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Not So Neat: Non-Statutory Corporations and the Reach of the Administrative Decisions (Judicial Review) Act 1977

Published online by Cambridge University Press:  24 January 2025

Neil Arora
Neil Arora*
Affiliation:
Honourable Justice WMC Gummow, AC
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Type
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Federal Law Review , Volume 32 , Issue 1 , March 2004 , pp. 141 - 161
Copyright
Copyright © 2004 The Australian National University

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Footnotes

The views expressed in this article are those of the author.

References

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) 71 CLR 29. Also see Heiner v Scott (1914) 19 CLR 381, 392; and Bank of New South Wales v Commonwealth (1948) 76 CLR 1, 361.

3 NEAT Domestic Trading Pty Limited v Australian Wheat Board Ltd (2003) 77 ALJR 1263 ('NEAT Domestic').

4 NEAT Domestic (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, hisHonour 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) 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) 77 ALJR 1263, 1277 – [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) 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) 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) 157 CLR 290 ('Mayer').

23 Ibid 301-2 (Mason, Deane and Dawson JJ).

24 NEAT Domestic (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) 143 CLR 242,262 (Barwick CJ).

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

31 Ibid 1284 [116], citing Australian Broadcasting Tribunal v Bond (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) 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 ofa policy without reference to the merits of the particular request) against NEAT and therefore it was strictly unnecessary for him to decide thejurisdictional question.

35 Ibid 1270 [29].

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

37 Ibid 1274 [49].

38 See, eg, ibid 1276 [63].

39 [1964] AC 40.

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

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

42 For example, Ross v Costigan (1982) 41 ALR 319, Huston v Costigan (1982) 45 ALR 559, Lloyd v Costigan (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) 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) 124 ALR 225, 238, Ousley v R (1997) 192 CLR 69 (decision by a justice or superior court judge to issue a warrant).

43 NEAT Domestic (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) 77 ALJR 1263, 1275 [54].

48 Ibid 1275 [54].

49 (1985) 157 CLR 290.

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

51 Mayer (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; Australian Wool Testing Authority Ltd v Commisioner of Taxation (1990) 26 FCR 171, 896; and Hutchins v Commissioner of Taxation (1996) 65 FCR 269.

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

55 Evans v Friemann (1981) 3 ALD 326, 331; and Glenister v Dillon [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) 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) 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) 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) 158 CLR 1, 151 (Mason J) ('The Franklin Dam case').See also Herald Weekly Times Ltd v Commonwealth (1966) 115 CLR 418; Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1; Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd (1982) 150 CLR 169, 192 (Stephen J);Alexandra Geriatric Hospital Pty Ltd v Commonwealth (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) 170 CLR 321, 335-6 (Mason CJ).

71 See Administrative Review Council, The Contracting Out of Government Services, Issues Paper (1997). A recentexample 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 [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 [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 [1987] 1 QB 815, 849 (Lloyd LJ).

81 See Datafin [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 [1987] 1 QB 815, 846 (Lloyd LJ).

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

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

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

86 (1983) 155 CLR 234 ('Glasson').

87 (1993) 45 FCR 164 ('General Newspapers').

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

89 General Newspapers (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 (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) 70 CLR 141,154 (Latham CJ); Felton v Mulligan (1971) 124 CLR 367, 408; and LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575, 581.

97 (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) 70 CLR 141 ('Barrett').

99 (1971) 124 CLR 367 ('Felton').

100 LNC (1983) 151 CLR 575, 581 (emphasis added, citations omitted).

101 Evans v Friemann (1981) 3 ALD 326, 330.

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

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

104 (1945) 70 CLR 141, 154.

105 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 335-6 (Mason CJ).

106 (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) 70 FCR 419,432; Businessworld Computers Pty Ltd v Australian Telecommunications Commission (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) 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 enactmentof 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.