Vietnam Veterans' Affairs Association Of Australia New South Wales Branch Inc v Cohen Alex and Ors (Constituting the Specialists Medical Review Council) [1996] FCA 981

CATCHWORDS

ADMINISTRATIVE LAW - objection to competency - respondents contend court has no jurisdiction to review determinations - whether determinations of Statements of Principles made pursuant to s 196B(2) and (3) are 'legislative' or 'administrative' in character - Statements have binding effect - Statements apply generally to claims relating to pensions - Statements are 'disallowable instruments' - Statements legislative in nature - whether Court has jurisdiction under s 39B of the Judiciary Act 1903 (Cth) - whether respondent is an officer of the Commonwealth - Authority and Council are bodies corporate therefore not relevantly officers of the Commonwealth when fulfilling functions of the Authority or Council - Whether Court has accrued jurisdiction under ss 21, 22, & 23 of the Federal Court of Australia Act 1976 (Cth) - ss 21, 22, 23 do not confer jurisdiction in absence of any federal matter.

Veterans Entitlement Act 1986 (Cth), ss 196B(2) & (3), 196(D), 196Y, 120(1) & (3), 120A(3)

Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 6

Judiciary Act 1903 (Cth) s 39B

Federal Court of Australia Act 1976 (Cth) ss 21, 22, & 23

Acts Interpretation Act 1901 (Cth) s 48A

Austral Fisheries Pty Ltd v Minister for Primary Industries and Energy (1992) 37 FCR 463, considered

Aerolineas Argentinas v Federal Airports Corporation (1995)

63 FCR 100, applied

Commonwealth v Grunseit (1943) 67 CLR 58, considered

Queensland Medical Laboratory v Blewett (1988) 84 ALR 615, considered

Melbourne Pathology Pty Ltd v Minister for Human Services and Health (1996) 40 ALD 565, considered

Prentis v Atlantic Coastline Company (1908) US 211 at 210, applied

Broken Hill Proprietary Co v National Companies and Securities Commission (1986) 61 ALJR 124, cited

Businssworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499, cited

New South Wales Aboriginal land Council v Aboriginal and Torres Strait Islander Commission (1995) 59 FCR 369, considered

Post Office Agents Association Limited v Australian Postal Commission (1988) 84 ALR 563, distinguished

Phillip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457, considered

Fencott v Muller (1983) 152 CLR 570, considered

Buck v Comcare (1996) 137 ALR 335, considered

De Smith, Woolf, Jowell; Judicial Review of Administrative Action (5th ed) 1995

Report of the Administrative Review Council to the Attorney-General, "Rule Making by Commonwealth Agencies", Report No 35, Parliamentary Paper No 93 of 1992

VIETNAM VETERANS' AFFAIRS ASSOCIATION OF AUSTRALIA NEW SOUTH WALES BRANCH INC. - v -

ALEX COHEN, MARGARET McCREDIE and GRAHAM GILES, constituting the Specialist Medical Review Council (First Respondents),

REPATRIATION COMMISSION (Second Respondent), REPATRIATION MEDICAL AUTHORITY (Third Respondent), SPECIALIST MEDICAL REVIEW COUNCIL (Fourth Respondent)

No NG111 of 1996

Tamberlin J

Sydney

15 November 1996

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY) No. NG111 of 1996

GENERAL DIVISION )

BETWEEN: VIETNAM VETERANS'

ASSOCIATION OF AUSTRALIA

NEW SOUTH WALES BRANCH INC

Applicant

AND: ALEX COHEN,

MARGARET McCREDIE and

ANDREW GILES, constituting

the Specialist Medical

Review Council

First Respondents

REPATRIATION COMMISSION

Second Respondent

REPATRIATION MEDICAL

AUTHORITY

Third Respondent

SPECIALIST MEDICAL REVIEW

COUNCIL

Fourth Respondent

CORAM: TAMBERLIN J

PLACE: SYDNEY

DATED: 15 NOVEMBER 1996

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1. The Objection to Competency be allowed.

2. The application be dismissed.

3. The applicant pay the respondents' costs.

NOTE: Settlement and entry of orders is dealt with in accordance with Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA)

NEW SOUTH WALES DISTRICT REGISTRY) No. NG111 of 1996

GENERAL DIVISION )

BETWEEN: VIETNAM VETERANS'

ASSOCIATION OF AUSTRALIA

NEW SOUTH WALES BRANCH INC

Applicant

AND: ALEX COHEN,

MARGARET McCREDIE and

ANDREW GILES, constituting

the Specialist Medical

Review Council

First Respondents

REPATRIATION COMMISSION

Second Respondent

REPATRIATION MEDICAL

AUTHORITY

Third Respondent

SPECIALIST MEDICAL REVIEW

COUNCIL

Fourth Respondent

CORAM: TAMBERLIN J

PLACE: SYDNEY

DATED: 15 NOVEMBER 1996

REASONS FOR JUDGMENT

TAMBERLIN J:

Introduction

An Objection to Competency has been filed by the Repatriation Commission ("the Commission") with respect to the application for review filed by the Vietnam Veterans' Association of Australia New South Wales Branch Inc ("the applicant").

The Commission contends that this Court has no jurisdiction to review two determinations, by the Repatriation Medical Authority ("the Authority"), of two Statements of Principles ("the Statements"), pursuant to powers conferred by the Veterans Entitlements Act 1986 (Cth) ("the Act"). It is also claimed that the Court has no jurisdiction to review two declarations made by the fourth respondent, the Specialist Medical Review Council ("the Council") arising from a review of the Statements.

The applicant seeks an order for review of the Statements and Declarations under ss5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") or, alternatively, s39B of the Judiciary Act 1903 (Cth) or, under s21 of the Federal Court of Australia Act 1976 (Cth) and the Court's accrued jurisdiction.

The Commission contends that there is no jurisdiction in the Court to review on any one or more of these bases.

The grounds for the Objection are, in summary, that:

(a) the determinations by the Authority of Statements of Principles pursuant to powers conferred by ss196B(2) and (3) of the Act are not decisions to which the ADJR Act applies because the determinations are "legislative" and not "administrative" in character;

(b) the Declarations made by the Council under s196W, in reviewing the Statements, are also of a legislative and not administrative character;

(c) section 39B of the Judiciary Act 1903 (Cth) cannot apply because the individuals named as first respondents are not proper parties to the application. None of the proper respondents to the application is an officer of the Commonwealth;

(d) there is no accrued jurisdiction.

History

On 8 March 1995 the Authority determined the Statements being Instruments Nos. 95 and 96, pursuant to subss196B(2) and (3) of the Act. These Statements concern cancer of the prostate and death from malignant neoplasm of the prostate.

In accordance with the Act, on 9 March 1995, those Statements of Principles were tabled in the House of Representatives and the Senate and on 15 March 1995, the making of those Instruments was notified in the Commonwealth of Australia Gazette ("the Gazette").

On 22 May 1995 a request was made under s196Y of the Act by the Australian Veterans and Defence Services Council for a review of the contents of those Instruments.

On 25 May 1995 a further request was made by the applicant for a review of the contents of Instrument No 95.

On 5 July 1995 in accordance with s196ZB of the Act, the Council published a notice in the Gazette stating that it intended to carry out a review of the information available to the Authority about cancer of the prostate and death from such cancer and inviting persons or organisations to make written submissions to the Council.

Subsection 196W(3) of the Act provides that the Council may carry out a review only if the period within which the Statement may be disallowed under s48A of the Acts Interpretation Act 1901 (Cth) has ended and the Statement has not been disallowed. The disallowance period, in fact, ended on 7 July 1995, which was the fifteenth sitting day after the tabling of the Statements in the House of Representatives. Neither Statement was disallowed.

On 10 July 1995, the Council informed the Authority that the Council had been asked to review the Statements.

On 7 November 1995, the Council held a meeting in relation to the review for the purpose of hearing oral submissions.

At that meeting the Australian Veterans and Defence Services Council, the applicant and others were represented.

The Council is a body corporate with perpetual succession under s196V of the Act. Its functions are set out in s196W and include the review of the contents of a Statement determined by the Authority.

The purpose of the Statements, in broad terms, is to provide the medical-scientific frame of reference when a claim is made for a pension or allowance for an injury, disease or death connected with service in the armed forces. If the claimed injury, disease or death is of a kind that is the subject of a Statement then, where subs120(3) applies, a hypothesis of causation by service will be reasonable for the purpose of that subsection only if the Statement upholds that hypothesis. Similarly, where subs120(4) applies the Commission can be reasonably satisfied that the injury, disease or death was war-caused or defence-caused, only if the Statement relating to that kind of injury, disease or death, upholds the contention that the injury, disease or death is on the balance of probabilities connected with the person's service.

A "reasonable hypothesis" arises in the context of a pension claim and relates to the nexus between the particular circumstances of the individual's service and his or her injury, disease or death.

Neither the Authority nor the Council is concerned with determining whether or not, as a general proposition, it is in fact a "reasonable hypothesis" that a particular factor causes a particular kind of injury, disease or death. One or more factors contained within a Statement must, however, provide support for the medical-scientific link which forms part of a "reasonable hypothesis" where the Statement is relied upon to uphold the suggested chain of causation, which links the particular circumstances of a veteran's service to his or her injury, disease or death. Therefore, the factors contained in a subs196B(2) Statement must be such that it can be said, in relation to every person for whom a factor is relevant and who has suffered or contracted or died from the relevant kind of injury or disease, that a "reasonable hypothesis" has been raised connecting that person's injury, disease or death with his or her service.

In the present matter, the first Statement is contained in Instrument No. 95 of 1995, determined by the Authority on 8 March 1995. It includes as a factor that must as a minimum exist before it can be said a "reasonable hypothesis" has been raised, connecting cancer of the prostate or death from cancer of the prostate with the circumstances of service:

"being exposed to herbicides in Vietnam;"

The second Statement is contained in Instrument No. 96 of 1995. The only factor referred to in that Instrument which must exist before it can be said that on the balance of probabilities, cancer of the prostate can be related to armed service is:

"inability to obtain appropriate clinical management for the malignant neoplasm of the prostate."

The applicant had sought from the Council a review of all the information that was available to the Authority when it determined the Statements and also sought a declaration as to whether certain matters should have been included.

The declaration of the Council was made on 22 December 1995 in these terms:

"1. In relation to the Repatriation Medical Authority Statement of Principles, Instrument No. 95 of 1995 concerning malignant neoplasm of the prostate and death from malignant neoplasm of the prostate, made under subsection 196B(2) of the Veterans' Entitlement Act 1986 (the Act), the Specialist Medical Review Council (the Council) declares, under subsection 196W(5) of the Act, that:

(a) the Council is of the view that there is insufficient sound medical-scientific evidence to justify the making of that Statement of Principles to include, as a factor, "being exposed to herbicides in Vietnam"; and

(b) the Council recommends that the Repatriation Medical Authority reconsider the inclusion of "being exposed to herbicides in Vietnam" as a factor having regard to the Reasons for Decisions of the Council, the information that was available to the Repatriation Medical Authority when it made that Statement of Principles, together with any further information that may arise from any further studies that might be undertaken following the recommendation in the MacLennan and Smith Report relating to malignant neoplasm of the prostate; and

(c) the Council is of the view that there is no sound medical-scientific evidence that justifies any other amendment of that Statement of Principles.

2. In relation to the Repatriation Medical Authority Statement of Principles, Instrument No. 96 of 1995 concerning malignant neoplasm of the prostate and death from malignant neoplasm of the prostate, made under subsection 196B(3) of the Act, the Council declares, under subsection 196W(5) of the Act, that the Council is of the view that there is no sound medical-scientific evidence that justifies an amendment of that Statement of Principles."

Relevant Statutory Provisions

The provisions of the Act which provide the bases for each of the Statements are for relevant purposes substantially similar in effect. It is pointless, for present purposes to set out the parallel provisions in full so I will quote only those provisions relating to the "reasonable hypothesis" aspect.

Subsection 196B(2) provides:

"(2) If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, ... can be related to:

(a) operational service rendered by veterans; or

...

the Authority must determine a Statement of Principles in respect of that kind of injury ... setting out:

(d) the factors that must as a minimum exist; and

(e) which of those factors must be related to service rendered by person;

before it can be said that a reasonable hypothesis has been raised connecting an injury, ... of that kind with the circumstances of that service." (Emphasis added)

By s196D a determination of the Authority under s196B is a "disallowable instrument" for the purposes of s46A of the Acts Interpretation Act 1901 (Cth). That section has the effect that the instruments must be laid before each House of Parliament and can be disallowed within fifteen days after they have been laid before the House. This situation arises because s46A incorporates Part XII of the Acts Interpretation Act 1901 (Cth) which relates to the making of regulations.

The Authority is a body corporate with perpetual succession and its debts are taken to be debts incurred by the Commonwealth (s196A).

The Authority is an expert body comprised by a chairperson and four other members. One of these members must be a person having at least five years experience in the field of epidemiology (s196L).

The Chairperson and the other members must be registered medical practitioners or medical scientists with at least ten years' experience. (s196M).

The Council is also a body constituted by medical experts. Under s169ZF the Minister can only appoint a person to be a councillor if the person is a registered medical practitioner or medical scientist with at least ten years' experience. The Council is to have such numbers of members as the Minister determines (s196ZE). It is a body corporate with perpetual succession and its debts are taken to be incurred by the Commonwealth (s196V).

The main function of the Council is to carry out a review of the contents of Statements in respect of particular kinds of injury, disease or death by reviewing all information available to the Authority when it amended or determined the Statement under review (s196W).

By s196Y the Council can be requested to review the contents of a Statement. Where it receives such a request and it is of the view that there is some medical evidence on which the Authority could have relied to amend or determine the Statement, the Council must make a declaration in writing, stating its views, setting out its evidence in support, and directing the Authority to amend the Statement, or to determine the Statement in accordance with directions of the
Council. It may also remit the matter for reconsideration in accordance with any directions of the Council (s5196W(4)).

Section 120(1) of the Act relates the standard of proof with respect to claims for a pension in respect of incapacity from injury, disease or death of a veteran, related to operational service rendered by the veteran. The Commission must determine that the injury, diseases or death was war-caused, "unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination."

Section 120(3) provides that:

"(3) In applying subsection (1) ... in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a) that the injury was a war-caused injury or a defence-caused injury;

(b) that the disease was a war-caused disease or a defence-caused disease; or

(c) that the death was war-caused or defence-caused;

as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person." (Emphasis added)

Section 120A(3) provides that:

"(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted ... with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

(a) a Statement of Principles determined under subsection 196B ... or

(b) ...

that upholds the hypothesis." (Emphasis added)

Second Reading Speech and Explanatory Memorandum

In his Second Reading Speech, (Hansard, House of Representatives, 9 June 1994), at 1807-1808, the Minister said:

"The first of these two measures, namely, the establishment of a Repatriation Medical Authority with power to issue binding statements of principles based on sound medical-scientific evidence, is intended to overcome these problems. These statements of principles will be legislative instruments and will be subject to disallowance.

.....

The bill will, in effect, define by reference to such statements of principles the concept of "reasonable hypothesis," as it appears in subsection 120(3) of the Veterans Entitlements Act. The result will be that a medical hypothesis linking particular kinds of injury, disease or death with war service that does not have a sound medical-scientific base will no longer be sufficient to constitute a "reasonable hypothesis". This will be a matter solely for the expert medical authority to determine. I stress that the opinion of a single medical expert may still be sufficient to constitute a "reasonable hypothesis", provided that such opinion has a sound medical-scientific base, as determined by the authority."

The Explanatory Memorandum to the Bill as introduced to the House of Representatives at (i) to (ii) relevantly reads:

"The new provisions deal with the determination of claims for pensions made on or after 1 June 1994 by reference to Statements of Principles. They will still require certain claims to be determined on the basis of a "reasonable hypothesis standard of proof", but with questions of medical causation to be determined in accordance with the amendments. ... This contrasts with the recommendation of the Baume Committee to move to a civil standard of proof for the determination of all claims.

...

The Authority will prepare Statements of Principles based on sound medical-scientific evidence that will exclusively state what factors related to service must exist to establish a causal connection between particular diseases, injuries or death and service.

Statements of Principles prepared by the Repatriation Medical Authority will be disallowable legislative instruments that will be binding on the Repatriation Commission, the Veterans' Review Board and the Administrative Appeals Tribunal.

This change is aimed at ensuring that medical opinions supported by little or no medical-scientific evidence do not prevail over the carefully developed mass of medical-scientific opinion.

It will not mean that only mainstream medical opinion would be regarded as reasonable, but it would require any alternative opinions to have a sound medical or scientific basis."

The Present Case

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Under ss5 and 6 of the ADJR Act, the Federal Court has jurisdiction to review decisions to which the Act applies or conduct for the purpose of making a decision to which the Act applies.

"Decision" to which the ADJR Act applies means:

"(a) a decision of an administrative character made, ... under an enactment, ..."

(see s3(1))

Section 8 of the ADJR Act confers power on the Court to hear and determine applications made to the Court under that Act.

The present issue is whether the determinations of the Statements comprised in Instruments Nos 95 and 96 are decisions of an "administrative character"?

The applicant submits as follows:

1. It is necessary to characterise the whole decision- making process provided under Parts X1A and X1B of the Act and not to consider s196B in isolation from its context.

2. The object of the ADJR Act is to enable, rather than restrict, judicial review of the actions of administrative bodies.

3. The distinction between legislative executive power is between delegation of power to make a law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of law. The first is to declare the policy of the law and fix the legal principles which control in given cases and the latter is to ascertain the facts and conditions on which the policy and principles apply. The Statements fall within the second category and are therefore administrative.

4. A Statement framed in general terms having an effect beyond a single case may still have executive as opposed to legislative character because it can be said to carry an existing law into execution. It does not create a new rule of conduct which is dependent on circumstances or considerations which were not stated or indicated in the empowering law. The Statements prescribe in themselves no rule of conduct but simply execute powers conferred by the law.

5. The determinations under s196B and s196W of the Act call for an investigation of the effect of sound medical-scientific evidence concerning a particular kind of injury, disease or death, the subject of a pension claim. The Authority must form a view as to whether the evidence can support a "reasonable hypothesis" of a causal relationship with military service which satisfies the statutory criteria. If it does then the parameters of the relationship must be stated as a minimum factor which must exist.

6. A Statement may be provided to assist the determination of a single claim . It need not apply to a broad range of claims. In substance it is said the Authority and the Council are engaged in determining factual issues of eligibility and the determination of factual matters is not an exercise of legislative power. The Authority and the Council apply non-discretionary statutory criteria to facts to arrive at a determination of a particular person's entitlement under the Act's criteria, with the decision making on the claim being shared.

7. The Statement does not affect the Act's eligibility criteria but provides for a "group" determination of common factual issues of causation. The controlling "rules" or policy on which these issues are decided are specified in the Act and are not delegated to the Authority or the Council.

8. The function of the Authority when making a Statement does not contain any component of policy and lacks any discretionary element. It is classically an execution of a law and fact finding in the application of laws as opposed to making laws. Therefore, it is intrinsically administrative. Reference is then made to a number of further indicators which support an "administrative characterisation". These are:

– decision making is given to bodies other than those politically responsible or policy-making in the area of veterans' entitlements, that is to say the Minister and the Commission, which is under his control;

– the expert qualifications of the Authority and the Council indicate that they are bodies functioning to assist in the execution of the laws by ascertaining facts to be applied by unqualified administrators. The criteria for their selection and establishment do not suggest a legislative body;

– decision making by the Authority and Council is externally initiated. This is aid to indicate an executive rather than policy role by the body;

– processes are provided for investigation of facts relevant to producing a decision on the particular case. See s196C;

– there are rights of hearing by persons affected by the Authority and Council statements and declaration;

– the bodies must specify the information considered and the reasons;

– there is a "merits" review by the Council involving a de novo consideration of the material before the Authority against the same statutory criteria with an opportunity for written and oral hearing. The fact there is a merits review is inconsistent with a "legislative function".

– Council must give reasons for its adverse decisions and this indicates an intention of the legislature to expose the making of a Statement to judicial review for errors of law according to administrative law principles. This is also inconsistent with a "legislative" function.

Application to present circumstances

The starting point for consideration is the characterisation is s196B(3) of the Act, which authorises the determination of the Statements.

That subsection requires the Authority to formulate a Statement listing the factors that must, as a minimum, exist, and be related to service rendered, before it can be said that a "reasonable hypothesis" has been raised connecting an injury, disease or death with that service. The Council can review the determinations.

The function is given to an expert body, the members of which are considered by the legislature to have the necessary qualifications and experience to form a view and formulate appropriate principles. Parliament cannot be expected to have the necessary expertise so it has delegated this function to a body which has this requisite expertise.

The Statements have binding legal effect on applicants in the sense that unless there is in force a Statement that upholds a reasonable hypothesis of a connection between the injury and the particular service, the claim must fail (S120A(3)).

A second feature is that the Statements are designed to apply generally to claims relating to pensions.

These two features of the Statements tend to indicate that the function is a legislative not administrative power. Cf Austral Fisheries Pty Ltd v Minister for Primary Industries and Energy (1992) 37 FCR 463 at 473, where O'Loughlin J referred to these two features to characterise the Fisheries' Management Plan, there under consideration. Of course the result, in that case, turned on the particular features of that Plan, but the above principles were set out and applied by his Honour.

In the Fifth Edition of De Smith, Woolf and Jowell, Judicial Review of Administrative Action, 1995 at 1006, the editors draw the distinction between legislative and executive power as follows:

"A distinction often made between legislative and administrative acts is that between the general and the particular. A legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases; an administrative act cannot be exactly defined, but it includes the adoption of a policy, the making and issue of a specific direction, and the application of a general rule to a particular case in accordance with the requirements of policy of expediency or administrative practice. Legal consequences flow from this distinction." (Emphasis added)

A further relevant but not controlling feature of the Statements is that they are "disallowable" instruments (s196D). They have in fact been laid before both Houses of Parliament as required before they were implemented. The making of the Statements must be notified in the Gazette to
ensure publicity. They are subject to disallowance by either House. Consequently, they are subjected to public exposure, comment, objection and criticism, and to parliamentary disallowance as part of the political process. These features were also considered relevant by O'Loughlin J, in the Austral Fisheries case (supra) at 471.

Beazley J recently considered the legislative-administrative characterisation question in Aerolineas Argentinas v Federal Airports Corporation (1995) 63 FCR 100. In that case her Honour held that a determination imposing security charges in respect of certain aircraft landings at various Federal airports in Australia was an administrative act. At 110 her Honour said:

"In the first place a determination made under the section is not subject to disallowance by Parliament. The right of disapproval in the Minister does not constitute control by the Parliament. Nor is notification in the Gazette a precondition for any by-law coming into effect ... Further, a determination made under s56 is subject to two types of executive control. The first, and perhaps most telling is that any determination made under s56 is subject to the Prices Surveillance Act (1983) (Cth). That Act applies in relation to the supply of goods or services by a Commonwealth authority. The Prices Surveillance Authority is given the function of inquiring into matters relating to prices for the supply of goods ... It would be a unique breed of legislative act which was subject to the control of such a body. The second form of executive control is that of the Minister, ... In my opinion, these factors lead to the conclusion that a determination made under s56 is administrative in character." (Emphasis added)

In my view, the above analysis, adopted by her Honour, is supportive of a conclusion in the present case that the decision is not of an administrative character.

In the present case, the Statements determined by the Authority are not subject to executive control. True it is that they are subject to reasoned reconsideration by another expert body, which has power to amend, vary or reject all or part of the Statements and it is the Statements as finally determined by the Council that are to apply. The body must disclose its reasons for the declarations. But this review does not change the character or effect of the determination. The decision of the Council upon review settles the principles which are to bind and apply generally. The declarations of the Council are not subject to executive control.

In The Commonwealth v Grunseit (1943) 67 CLR 58 at 82, Latham CJ said:

"The general distinction between legislation and the execution of legislation is that legislation determines the content of the law as a rule of conduct or a declaration as to power, right or duty, whereas executive authority applies the law in particular cases.... My brother Williams referred to the case of J W Hampton Jr & Co v The United States (1928) 276 US at 407, where it was said:

'The true distinction, therefore, is, between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law ...." .

In Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 at 635, Gummow J referred to Grunseit's case saying:

"Nor, if one accepts Latham CJ's proposition in Grunseit's case, supra, does one thereby deny the proposition that to take the step which has the immediate effect of changing the content of a law as a rule of conduct or declaration of power, right or duty, is to act legislatively. It is this concern which is of central importance in the present case."

Both these authorities were cited in the recent decision of Sundberg J of this Court in Melbourne Pathology Pty Ltd v Minister for Human Services and Health (1996) 40 ALD 565. His Honour there considered the way in which a delegation of power to formulate "principles" should be characterised. The case concerned the Health Insurance Act 1973 (Cth) , which relevantly provided:

"23DNB(1) If a person that is an approved pathology authority applies ... to the Minister for an allocation of units of entitlement to operate licensed collection centres ... the Minister must, ... do either of the following:

....

(b) allocate to the person a number of units of entitlement to operate licensed collection centres ...

....

(3) The Minister must determine in writing principles with which the Minister must comply in performing duties under this section.

(4) The principles that the Minister is to determine must include:

(a) the formula or other method for working out whether any units of entitlement ... should be allocated ...; and

(b) ...

(5) ... the Minister:

(a) must comply with any relevant principles in force under subsection(3); and

(b) may take into account any other matters not inconsistent with those principles, that he or she thinks relevant.

(6) A determination under subsection (3) is a disallowable instrument for the purposes of s46A of the Acts Interpretation Act 1901." (Emphasis added)

It can be seen that the Minister was empowered to determine the relevant principles. He was also charged with the application of those principles when determining allocation.

An objection to competency of the review application under the ADJR Act was made and upheld. In upholding the objection to ADJR jurisdiction, his Honour at 573 said:

"(1) Competency of application for review of determination.

The respondent contended that the application for review of determination No 6 is not competent on the ground that it does not relate to a decision of an administrative character within s5(1) of the ADJR Act. It was said that the determination laid down principles of general application to APAs and that this was a sign of its legislative character. Further, it was contended that the fact
that the determination was a disallowable instrument for the purposes of s46A of the Acts Interpretation Act 1901 (Cth) confirmed that character. In my view the objection is sound. Parliament could have invented its own principles, but it delegated the task to the minister. Thus the minister, in determining principles, was acting legislatively. See Queensland Medical Authority v Blewett (1988) 84 ALR 615 at 636 ... The conclusion that the determination is not susceptible of review under the AD(JR) Act does, not, however, dispose of the applicants' challenge to it. They also seek to review it under s39B of the Judiciary Act ..." (Emphasis added)

His Honour concluded that the Court had jurisdiction under s39B of the Judiciary Act 1903 (Cth) which permits review of both legislative and administrative action.

The two indicia applied by his Honour were that the determination laid down the principles of general application and that it was a disallowable instrument.

In Prentis v Atlantic CoastLine Company (1908) US 211 at 210, Holmes J (at 226) delivering the opinion of the Supreme Court, contrasted "legislation" which:

".... looks to the future and changes existing conditions by making a new rule to be applied thereafter to all or some part of those subject to its power."

with "judicial" inquiry which:

"... investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist."

The Report of the Administrative Review Council to the Attorney-General, entitled "Rule Making by Commonwealth Agencies", Report No. 35, Parliamentary Paper No 93 of 1992, refers to three broad indicia of legislative character. These are:

– that a legislative instrument has the effect of changing or determining the content of law, rather than applying the law.

– that a legislative instrument has a binding quality as opposed to one designed to provide guidance as to the way in which a decision-maker may or should act.

– that a legislative instrument is usually one which has general application and is not directed to apply only in a particular case.

These characteristics are not exhaustive or controlling but in the present case all three are satisfied. The Statements determine the content of the law rather than simply applying it, they have binding force, and they are of general application.

The formation of the views by the Authority required by s196B(2) and (3), must be characterised not in isolation, but in the context of the end result of that determination. The end result in the present case is a statement of binding general principles which is not necessarily directed to any specific case.

As Holmes J, said in Prentis (supra) (1908) 211 US 210 at 227:

".... it does not matter what inquiries may have been made as preliminary to the legislative act. Most legislation is preceded by hearings and investigations. But the effect of the inquiry, and of the decision upon it, is determined by the nature of the act which the inquiry and decision lead up ... The nature of the final act determines the nature of the previous inquiry." (Emphasis added)

In the present case, the nature of the act, to which the formation of the view and the determination of the Authority is directed, is the determination of the principles which should apply in the future. The Statements themselves, in my view, are legislative in character and therefore the requirement that the Authority "must form a view" on the balance of probabilities based on sound medical-scientific evidence available is also properly characterised as legislative and not executive or judicial in character. The character of the exercise involved in "forming a view" is coloured by the legislative act of prescribing principles.

As, in my view, the function of the Council is to reconsider and review the contents of the Statements and Declarations determined by the Authority, its function should be characterised in the same way.

I do not consider that the establishment of the Council to review the Statements on the merits and to give a reasoned decision requires any different characterisation of its function to that which is performed by the Authority. It is the Determinations of the Authority, as varied by the Council after reconsideration, which must be applied by the Commission and the Council's role is therefore "legislative" not "administrative".

My conclusion on the ADJR question is that the Statements and Declarations are legislative and not administrative in nature. Accordingly, this Court does not have jurisdiction under the ADJR Act to review either the Instruments or the Declarations.

Section 39B - Judiciary Act

An alternative basis of jurisdiction advanced is s39B of the Judiciary Act 1903 (Cth) which provides:

"39B(1) The original jurisdiction of the Federal Court ... includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer ... of the Commonwealth." (Emphasis added)

For this section to be enlivened it is necessary to have "a matter" involving "an officer of the Commonwealth". The jurisdiction is limited by reference to the form of relief and the presence of an officer as a respondent. It is important to
note that the Parliament has not conferred on the Federal Court jurisdiction under s75(iii) of the Constitution which refers to "matters":

"(iii) In which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party: ..."

The High Court has original jurisdiction in respect of these matters but the Federal Court does not.

The applicant's submission is that s39B jurisdiction is attracted because the first respondents, the members of the Council, are in that capacity officers of the Commonwealth.

The short answer to this submission is that the Statements and the Declarations are those of the bodies corporate and not of the individual members. The applicant seeks declarations that the Determinations and Declarations are invalid. These are not the acts of individual constituent members.

In addition, orders are sought by way of prohibition or injunction restraining the individual respondents from "making, repeating, implementing or otherwise acting upon" the Statements or the Declarations. Again, these Instruments and Declarations are the acts of the bodies corporate and not of the members either jointly or severally.

The third order sought is "by way of mandamus or otherwise" remitting the matters to the first individual respondents to be heard and decided according to law.

It is conceded that neither the Authority or the Council, being bodies corporate are within the description "an officer of the Commonwealth". Cf Broken Hill Proprietary Co Ltd v National Companies and Securities Commission (1986) 61 ALJR 124 at 127 per Dawson J; Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 500 per Gummow J.

It is also common ground that the individual first respondents are "officers" of the Commonwealth in the sense that they hold "office" as members of the Council.

The point of departure is that the respondents say that the first respondents are not relevantly officers of the Commonwealth because the challenged Instruments and Declarations are the acts of the bodies corporate. The relevant powers, obligations and functions under the Act are conferred on the Authority and Council, and not on the particular individual members who may comprise those bodies from time to time.

It may, of course, be that if an officer does something irregular, in relation to for example, the calling of a meeting or omits to perform some administrative act, as a member of the Council, then relief might be obtained against such a person as an individual. However, for present purposes, the Court is concerned with the consequences of Declarations by the Council itself and not with internal, procedural, or other matters which may involve the obligations of individual members. The first respondents did not make the challenged Declarations. The Council did.

In argument, the applicant referred to ss196ZG and 196ZH, which refer to the Councillors holding office or resigning from office. However, these provisions do not mean that the Instruments or Declarations made by the Authority or Council are the actions, conduct or decisions of the individual members. The Declarations are the collegiate acts of the Authority acting as separate legal entities.

In my view, no relevant relief can be granted against the first respondents as members of the fourth respondent under s39B. The only relevant relief in relation to the acts of the Council lies against the fourth respondent. The first respondents have been included in the defence as parties to attract jurisdiction under s39B of the Judiciary Act 1903 (Cth) and such inclusion is colourable. Accordingly, no jurisdiction is conferred by s39B in the present case. Cf New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission (1995) 59 FCR 369 at 383 per Hill J.

Accrued Jurisdiction

The applicant submits that even if the Court does not have jurisdiction under the ADJR Act or s39B, it nevertheless has "accrued" jurisdiction. The submission is that the Court has jurisdiction under ss21, 22, and 23 of the Federal Court of Australia Act 1976 (Cth), because the proceeding is brought under the ADJR Act and/or s39B "as a matter of substance not as a matter of artificiality or subterfuge".

These words are taken form the judgment of Davies J in Post Office Agents Association Limited v Australian Postal Commission (1988) 84 ALR 563 at 565, where his Honour said in relation to a challenge to jurisdiction under the ADJR Act on the basis that it was not a decision under an enactment:

"However, I am satisfied that the court has jurisdiction. The jurisdiction of the court under the ADJR Act has been invoked. The application is brought thereunder as a matter of substance, not as a matter of artificiality or subterfuge. The court has jurisdiction to deal with the claim and jurisdiction to deal with all other claims not otherwise within its jurisdiction arising out of the subject matter of the dispute: see Phillip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457; 33 ALR 465 and Fencott v Muller (1983) 152 CLR 570; 46 ALR 41. Indeed, issues of jurisdiction simpliciter seem to have no substance since the enactment of the Jurisdiction of Courts (Cross-Vesting) Acts.

I shall therefore dismiss the objections to competency, though the issue as to whether or not the challenged decision and conduct was taken under an enactment for the purposes of the ADJR Act is an issue which must be addressed in these proceedings."

As the respondents point out the decisions in Phillip Morris and Fencott cited by his Honour are distinguishable. They were cases where the federal element was only part of the matter or controversy. The word "matter" of course, is one of wide import, capable of including both federal and non-federal elements. These decisions were made in the context of a federal claim and a non-federal claim. (See Fencott 152 CLR 603 at 609-611).

The cross-vesting legislation, of course, did not extend the ambit of "federal" jurisdiction but only conferred State jurisdiction on the Federal Court.

The principle of accrued federal jurisdiction extends jurisdiction to the "whole matter" both federal and non-federal provided they involve common transactions or substrata of facts.

In those cases there was a federal matter within jurisdiction (trade practices) to which the non-federal claims (tort, deceit, negligence and breach of contract) could attach. In the present matter there is no federal jurisdiction attracted to which the applicants claimed relief could accrue.

In my view, neither Phillip Morris nor Fencott support the broad proposition that this Court has jurisdiction to grant the relief sought in the present case, because there is no jurisdiction under the ADJR Act or s39B of the Judiciary Act 1903 (Cth). This is not a case where federal jurisdiction is properly invoked and the Court can hear associated non-federal matters.

Phillip Morris (148 CLR 457 at 505-506, 529 and 547) makes it clear that ss22 of the Federal Court of Australia Act 1976 (Cth) confers power not jurisdiction. It is also clear that ss20, 21 and 23 of the Federal Court of Australia Act 1976 (Cth) assume that jurisdiction exists. They do not confer any jurisdiction.

The approach taken by Davies J in the Postal Commission case (supra) was followed by Hill J as a matter of comity in New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission (1995) 59 FCR 369 at 385. However, his Honour said:

"The question may be said to be one of construction of s 8 of the ADJR Act. When that section refers to "applications", does it refer to applications which are ultimately found to be for the review of relevant decisions or conduct, or do the words apply to applications in form purporting to be made under ss 5, 6 and 7, irrespective of whether they are ultimately found to fall within those sections?

The matter is clearly arguable and I am presently inclined to the view that jurisdiction is only conferred upon the Court once there is conduct or a decision under an enactment capable of review. If there is not, then it seems to me that the Court's jurisdiction conferred by s 8 of the ADJR Act ought not to be attracted. A fortiori, no jurisdiction would arise under the accrued jurisdiction. The case of Burgundy Royale is clearly distinguishable. There, application was made under the Trade Practices Act for relief against the Northern Territory. The Territory was not a person bound by the Act, so that no cause of action was available against it. The issue then arose as to whether common law claims made against a number of respondents could be dealt with under the accrued jurisdiction of the Court. It was held that the Court did have accrued jurisdiction in that case. This was because jurisdiction was, in any event, attracted under s 86 of the Trade Practices Act, notwithstanding that the person against whom relief was sought was not bound by the Trade Practices Act. In other words, the question of whether the Territory was bound by the Act was not one that went to jurisdiction.

To adopt this view would, however, involve my differing from the view of Davies J in Australian Postal Commission. It can not be said that in concluding as did his Honour was clearly wrong and despite my own views, I would, as a matter of comity, follow his Honour's course of accepting jurisdiction to entertain a claim at common law." (Emphasis added)

With respect, I agree with the preferred view expressed by Hill J. There is, in my opinion, in the present case, no relevant application made to the Court under the ADJR Act because the decision was not one of an administrative character. Section 8 cannot be used to confer jurisdiction in respect of determinations which are directed to decisions or conduct of a legislative character. To use the section in that
way circumvents the pre-requisite that there must be a decision of an administrative nature.

The ADJR Act was not designed to enable this Court to judicially review conduct or decisions which are properly characterised as legislative.

I am of the view that this is not an appropriate case in which to reserve the question of competency for determination in conjunction with, or at the same time as the determination of the merits of the applications made to this Court. Such a course is based on considerations of expediency and convenience.

In his interlocutory judgment in this matter, delivered on 3 April 1996, Sackville J determined that the Notice of Objection to Competency should be dealt with before the substantive hearing. His Honour was "reasonably confident" that the jurisdictional issue in the present case was self-contained and he rejected a submission by the applicant that the competency question ought to be dealt with at the hearing.

This is a further reason why I am not persuaded that the convenient or expedient course is to determine both jurisdiction and merits on the hearing of the merit.

The respondent also referred me to the recent decision of Finn J in Buck v Comcare (1996) 137 ALR 335 at 345-346, where his
Honour followed the approach taken by Davies J, to which I have referred above. However, because the Objection to Competency has been specifically fixed for determination and since I have formed a firm view that the application is not competent, the proper course is to allow the objection.

Conclusion

Accordingly, my conclusion is that the Objection to Competency should be allowed and the application for review should be dismissed with costs.

I certify that this and

the preceding thirty-six (36)

pages are a true copy of the

Reasons for Judgment herein of

his Honour Justice Tamberlin.

Associate:

Date: 15 November 1996

Counsel for Applicant: Mr D M J Bennett QC

Mr M B Smith

Solicitor for Applicant: Legal Aid Commission

Counsel for Respondents: Mr A Robertson SC

Mr P J Hanks

Solicitor for Respondents: Australian Government Solicitor

Date of Hearing: 4 November 1996

Date Judgment Delivered: 15 November 1996

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