiction

Of primary importance to NEAT's case was the question of whether the decision by AWBI declining to give its approval for the bulk-export of wheat was a reviewable decision under s 3(1) of the ADJR Act. That section relevantly provides:

decision to which this Act applies means a decision of an administrative character made,proposed to be made, or required to be made (whether in the exercise of a discretion or not and whether before or after the commencement of this definition):

(a) under an enactment referred to in paragraph (a), (b), (c) or (d) of the definition of enactment; or

(b) by a Commonwealth authority or an officer of the Commonwealth under an enactment referred to in paragraph (ca) or (cb) of the definition of enactment;

other than:

(c) a decision by the Governor-General; or

(d) a decision included in any of the classes of decisions set out in Schedule 1.

'Enactment' is widely defined in s 3(1), and for present purposes includes the Act. Ultimately, the result in NEAT Domestic depended upon the determination of two important questions:

(1) Can a decision by a non-statutory corporation be considered a decision of an 'administrative character'? ('the character question'); and

(2) Where two or more potential sources of power exist (for example, an enactment and others), is such a decision made 'under an enactment'? ('the enactment question').

II THE DECISION IN NEAT DOMESTIC

A Reasons

In respect of the character question,[19]the majority relied upon, first, the 'private' character of AWBI as a company incorporated under the Corporations Law, for the pursuit of, what appeared to be, purely private commercial objectives.[20]Secondly, their Honours appeared to place great reliance on the apparent practical difficulty of accommodating public law obligations with the pursuit of AWBI's private commercial interests.[21]In respect of the enactment question, their Honours relied on the decision in Minister for Immigration and Ethnic Affairs v Mayer,[22] and said that, unlike in Mayer,[23]AWBI required no statutory power to create a document giving, or declining to give, its consent.[24] Instead it could rely on its powers as a legal person conferred on it by the Corporations Law.[25] Therefore, the decision by AWBI was not a 'decision of an administrative character made under an enactment'.

By contrast, Kirby J came to the opposite conclusion. In respect of the character question, his Honour first looked to the constitutional context of decision-making in Australia.[26]According to his Honour, the constitutional context requires that the character of decisions made by 'bodies assigned important public functions' are not to be determined exclusively by the structure of such bodies.[27] In this manner, his Honour refuted the importance of the Corporations Law structure of AWBI. Secondly,from the legislative framework his Honour found that a non-statutory corporation, AWBI, to a large degree controlled the conduct of an independent statutory agency, the Authority.[28]Thirdly, his Honour relied on Forbes v New South Wales Trotting Club Ltd, where the Court accepted that although the decision-maker was a private club with no statutory power, it was controlling a public activity and thus was subject to the rules of natural justice and other administrative law constraints.[29]Finally, his Honour also relied on the English decision in R v Panel on Take-overs and Mergers; Ex parte Datafin, where the Court of Appeal held that a non-statutory unincorporated association was amenable to common law judicial review.[30]

In respect of the enactment question, Kirby J relied on the often quoted judgment of Mason CJ in Australian Broadcasting Tribunal v Bond, where his Honour stated that, in order for a decision to be made under an enactment, the enactment must require or authorise the decision.[31]According to Kirby J, AWBI's decision was required by the legislation as, without such a decision, a 'large part of the scheme created under s 57 would become unworkable'[32]and, further, without the legislation the decision had no legal force.[33]

Similarly, Gleeson CJ, in obiter dicta, indicated that if he were required to answer the jurisdictional question he would favour the view that AWBI's decision was of an administrative character made under an enactment.[34]His Honour noted that the majority placed undue emphasis on the private interests represented and pursued by AWBI, as distinct from the public character of the Authority and the role AWBI played in depriving the Authority of its capacity to consent to the bulk-export of wheat.[35]

B Difficulties with the majority's reasons

1 The character question

The major deficiency in the majority's reasons appears from the language in which those reasons were couched. Namely, the language of generalities and not the language of the ADJR Act, which was central to the issues in dispute. Apart from three sentences,[36]their Honours' judgment represents an exercise in generalities. For example, in stating the question to be decided by the Court, their Honours said that 'at its most general' the increasing tendency of privatisation and corporatisation

presents the question whether public law remedies may be granted against private bodies. More particularly, do public law remedies lie where AWBI fulfils the role which it plays under [the Act]?[37]

In fact, as discussed above, the question was not whether public law remedies lay against AWBI, but rather whether the decision by AWBI constituted a decision of an administrative character made under an enactment within the meaning of the ADJR Act. The misstated question, in my opinion, led to their Honours' failure to deal with the issues raised. Instead, the judgment appears to deal with the broad policy question of whether the commercial objectives of an organisation can co-exist with public obligations.[38]

In this case, the only issue for the Court's attention was the construction of s 3(1) of the ADJR Act. The question for the Court was whether AWBI fell within the reach of the ADJR Act, and if it did, then whether its conduct contravened any of the grounds in s 5, entitling NEAT to a declaration under s 16(1)(c).

From this major deficiency flowed three apparent errors. First, by focussing on the structure of the decision-maker, the majority, by analogy, returned to the pre Ridge v Baldwin[39]days. Before Ridge v Baldwin the applicability of administrative law constraints depended on the classification of the function performed by, or the powers of, the decision-maker. [40] For example, a judicial (or legislative) decision-maker was taken to make decisions of a judicial (or legislative) character, as opposed to an administrative character. Thus, the applicability of constraints depended on the adjective that best described the particular decision-maker. This may be described as the 'institutional approach'. In Ridge v Baldwin, however, the House of Lords recognised that the classification of powers was not a sound basis for the application of strict rules. Australian courts since have accepted the view enunciated in Ridge v Baldwin.[41]In this case, by examining the structure of the entity and reasoning that such entities ordinarily are vehicles for commercial pursuits, the majority appears to have extended the pre Ridge v Baldwin classification of judicial, legislative and administrative decision-makers to include non-statutory corporations.

Secondly, and as a corollary to the first difficulty, by examining both the structure of the decision-maker and the interests it serves (private, according to the majority), the focus of the inquiry appears to have shifted from the character of the decision, to the character of the decision-maker. The starting point for any exercise in statutory construction is the language of the section to be construed. In this case, s 3(1) of the ADJR Act narrows the focus to the character of the decision itself, not the decision-maker. Whilst understanding the character of the decision-maker, its function and the interests it serves may assist in determining the character of the decision, it should not, ordinarily, be determinative. The case law regarding the character question consistently has found that decision-makers, which are, for example, ordinarily classified as judicial, can make decisions of an administrative character (rejection of the institutional approach).[42]The status of the decision-maker should not overshadow the character of the decision.

Thirdly, by focussing on the interests served, the majority lapsed into language that indicates a blurring of the jurisdictional question with the question of whether the grounds in s 5 of the ADJR Act were contravened ('the merits question'). After noting that AWBI must consider the private interests of the grower-owners,[43]the majority found that any such consideration would outweigh any countervailing considerations which administrative law constraints would place on AWBI.[44]Their Honours then categorically stated:

That being so, there is no sensible accommodation that could be made between the public and the private considerations which would have had to be taken to account if the ... [Act] were read as obliging AWBI to take account of public considerations.[45]

The majority went on to conclude that decisions made by AWBI were not subject to judicial review under the ADJR Act.

I would submit that the majority conflated the jurisdictional question with the merits question, such that the reasoning is flawed. What considerations must be taken into account and the room such considerations would leave for the operation of administrative law constraints on decision-making has no role to play in the determination of whether the decision is reviewable. Rather, such considerations merely go to the merits question. If in fact there is no sensible accommodation between public and private considerations then the effect of administrative law rules should be severely curtailed. However, jurisdiction should be unaffected.[46]

2 The enactment question

For the majority, the central issue, in respect of the enactment question, was whether s 57(3B) of the Act conferred statutory power on AWBI such that it could be said that an approval decision is made under the enactment. Their Honours reasoned that, because the capacity to provide an approval in writing was given by AWBI's corporate constitution, there was, by implication, no need for a statutory power.[47]It is important to note that the majority did not deny that s 57(3B) could be a source of power. Their Honours expressly acknowledged that s 57(3B) gives an approval document statutory significance.[48]However, placing reliance on Mayer,[49]their Honours said that, unlike the case of a Minister's decision, it was unnecessary to read s 57(3B) as impliedly conferring power on AWBI.[50]

In Mayer, the Minister argued that the requirement in s 6A(1)(c) of the Migration Act 1958 (Cth) that 'the Minister has determined, by instrument in writing, that [an applicant for an entry permit] has the status of refugee within the meaning of the Convention ... or of the protocol', did not confer a statutory power on the Minister to determine whether the applicant had that status.[51]According to the Minister, the inclusion of the word 'has' implied that the status of a refugee was pre-determined, and all the Minister was doing was recognising that status. Thus, the decision was not

a decision under an enactment subject to judicial review under the ADJR Act. A majority of the Court (Mason, Deane and Dawson JJ; Gibbs CJ and Brennan J dissenting) held that s 6A(1)(c) did confer a statutory power on the Minister to determine whether the applicant had the status of a refugee.[52]The majority reasoned that the paragraph must implicitly confer that power because without such a power the Minister would be under no duty to make any determination and the provision would be deprived of any effective content.[53]

Unlike Mayer, the facts presented in this case give rise to two potential sources of power — the corporate constitution and s 57(3B) of the Act. Therefore, it was unnecessary to attempt to read any implication into s 57(3B), as the corporate constitution served as a fail-safe. In my opinion, the application of the reasoning in Mayer to the facts in this case was inappropriate.

III AN ALTERNATIVE APPROACH TO JURISDICTION UNDER THE ADJR ACT

A The character question: the many faces of a decision

As noted above, the starting point for determining whether the decision by AWBI was subject to judicial review under the ADJR Act is the terms of the Act itself. Section 3(1) provides that decisions of an 'administrative character' made under an enactment are subject to review. The question then is, what meaning is to be given to the prefix 'administrative' in the context of decisions made by a Corporations Law company?

1 The tripartite distinction and the constitutional context

In the interpretation of this term, the proposition that the phrase 'decision of an administrative character' expressly excludes decisions that are of a legislative or judicial character, can readily be accepted. The tripartite distinction — decisions made by the judicature, the legislature and the executive, was originally the basis of common law judicial review. As discussed above,[54]over time this distinction blurred. However, strangely, with the enactment of the ADJR Act it was reintroduced (although by the legislature) as a limit on what decisions were reviewable.[55]This qualification has to date been read consistently with the common law view that the character of the repository of power is not determinative (rejection of the institutional approach), but the tripartite distinction is to be maintained.[56]

The maintenance of the common law view in the context of the ADJR Act jurisdiction is supported by the fact that the expression 'administrative decisions' formed an unexamined assumption against which the ADJR Act was enacted. This is indicated by the terms of reference of the Administrative Review Committee (the Kerr Committee) established on 29 October 1968 and the report produced by that committee. The Kerr Committee was the first in a series of committee investigations that led to the enactment of the ADJR Act. Its terms of reference included '[t]o consider the jurisdiction to be given to the proposed Commonwealth Superior Court to review administrative decisions. '[57]Further, the expression was not commented on in either the Kerr Committee Report,[58]the Bland Committee Interim Report,[59]the Bland Committee Final Report[60]or the Ellicott Committee Report.[61]

Importantly, apart from the common law background, the tripartite distinction is also entrenched in the Constitution. [62] The separation of the functions of government embedded in the Constitution must always be maintained and provides the immutable background to any discussion of judicial review. It is not a matter of merely extending the pre Ridge v Baldwin classification to include non-statutory corporations, as the majority appears to have done.[63]Instead, the decision must be examined to determine whether it falls within the executive sphere of operation and is thus subject to review. Kirby J, relying on the dicta of Gummow J in Airservices Australia v Canadian Airlines International Ltd,[64]pointed out that:

the character of the provisions of an Act designed to involve private sector bodies in the 'exercise [of] what once may have been and elsewhere may be regarded as governmental functions' is to be determined by reference to the operation of such provisions.[65]

Further, Kirby J also noted that the provisions of the Act must be read in the context of constitutional features of the nature of responsible government.[66] In CanadianAirlines, Gummow J, referring to comments made by Finn, noted that scrutiny of the formally 'non-governmental' action of a statutory corporation (that is, entering into commercial contracts) represented a fissure in Australian jurisprudence.[67]The facts of NEAT Domestic raised the opposite scenario — the scrutiny of 'governmental' action by a non-statutory corporation. In my opinion, the facts indicate an equal fissure in Australian jurisprudence which, against the background of responsible government, should not exist. The doctrine of responsible government demands that the Minister charged with the administration of that governmental action take responsibility.

2 The interaction of private and public characters

A further proposition, implicit in the judgments delivered in NEAT Domestic, is that surely Parliament did not intend that decisions by purely private bodies pursuing their private commercial interests would be considered decisions of an 'administrative character' amenable to judicial review. The converse of this is that only decisions that are in some way 'public' in character are amenable to judicial review under the ADJR Act. This seems to be the only common element in the tripartite distinction — that is, decisions that are legislative, judicial or administrative in character are all in some way public in character. In other words they affect the public directly and/or indirectly.

In short, all that can be said about the phrase 'decision of an administrative character' is that the decision 1) cannot be judicial or legislative in character; and 2) must be in some way public in character.

What is implicit in the second requirement is that decisions may bear several characters. Such an analysis finds its root in the characterisation of legislative provisions to determine whether they are within the constitutional power of the Commonwealth Parliament. In constitutional discourse it is well settled that a legislative provision may bear several characters, but the provision does not cease to be valid 'because it can be characterised as a law upon a topic outside of power.'[68]Just as the nature of a constitution requires the Court to lean towards a broad interpretation, [69] so too does the ADJR Act, which is remedial in nature.[70] Accordingly, a decision, like a legislative provision, may bear several characters. It is only necessary that one of those characters is public for the decision to fall within the meaning of 'decision of an administrative character'.

There is no reason in principle why a decision cannot bear several characters. The institutional approach to judicial review was abandoned by the common law because it became apparent that a decision-maker characterised in one way could make decisions that bore no relation to that characterisation. It was thus recognised that decision-making is not black or white. Similarly, the paradigm shift in the delivery of governmental services[71]demands that the Court recognise that like decision-makers the character of a decision is not black or white. The facts in NEAT Domestic provide an ideal example of the complexity and variety of regulatory structures which the Commonwealth executive is frequently choosing to adopt.

Once it is accepted that a decision may bear several characters, the majority's reasoning becomes clearer. Their Honours assumed that if the decision was commercial in character it could not be considered administrative. In other words, when placed in its proper context (the language of the ADJR Act), the majority held that, despite the fact that a decision may bear several characters, a decision that bears a commercial character does not fall within the terms of s 3(1) of the ADJR Act. Clearly this is incorrect.

How one determines whether a decision is in some way public is open to varying approaches. The majority would seem to favour the view that what is required is an examination of the interests served by the decision-maker. In their Honours' opinion, AWBI serves private interests. By contrast, Gleeson CJ and Kirby J favour the view that an examination of the interests served is an unduly narrow inquiry and the correct approach is to examine whether the function served by the decision-maker is governmental.

In my opinion an approach that only examines the interests served fails to consider the wider social or economic effects which a decision may have. For example, a decision not to provide welfare payments to an individual could be said to affect only the interests of that individual. However, it is undeniable that the decision also has indirect social and economic effects on the public such that the decision would be described as public in character. Similarly, the decision by AWBI declining to approve a permit to export had a direct effect only on the interests of NEAT and the grower-owners. However, the decision may also have had indirect economic effects on the wider public in terms of wheat prices. Why else, one may ask, would bulk-export permits require AWBI's consent, yet non-bulk-export permits be free from this constraint? Therefore, an examination of interests served provides an incomplete picture. Instead an approach that relies on the decision-maker's function, as well as interests served, is to be preferred.

In considering the decision-maker's function, one may take guidance from the 'functional approach' (contrasted with the 'institutional approach') adopted by the English courts in the context of common law judicial review.[72]According to De Smith, Woolf and Jowell, a decision-maker is performing a 'public function' when it seeks to achieve some collective benefit for the public or a section of the public and is accepted by the public, or a section of it, as having authority to do so.[73]

The functional approach was first accepted by the English Court of Appeal in Datafin.[74] There, the Court held that although not created by statute or having any powers under statute, the Panel on Take-overs and Mergers was amenable to judicial review. The Court relied on the fact that the Panel was an integral part of a system and performed public law duties, namely the self-regulation of financial activity in the City of London.[75] An important element in the Court's decision was the fact that the Panel was exercising extensive monopolistic powers — it was said to have 'a giant's strength'.[76]Further, it was also relevant that the aggrieved person had consensually submitted to be bound by the decisions of the Panel.[77]

Later English cases have elaborated on Datafin and accepted that various factors taken together may indicate that the decision-maker is exercising a public function. De Smith, Woolf and Jowell summarise those factors,[78]four of which are relevant here. First, whether, but for the existence of the non-statutory body, the government would itself almost inevitably have intervened to regulate the activity in question.[79]This factor clearly requires an examination of the subject matter in question and an examination of the history of the regulation of that subject matter. Secondly, whether the government has acquiesced in or encouraged the activities of the body under challenge.[80]In other words, has the body been accepted as part of the regulation of that activity and has the executive or parliament in some way (ideally legislatively) demonstrated its confidence in the body. Thirdly, whether the body is exercising monopolistic powers.[81]Fourthly, whether the aggrieved person has consensually submitted to be bound by the decision-maker.[82]

I would submit that a consideration of such factors, in particular the monopolistic power wielded by AWBI and the historically strict regulation of the wheat export market, clearly indicates that AWBI was exercising a public function when it declined to approve NEAT's permit for the bulk-export of wheat.

I do note that various commentators have criticised the English approach as leading to an insufficiently clear boundary between public and private actors.[83]However, as discussed above, such a strict divide is not necessary for the resolution of the jurisdictional question under the ADJR Act. Rather, because under the ADJR Act a decision may bear several characters, it is only necessary that one of those characters be public.

B The enactment question: a new understanding

As discussed above,[84]the majority's application of the reasoning in Mayer was inappropriate. In this case, unlike Mayer, there were two potential sources of power. According to the authorities, the approach to take in such a case is to ask which source is more proximate to the decision?[85] Or, another way of putting it is to ask, which source has the closest connection to the decision? If the decision is more proximate to the legislative provision then it is 'made under an enactment'.

1 The proximity test

In my opinion, the application of this test is unclear. Without assuming that in each case there will exist a clear hierarchy of sources, it appears difficult, if not impossible, to determine proximity. In some circumstances a clear and obvious hierarchy may exist to guide the application of the test. For example, in Glasson v Parkes Rural Distributions Pty Ltd[86]the High Court was faced with a petroleum products subsidy scheme in which the Commonwealth made a legislative grant to the states on the basis that the states would legislate to enforce the scheme. In Glasson there was an obvious hierarchy of sources. At the top was the Commonwealth Act, below it was the scheme formulated under that Act (which was a Commonwealth executive action with no Commonwealth legislative enforcement), and at the bottom of the hierarchy was the State Act implementing and enforcing the scheme. The question arose whether a certificate of recovery issued under the State Act, because of overpayment to a petroleum distributor, was a decision made under a Commonwealth enactment within the meaning of s 3(1) of the ADJR Act. Whilst the Court did not expressly refer to the proximity test, it unanimously held (Gibbs CJ, Mason, Murphy, Wilson and Brennan JJ) that the certificate was a decision made under the State Act, and not the Commonwealth enactment, under which the scheme was made.

A further example is General Newspapers Pty Ltd v Telstra Corporation,[87]a case concerning contracting by a statutory agency. In General Newspapers, the appellants ('General'), which carried on a business as printers, approached the respondent in 1991, which at that time was a statutory corporation known as Australian & Overseas Telecommunications Corporation ('Telecom'), expressing interest in tendering for the printing of telephone directories. Following an inspection of General's premises, Telecom notified General that it had been placed on the tender list. However, without calling for tenders or advising General, Telecom entered into new 10 year contracts with its existing printers. In response, General brought proceedings under the ADJR Act alleging breach of the rules of natural justice.[88]

Under s 19(1) of the Australian Telecommunications Corporation Act 1989 (Cth), Telecom was conferred with all the powers of a natural person including the power to enter into contracts. Telecom argued that the decision to enter into new 10 year contracts with its existing printers was not subject to review under the ADJR Act because it was not made under an enactment. Telecom argued the contracts were made under the general law of contract. A Full Court of the Federal Court unanimously agreed with Telecom and dismissed the appeal. In the course of their judgment, Davies and Einfeld JJ (Gummow J agreeing)[89]said:

In the present case, the decisions relied upon involved the entry of contracts and the conduct challenged was conduct leading to the making of the contracts. No statute [including the Australian Telecommunications Corporation Act] made specific provision for such contracts, merely conferring upon Telecom all the powers of a natural person including the power to enter into a contract. That was a mere conferral of capacity to act. The contracts were not relevantly authorised or required by and were not made under an enactment. The validity of the contracts and of the acts done was governed entirely by the law of contract, not by the statutes. Thus, the ADJR Act had no application to the conduct or to the alleged decisions.[90]

Earlier, their Honours said: '[t]he empowering statute merely confers capacity to contract, whilst the validity and effect of the contract is determined by the ordinary laws of contract.'[91]

Although couched in the language of 'conferral of capacity' and 'validity and effect' of the contract, the decision can be understood as an application of the proximity principle. At the top of the hierarchy was the Commonwealth Act conferring the powers of a natural person on Telecom, and below that lay the ordinary laws of contract in accordance with which the contract was entered. Thus, the decision had its closest connection with the ordinary laws of contract.

Applying the proximity test to the facts in NEAT Domestic, it is possible to say that the decision was made under the Commonwealth enactment. The corporate constitution was at the top of the hierarchy — it conferred the powers of a natural person on AWBI (that is, it conferred on AWBI the capacity to make the decision in question), and s 57(3B) lay underneath that because without it the decision had no force or effect. To use the language of the majority, in the absence of s 57(3B), the decision had 'no statutory significance', and thus would not be enforceable against NEAT.

It is clear from Glasson and General Newspapers that what lies at the heart of the ineloquently labelled 'proximity test' is a distinction between the legislative source of the power to make the decision and the effect given to the decision by legislation. In the course of a recent article, Graeme Hill analysed this distinction with a view to reconciling NEAT Domestic with Glasson.[92]

However, in my opinion, the proximity test (or the application of the distinction between source and effect) appears ill defined and overly narrow. It is ill defined in that its connection with the language in s 3(1) of the ADJR Act, the starting point of the inquiry, appears tenuous. Section 3(1) provides that a 'decision ... made under an enactment' is subject to review under the ADJR Act. It does not provide that a decision with connections to multiple sources of authority, one of which is a Commonwealth enactment, is excluded because that connection is not the closest connection available. However, the judgment in Glasson implicitly assumes that this is the case. The High Court relevantly said:

although the scheme [made under the Commonwealth Act] would give the authorized officer authoritative guidance, it did not give him power or authority to make the decision to issue the certificate and it was not the legal source of the rights and liabilities which the certificate created and imposed.[93]

This is reiterated later in the Court's conclusion:

When neither the Commonwealth Act nor the scheme is the source of the power to appoint the decision-maker, or the source of his power to make the decision, or the source of the decision's legal effect, it cannot be said that the decision was made under that enactment.[94]

The Court assumed that there could only be one legal source of rights and liabilities, and thus the Commonwealth Act (or the scheme made under it) was not the source with the closest connection. In my opinion, this represents a narrow interpretation of s 3(1) of the ADJR Act, which is not warranted by the language of the subsection.

2 Section 76(ii) of the Constitution

Instead, the language of s 3(1) appears to somewhat mirror s 76(ii) of the Constitution,[95]which has been given a broad meaning. [96]Section 76(ii) provides that the Parliament may confer original jurisdiction on the High Court in respect of any matter 'arising under' a Commonwealth enactment. In LNC Industries Ltd v BMW (Australia) Ltd,[97]the Court unanimously said, citing R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett[98] and Felton v Mulligan[99] with approval, that:

the conclusion reached by Latham CJ in that case [Barrett], and stated in a passage that has often been cited with approval, is "that a matter may properly be said to arise under a federal law if the right or duty in question in the matter owes its existence to federal law or depends upon federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law". Equally, there is a matter arising under a federal law if the source of a defence which asserts that the defendant is immune from the liability or obligation alleged against him is a law of the Commonwealth: Felton v Mulligan.[100]

In my opinion, the wide interpretation given to the phrase 'arising under' a Commonwealth enactment should also extend to s 3(1) of the ADJR Act. On this reading, although the decision by AWBI may not 'owe its existence' to federal law, it surely 'depends upon' s 57(3B) of the Act for its enforcement. This interpretation acknowledges the reality that a decision can be made 'under' a number of sources.

This wide interpretation of s 3(1) is also reinforced by the fact that the basis upon which jurisdiction is conferred on the Federal Court in the case of ADJR Act decisions,s 39B(1A)(c) of the Judiciary Act 1903 (Cth), is a direct reflection of s 76(ii) of the Constitution.[101] Section 3(1) of the ADJR Act provides the link to jurisdiction.[102] Therefore, in addition to the similarity of language, there is an even greater affinity between the phrase 'decision ... made under an enactment' and s 76(ii) of the Constitution.

It is arguable that by interpreting s 3(1) in accordance with s 76(ii), the reach of the ADJR Act is extended beyond the scope of the words. One may argue that the word 'arising' was deliberately left out by Parliament such as to limit the jurisdiction conferred on the Federal Court in respect of the ADJR Act. In response to this, two points may be put. First, the fact that the word 'arising' appears in s 76(i) of the Constitution in juxtaposition to the word 'involving', in the phrase 'involving the interpretation of', has been understood to mean that a matter will not fall within s 76(ii) merely because it involves the interpretation of a Commonwealth law.[103]Relevantly, Latham CJ in Barrett said:

The terms of [s 76(i)] ... show that a matter may arise under the Constitution without involving its interpretation, and that a case may involve the interpretation of the Constitution without arising under the Constitution. [Section 76(ii)] ... is limited to matters arising under Federal statutes, and does not extend to matters involving the interpretation of such statutes if they do not arise thereunder.[104]

Thus, the word 'arising' operates as a limit in s 76(ii), when read in context with s 76(i). It follows from this that given s 3(1) of the ADJR Act does not appear in the same context as s 76(ii) of the Constitution does, the absence of this word was not intended to limit the jurisdiction conferred. In fact, a matter may be said to be 'under' the Constitution if it either 'involves the interpretation' of, or 'arises' under, the Constitution. The same may be said of a decision of an administrative character made under a Commonwealth enactment.

Secondly, given the remedial nature of the ADJR Act,[105]the phrase 'decision ... under an enactment' should be read broadly and consistently with the phrase 'matters arising under any law made by Parliament', and not limited by the absence of the word 'arising'. On this reading, the dicta of Mason CJ in Australian Broadcasting Tribunal v Bond,[106] that a decision is made under an enactment if the enactment requires or authorises it, is too narrow.

Finally, it is also worth noting that the interpretation given to s 76(ii) of the Constitution has also been applied in a context other than constitutional interpretation; namely, industrial law disputes.[107]

IV PROCEDURAL CHOICES IN NEAT DOMESTIC

A A flawed case?

It is arguable that by the time NEAT's case reached the High Court it was fatally flawed. Initially, as explained above, NEAT sought an order under the ADJR Act quashing the decision and ordering AWBI to remake it according to law. As a consequence, AWBI would have been forced to approve the bulk-export of wheat, and NEAT would have been in a position to effect the sales with its offshore buyers. However, by the time the matter reached the High Court, the opportunities for export had passed. Instead, NEAT sought an order quashing AWBI's decision and a declaration under s 16 of the ADJR Act that AWBI's conduct had contravened a ground in s 5 of the Act. Presumably NEAT believed that such an order would lift the immunity from TPA actions provided by s 57(6) of the Act, enabling it to recover damages under s 82 of the TPA. However, as I now turn to explain, this may not necessarily have been the consequence of such an order.

NEAT's case assumed that the order would mean that the decision by AWBI declining to approve the bulk-export of wheat was 1) not a decision 'under' s 57; and 2) was not made 'for the purposes of' s 57.[108]As to this assumption, two points can be made. First, if AWBI's decision was quashed, then it would be correct to say that there was nothing done 'under' s 57 in the sense that s 57(3B) did not authorise the making of the decision without reference to the merits of the individual case.[109]Thus, in respect of the first limb of s 57(6)(b), there would be nothing to disregard for the purposes of s 51(1) of the TPA. However, a declaration that AWBI had contravened s 5 of the Act would mean that the conduct leading to the decision would remain amenable to challenge under the TPA.

Secondly, however, although there would remain nothing done 'under' s 57, in the sense that the decision was not authorised, there would still remain conduct that was done 'for the purposes of' s 57. In my opinion, the expression 'for the purposes of' s 57 widens the operation of the TPA immunity, creating an even greater hurdle for NEAT. Thus, although the declaration may provide NEAT with conduct which it could then challenge under the TPA, that conduct would appear to have been carried out, albeit unsuccessfully, in pursuance of s 57 of the Act.[110]

Therefore, had NEAT been successful in obtaining a declaration, ultimate relief would appear to have been out of its grasp.

B Subsection 75(v) of the Constitution

An alternative way in which NEAT may have chosen to argue its case was by seeking a constitutional writ under s 75(v) of the Constitution.[111]However, according to authority, the Court would have been unable to exercise such jurisdiction over AWBI, because AWBI was not an 'officer of the Commonwealth'.[112]

C Section 163A of the Trade Practices Act 1974

It is also worth noting that had NEAT sought relief directly under s 163A of the TPA, which confers jurisdiction on the Federal Court in respect of declarations, it would have faced the same difficulties discussed above. Namely, any declarations of contravention of Part IV of the TPA would have been prevented by the operation of s 51(1) of the TPA in conjunction with s 57(6) of the Act.

CONCLUSION

The decision in NEAT Domestic has the alarming consequence that the Commonwealth may successfully insulate itself from legal, and even political, accountability. Legal in the sense that by conferring a public function on a non-statutory corporation, the exercise of that function is not subject to judicial review under s 75(v) of the Constitution, and according to NEAT Domestic, review under the ADJR Act. It is insulated from political accountability in the sense that review by the Commonwealth Auditor-General does not extend to Corporations Law corporations[113]and the Commonwealth Ombudsman also has no authority to investigate.[114] The only avenue of accountability is scrutiny by the Australian Securities and Investments Commission, as the regulator of Australian companies. This form of accountability is designed for purely commercial entities and is predicated on protecting stakeholders in a company (such as shareholders), not the wider public.

I do note that s 57(7) of the Act provides for an internal review by the Authority in relation to the operation of the scheme. The review is to take place before the end of 2004 and is to report to the Minister. However, in my opinion, unlike legal and political controls such as the ADJR Act and the Auditor-General, this form of accountability has little effect because it is insulated from the Parliament.

NEAT Domestic represents a paradigm shift in the delivery of governmental services. Such a shift demands re-examination of settled rules against the background of the Constitution. In my opinion, the majority fell short of the examination and reflection required to correctly resolve the issues presented. However, there is no doubt that such schemes utilising a Corporations Law corporation will become more common. Thus, it is likely that the issues will in the near future be re-agitated before the Court.

[*] B Com, LLB (Hons) (ANU); Associate to the Honourable Justice WMC Gummow, AC. The views expressed in this article are those of the author.

[1] I will interchangeably use the term 'non-statutory corporation'. Note, at the time the grower-owned company was incorporated the Corporations Law was in force. Thus, for ease of reference I will refer only to the Corporations Law and not to the Corporations Act 2001 (Cth), which reproduced the relevant provisions.

[2] The High Court has confirmed that the Commonwealth can legislate to create whatever vehicle it wishes to carry out a valid function or objective: Australian National Airways Pty Ltd v Commonwealth [1945] HCA 41; (1945) 71 CLR 29. Also see Heiner v Scott [1914] HCA 82; (1914) 19 CLR 381, 392; and Bank of New South Wales v Commonwealth [1948] HCA 7; (1948) 76 CLR 1, 361.

[3] NEAT Domestic Trading Pty Limited v Australian Wheat Board Ltd [2003] HCA 35; (2003) 77 ALJR 1263 ('NEAT Domestic').

[4]NEAT Domestic [2003] HCA 35; (2003) 77 ALJR 1263, 1276 [67]– [68].

[5] As to the result, Gleeson CJ also formed part of the majority. However, in respect of the issue discussed in this comment, his Honour the Chief Justice was in dissent. Accordingly, I refer to his Honour's judgment as a dissenting judgment, and the joint judgment as the majority judgment.

[6] NEAT Domestic [2003] HCA 35; (2003) 77 ALJR 1263, 1263 [2] (Gleeson CJ), quoting the Explanatory Memorandum relating to the amending Act.

[7]Ibid.

[8] Australian Wheat Board Ltd, 2003 Annual Report (2003) 91 <http://www.awb.com.au/awbl/aboutawb/report/index.html> at 23 February 2004.

[9]Ibid.

[10] A euphemism for a single export-trade desk.

[11]Wheat Marketing Act 1989 (Cth) s 57(3B).

[12] Note, approval by AWBI was only required in the case of bulk-exports — ie exports of economically significant quantities that may affect the monopoly.

[13]Section 4(1) of the TPA, which defines 'corporation'.

[14] See, eg, s 46 of the TPA (Misuse of market power).

[15] For the purposes of this comment, I will treat all six requests collectively as one. The facts surrounding each request are not relevant to the issue dealt with here.

[16] The policy was best summed up by the statement of Mr Flügge, AWB's Chairman, on 24 January 2000 to a meeting of local durum growers at Gunnedah (quoted in NEAT Domestic [2003] HCA 35; (2003) 77 ALJR 1263, 1277–8 [77](Kirby J)): 'I have two things to say to you, the first is good afternoon and the second is there will be no permits granted for the bulk export of any types of wheat.'

[17] See s 57(6) of the Act. I discuss below whether the removal of immunity would in fact have been the necessary consequence of such an order: see below, heading IV(A): 'A flawed case? '.

[18] One commentator has incorrectly noted that the ADJR Act issue was a not a live issue in this case: Christos Mantziaris, 'A "Wrong Turn" on the Public/Private Distinction: Neat Domestic Trading Pty Ltd v AWB Ltd' (2003) 14 Public Law Review 197, 199. However, as explained, the ADJR Act was in fact central to the litigation. All members of the Court acknowledged this: NEAT Domestic [2003] HCA 35; (2003) 77 ALJR 1263, 1266 [9], 1268 [17], 1270 [28] (Gleeson CJ), 1275 [55] (McHugh, Hayne and Callinan JJ), 1280 [93] (Kirby J). Also see Transcript of Proceedings, NEAT Domestic (High Court of Australia, 14 November 2002), 3– 6.

[19] I note that their Honours did not consistently adopt the language of the ADJR Act. As will become apparent, this was a major deficiency in their Honours' judgment, which in my opinion led them into error: see below, heading II(B)(1): 'The character question'.

[20]NEAT Domestic [2003] HCA 35; (2003) 77 ALJR 1263, 1274 [51], 1275–76 [57–64].

[21] Ibid. Their Honours dealt with these two points together. Note, it was accepted by NEAT that AWBI may consider its own commercial interests: ibid 1275 [60].

[22] [1985] HCA 70; (1985) 157 CLR 290 ('Mayer').

[23]Ibid 301–2 (Mason, Deane and Dawson JJ).

[24]NEAT Domestic [2003] HCA 35; (2003) 77 ALJR 1263, 1275 [54].

[25]Ibid.

[26] Ibid 1280–1 [95].

[27]Ibid 1281 [96].

[28]Ibid 1282 [103].

[29] Ibid 1283 [110]–[111], citing Forbes v New South Wales Trotting Club Ltd [1979] HCA 27; (1979) 143 CLR 242, [262] (Barwick CJ).

[30] Ibid 1283–4 [112]–[113], citing R v Panel on Take-overs and Mergers; Ex parte Datafin [1986] EWCA Civ 8; [1987] 1 QB 815 ('Datafin').

[31] Ibid 1284 [116], citing Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 336 (Mason CJ).

[32] Ibid 1285 [122], quoting the primary judge at Neat Domestic Trading Pty Ltd v AWB Ltd [2000] FCA 1866; (2000) 64 ALD 29, 40 [42] (Matthews J).

[33]Ibid 1285 [121], 1286 [125].

[34] Ibid 1270 [27]. His Honour answered the merits question (whether the decisions by AWBI involved the inflexible application of a policy without reference to the merits of the particular request) against NEAT and therefore it was strictly unnecessary for him to decide the jurisdictional question.

[35]Ibid 1270 [29].

[36] Ibid 1273 [45], 1275 [50], 1276 [64].

[37]Ibid 1274 [49].

[38]See, eg, ibid 1276 [63].

[39] [1963] UKHL 2; [1964] AC 40.

[40] See Mark Aronson and Bruce Dyer, Judicial Review of Administrative Action (2nd ed, 2000) 55– 6; and Lord Woolf, Jeffrey Jowell and AP Le Sueur, De Smith, Woolf & Jowell’s Principles of Judicial Review (1999) 60.

[41] R v Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170, 225 (Mason J); Bread Manufacturers of New South Wales v Evans [1981] HCA 69; (1981) 180 CLR 404, 414–15; and Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 609.

[42] For example, Ross v Costigan [1935] ArgusLawRp 44; (1982) 41 ALR 319, Huston v Costigan (1982) 45 ALR 559, Lloyd v Costigan [1942] ArgusLawRp 35; (1983) 48 ALR 241, Attorney-General (Cth) v Queensland (1990) 94 ALR 515, 533 (Royal Commission decisions and rulings regarding the summoning of witnesses, the taking of evidence and the scope of the inquiry); Lamb v Moss [1983] FCA 254; (1983) 49 ALR 533, 558–9, Emanuele v Cahill (1987) 71 ALR 302 (magistrates' rulings at committal hearings); and Brewer v Castles (No 1) (1984) 52 ALR 571, 575, Love v Attorney-General (NSW) (1990) 169 CLR 307, Ferris v Commonwealth Director of Quarantine (1991) 29 FCR 147, 152–3, Lego Australia Pty Ltd v Paraggio [1994] FCA 1286; (1994) 124 ALR 225, 238, Ousley v R [1997] HCA 49; (1997) 192 CLR 69 (decision by a justice or superior court judge to issue a warrant).

[43]NEAT Domestic [2003] HCA 35; (2003) 77 ALJR 1263, 1275 [60].

[44]Ibid 1276 [62].

[45]Ibid 1276 [63].

[46] Aronson and Dyer make a similar point, but in more general terms: Aronson and Dyer,above n 40, 131.

[47] NEAT Domestic [2003] HCA 35; (2003) 77 ALJR 1263, 1275 [54].

[48]Ibid 1275 [54].

[49] [1985] HCA 70; (1985) 157 CLR 290.

[50]NEAT Domestic [2003] HCA 35; (2003) 77 ALJR 1263, 1275 [54].

[51]Mayer [1985] HCA 70; (1985) 157 CLR 290, 301 (Mason, Deane and Dawson JJ).

[52]Ibid 302 (Mason, Deane and Dawson JJ).

[53] Ibid 301 (Mason, Deane and Dawson JJ). This aspect of the decision has also been applied in Chan Kee Yim v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; AustralianWool Testing Authority Ltd v Commisioner of Taxation [1990] FCA 361; (1990) 26 FCR 171, 896; and Hutchins vCommissioner of Taxation (1996) 65 FCR 269.

[54]See heading II(B)(1): 'The character question'.

[55]Evans v Friemann [1981] FCA 85; (1981) 3 ALD 326, 331; and Glenister v Dillon [1976] VicRp 57; [1976] VR 550.

[56]Aronson and Dyer, above n 40, 56.

[57] Commonwealth Administrative Review Committee Report, Parliamentary Paper No 144 of 1971, [1] (emphasis added).

[58]Ibid.

[59] Commonwealth, Interim Report of the Committee on Administrative Discretions, Parliamentary Paper No 53 (1973).

[60] Commonwealth, Final Report of the Committee on Administrative Discretions, Parliamentary Paper No 316 (1973).

[61] Commonwealth, Prerogative Writ Procedures: Report of Committee of Review, Parliamentary Paper No 56 (1973).

[62]NEAT Domestic [2003] HCA 35; (2003) 77 ALJR 1263, 1280–1 [95]–[96] (Kirby J).

[63]See discussion above, heading II(B)(1): 'The character question'.

[64] (1999) 202 CLR 133, 261 [374]–[375] ('Canadian Airlines').

[65] NEAT Domestic [2003] HCA 35; (2003) 77 ALJR 1263, 1280–1 [95].

[66]Ibid.

[67] Canadian Airlines (1999) 202 CLR 133, 262 [376] citing Hughes Aircraft Systems International v Airservices Australia [1997] FCA 558; (1997) 76 FCR 151, 179–80 (Finn J). See also Finn, 'A Sovereign People, A Public Trust' in Finn (ed), Essays on Law and Government (1995) 1, 12–13.

[68] Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1, 151 (Mason J) ('The Franklin Dam case'). See also Herald Weekly Times Ltd v Commonwealth [1966] HCA 78; (1966) 115 CLR 418; Murphyores Inc Pty Ltd vCommonwealth (1976) 136 CLR 1; Actors and Announcers Equity Association of Australia vFontana Films Pty Ltd [1982] HCA 23; (1982) 150 CLR 169, 192 (Stephen J); Alexandra Geriatric Hospital Pty Ltd v Commonwealth [1987] HCA 6; (1987) 162 CLR 271, 279; and Cunliffe v Commonwealth (1994) 182 CLR [272], 334–5. See also Julius Stone, Legal System and Lawyers' Reasonings (1964) 248-252.

[69]Jumbunna Coal Mine No Liability v Victorian Coal Miners' Association (1908) 6 CLR 309, 368.

[70] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 335–6 (Mason CJ).

[71] See Administrative Review Council, The Contracting Out of Government Services, Issues Paper (1997). A recent example of the shift is seen in the contracting out of employment services: see Rachel Livingston, 'Contracting out of employment services in Australian and administrative law' (2003) 10 Australian Journal of Administrative Law 77.

[72] See especially Datafin [1986] EWCA Civ 8; [1987] 1 QB 815; and R v Criminal Injuries Compensation Board, Ex parte Lain [1967] 2 QB 864.

[73] Lord Woolf, Jowell and Le Sueur, above n 40, 65.

[74][1986] EWCA Civ 8; [1987] 1 QB 815.

[75]Ibid 838 (Sir John Donaldson MR).

[76]Ibid 845 (Lloyd LJ).

[77]Ibid 846.

[78]Lord Woolf, Jowell and Le Sueur, above n 40, 68–70.

[79] See, eg, R v Advertising Standards Authority; Ex parte Insurance Service plc (1990) 2 Admin LR 77, 86 (Glidewell LJ); and R v Football Association Ltd; Ex parte Football League Ltd [1993] 2 All ER 833.

[80] See R v Criminal Injuries Compensation Board; Ex parte Lain [1967] 2 QB 864, 884 (Siplock LJ) cited with approval in Datafin [1986] EWCA Civ 8; [1987] 1 QB 815, 849 (Lloyd LJ).

[81] See Datafin [1986] EWCA Civ 8; [1987] 1 QB 815, 845 (Lloyd LJ); and R v Football Association Ltd; Ex parte Football League Ltd [1993] 2 All ER 833, 848 (Rose J).

[82]Datafin [1986] EWCA Civ 8; [1987] 1 QB 815, 846 (Lloyd LJ).

[83] See J Black, 'Constitutionalising Self-Regulation' (1996) 59 Modern Law Review 24. See more generally, J Freeman, 'The Private Role in Public Governance' (2000) 75 New York University Law Review 543.

[84]See above, heading II(B)(2) 'The enactment question'.

[85] See Chapmans Ltd v Australian Stock Exchange Ltd [1996] FCA 474; (1996) 67 FCR 402, 409 (Lockhart and Hill JJ); CEA Technologies Pty Ltd v Civil Aviation Authority [1994] FCA 1180; (1994) 51 FCR 329, 333 (Neaves J); and Lewins v Australian National University (1995) 133 ALR 452, 460 (Lee J).

[86] [1984] HCA 49; (1983) 155 CLR 234 ('Glasson').

[87][1993] FCA 473; (1993) 45 FCR 164 ('General Newspapers').

[88]See s 5(1)(a) of the ADJR Act.

[89]General Newspapers [1993] FCA 473; (1993) 45 FCR 164, 194.

[90]Ibid 173 (emphasis added).

[91]Ibid.

[92] Graeme Hill, 'The Administrative Decisions (Judicial Review) Act and "under an enactment": Can Neat Domestic be reconciled with Glasson?' (2004) 11 AJ Admin L 135. The unstated premise of this article is that the decision in Glasson is correct.

[93] [1984] HCA 49; (1983) 155 CLR 234, 241 (emphasis added).

[94]Ibid.

[95] Section 76 of the Constitution provides:

Additional original jurisdiction

The Parliament may make laws conferring original jurisdiction on the High Court in any matter:

(i) arising under this Constitution, or involving its interpretation;

(ii) arising under any laws made by Parliament;

(iii) of Admiralty and maritime jurisdiction;

(iv) relating to the same subject-matter claimed under the laws of different

States.

[96] R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50; (1945) 70 CLR 141, 154 (Latham CJ); Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367, 408; and LNC Industries Ltd v BMW (Australia) Ltd [1983] HCA 31; (1983) 151 CLR 575, 581.

[97] [1983] HCA 31; (1983) 151 CLR 575 ('LNC'). The issue in LNC was whether the Supreme Court of New South Wales was exercising federal jurisdiction in relation to a breach of trust claim, where the subject matter of the trust was quota rights transferred under a Commonwealth licence to import. By finding that the Supreme Court was exercising federal jurisdiction, the application for leave to appeal to the Privy Council was dismissed.

[98] [1945] HCA 50; (1945) 70 CLR 141 ('Barrett').

[99] [1971] HCA 39; (1971) 124 CLR 367 ('Felton').

[100]LNC [1983] HCA 31; (1983) 151 CLR 575, 581 (emphasis added, citations omitted).

[101]Evans v Friemann [1981] FCA 85; (1981) 3 ALD 326, 330.

[102]Section 8(1) of the ADJR Act confers jurisdiction on the Federal Court.

[103]Barrett [1945] HCA 50; (1945) 70 CLR 141, 154 (Latham CJ); and Felton [1971] HCA 39; (1971) 124 CLR 367, 374 (Barwick CJ).

[104] [1945] HCA 50; (1945) 70 CLR 141, 154.

[105] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 335–6 (Mason CJ).

[106] [1990] HCA 33; (1990) 170 CLR 321, 336.

[107] See Bostik (Australia) Pty Ltd v Gorgevski (No 2) (1992) 36 FCR 439 ('Bostik'); and Poulos v Waltons Stores (Interstate) Ltd (1986) 15 IR 335. In Bostik, the Full Federal Court applied the interpretation given to s 76(ii) of the Constitution to s 347(1) of the Industrial Relations Act 1988 (Cth), which provided that (emphasis added): [a] party to a proceeding (including an appeal) in a matter arising under this Act shall not be ordered to pay the costs incurred by any other party unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause.

[108]Section 57(6)(b) of the Act.

[109] See NEAT's oral submissions: Transcript of Proceedings, NEAT Domestic (High Court of Australia, 14 November 2002), 4.

[110] Note, in its oral submissions NEAT did not address this point: Transcript of Proceedings,NEAT Domestic (High Court of Australia, 14 November 2002), 4.

[111] Section 75(v) of the Constitution provides:

Original jurisdiction of the High Court

In all matters:

...

(v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;

the High Court shall have original jurisdiction.

[112] Vietnam Veterans' Affairs Association of Australia New South Wales Branch Inc v Cohen [1996] FCA 981; (1996) 70 FCR 419, 432; Businessworld Computers Pty Ltd v Australian Telecommunications Commission [1988] FCA 206; (1988) 82 ALR 499, 500 (Gummow J); Broken Hill Pty Co Ltd v National Companies and Securities Commission (1986) 61 ALJR 124, 127 (Dawson J); and R v Murray and Cormie [1916] HCA 58; (1916) 22 CLR 437, 452 (Isaacs J). Note, Aronson and Dyer argue that Corporations Law corporations exercising executive-like functions should be considered 'officers of the Commonwealth': Aronson and Dyer, above n 40,26.

[113] AWBI is not an 'agency', 'Commonwealth authority', 'Commonwealth company', or 'government business enterprise' subject to review by the Auditor-General: see ss 11(agencies), 12 (Commonwealth Authorities) and 13 (Commonwealth companies) of the Auditor General Act 1997 (Cth) (in force from 1 January 1998: Commonwealth Gazette 1997, No GN49); s 5 (Commonwealth agency) of the Financial Management and Accountability Act 1997 (Cth); ss 5 (definition of 'government business enterprise'), 7 (Commonwealth authority) and 34 (Commonwealth company) of the Commonwealth Authorities and Companies Act 1997 (Cth); and regulation 4 of Commonwealth Authorities and Companies Regulations 1997 (Cth). Note, the Audit Act 1901 (Cth) was repealed by Audit (Transitional and Miscellaneous) Amendment Act 1997 (Cth), sch 1, item 1, which accompanied the enactment of the Auditor-General Act 1997 (Cth).

[114] The Commonwealth Ombudsman has the authority to investigate complaints in relation to Corporations Law companies, in which the Commonwealth has a certain interest: Ombudsman Act 1976 (Cth), ss 5(1)(a), 3 (definition of 'Commonwealth-controlled company') and 3A. In this case, AWBI does not fall within this category.

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