Salerno, Dominic v National Crime Authority & Ors [1997] FCA 475

CATCHWORDS

ADMINISTRATIVE LAW - judicial review - decision of National Crime Authority to raid premises utilising warrants issued to State police officers attached to the National Crime Authority to authorise entry, search and seizure - whether a "decision" for the purposes of Administrative Decisions (Judicial Review) Act 1977 (Cth) - whether decision one made "under an enactment".

WORDS AND PHRASES - "decision", "under an enactment"

Administrative Decisions (Judicial Review) Act 1977 (Cth) - s 3

National Crime Authority Act 1984 (Cth) - ss 11, 12, 19, 22

Summary Offences Act 1953 (SA) - s 67

Cases Considered

Attorney-General of the Commonwealth v Queensland (1990) 25 FCR 125

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Australian National University v Lewins (1996) 138 ALR 1

Brewer v Castles (1984) 1 FCR 55

Collector of Customs v Agfa-Gevaert Ltd (1996) 71 ALJR 123

Evans v Friemann (1981) 35 ALR 428

Ferris v Commonwealth Director of Quarantine (1991) 29 FCR 147

General Newspapers Pty Ltd v Telstra Corporation (1993) 45 FCR 164

George v Rockett (1990) 170 CLR 104

Hutchins v Commissioner of Taxation (1996) 65 FCR 269

Lamb v Moss (1983) 49 ALR 533

DOMINIC SALERNO v NATIONAL CRIME AUTHORITY & ORS

SG 81 OF 1996

VON DOUSSA, DRUMMOND AND MANSFIELD JJ

5 JUNE 1997

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA No SG 81 of 1996

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

ON APPEAL FROM A JUDGE

OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: DOMINIC SALERNO

Appellant

AND: NATIONAL CRIME AUTHORITY

First Respondent

AND: JOHN KELSO

Second Respondent

AND: GRAHAM STEVENS

Third Respondent

AND: COLIN CUNNINGHAM

Fourth Respondent

AND: CLIVE LONGLEY

Fifth Respondent

AND: DIGBY MORRISON

Sixth Respondent

AND: NOEL BAMFORD

Seventh Respondent

AND: KATHRYN HELBIG

Eighth Respondent

CORAM: von Doussa, Drummond and Mansfield JJ

DATE: 5 June 1997

PLACE: Adelaide

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1. The appeal is dismissed, with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA No SG 81 of 1996

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

ON APPEAL FROM A JUDGE

OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: DOMINIC SALERNO

Appellant

AND: NATIONAL CRIME AUTHORITY

First Respondent

AND: JOHN KELSO

Second Respondent

AND: GRAHAM STEVENS

Third Respondent

AND: COLIN CUNNINGHAM

Fourth Respondent

AND: CLIVE LONGLEY

Fifth Respondent

AND: DIGBY MORRISON

Sixth Respondent

AND: NOEL BAMFORD

Seventh Respondent

AND: KATHRYN HELBIG

Eighth Respondent

CORAM: von Doussa, Drummond and Mansfield JJ

DATE: 5 June 1997

PLACE: Adelaide

REASONS FOR JUDGMENT

THE COURT:

This is an appeal from the decision of a judge of the Court in which he dismissed an application by the appellant brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for review of certain decisions of the respondents. His Honour upheld the respondents’ objection to the competency of that application on the ground that it did not relate to any decision that was reviewable under the Act.

South Australian police officers attached to the National Crime Authority (NCA), presumably under an arrangement of the kind referred to in s 58(1)(b) the National Crime Authority Act 1984 (Cth), entered the appellant’s residence in March 1995, conducted a search and seized certain property; then, in April 1995, they entered the office of the appellant’s solicitors and conducted another search and seized other property. The only authority the police had to make lawful these entries and seizures were general warrants issued by the Commissioner of the South Australian Police, pursuant to s 67 the Summary Offences Act 1953 (SA), to two of the police involved.

It can be seen that the appellant wants to review action taken by the NCA as but one step in the wide investigation it was authorised to embark upon pursuant to s 11(2) the NCA Act. In relation to the search at the appellant’s residence, the application sought review of “the decision of the first respondent pursuant to Sections 11 & 12 of the National Crime Authority Act 1984 (Cth) to authorise entry and search of the premises of the applicant situate at 39 Green Avenue, … on 22 March 1996, and the seizure therefrom of certain property of the applicant …”. The application also sought to review the conduct of the second to eighth respondents, said to be pursuant to the same provisions of the NCA Act, in entering the appellant’s residence and seizing certain of his property found there. This ground of review is an attack on conduct implementing the first respondent’s antecedent decision to authorise the entry, search and seizure and so could never be reviewable under s 6 the ADJR Act. The appellant recognised this when, in response from a request from the Bench to provide a statement of the decisions and conduct he was seeking to review, he ultimately amended his application to focus exclusively on certain decisions of the first respondent. The appellant also sought, in relation to the entry into the solicitor’s office, review of decisions by the first respondent and conduct of the other respondents similar to those the subject of the application with respect to the entry into his home.

Appellant’s counsel contends that the learned primary judge fell into error by identifying the wrong decision sought to be reviewed. At one point in his reasons, his Honour described that decision as “the decision of the NCA to enter and search the home of the applicant and the office of the applicant’s solicitors and seize certain articles and documents”. What counsel for the appellant said he was seeking to challenge was the decision of the NCA to authorise each entry, not the actual entries themselves: such a decision of the NCA, if reviewable under the ADJR Act and if invalid, might entitle the appellant to the relief claimed, which includes the return of the seized articles, even though the appellant may have no basis for complaining that the seizures were outside the warrants, considered in isolation. By identifying the relevant decision as he did, the learned primary judge was drawn into a consideration of whether that decision could be said to have been made under the NCA Act or rather under the authority to search granted by the warrant: he saw the question for him as whether a decision is made under an enactment, where the enactment is but one of a number of sources of power for the making of a decision. He held that while the NCA Act and the State warrant were both necessary sources of power for the making of the decision, the immediate or proximate source of power to enter, search and seize was the warrant, not the Act; the decision in question not being made under the Act, the application for review was therefore incompetent.

If it is correct that the learned primary judge dealt with a decision that was not the one with which the appellant was concerned, it is easy to understand how that could have happened. While the application for review attacks certain decisions and certain conduct, it quickly became apparent on the hearing of the appeal that the decision which the appellant wished to challenge was elusive of identification. Ultimately, appellant’s counsel identified seven decisions and was granted leave to amend the original application for review accordingly. The appeal was conducted on the basis that the question for determination was whether it was competent for the appellant to seek review of these particular decisions. They are:

“1. The decision of the first respondent as part of a special investigation under the NCA Act, to raid the premises of the appellant on 22 March 1996 by utilising a section 67 Summary Offences Act, 1953 (SA) warrant as the basis of their power to enter search and seize.

2. The decision of the first respondent as part of a special investigation under the NCA Act, to raid the premises of the appellant on 22 March 1996 without applying for or obtaining a section 22 of the NCA Act warrant as the basis of their power to enter search and seize.

3. The decision of the first respondent as part of a special investigation under the NCA Act, to raid the premises of the appellant on 22 March 1996 and not to apply for or obtain a section 22 of the NCA Act warrant as the basis of their power to enter search and seize.

4. The decision of the first respondent as part of a special investigation under the NCA Act, to raid the premises of the appellant’s solicitors on 12 April 1996 by utilising a section 67 Summary Offences Act, 1953 (SA) warrant.

5. The decision of the first respondent as part of a special investigation under the NCA Act, to raid the premises of the appellant’s solicitors on 12 April 1996 without applying for or obtaining a section 22 of the NCA Act warrant as the basis of their power to enter search and seize.

6. The decision of the first respondent as part of a special investigation under the NCA Act, to raid the premises of the appellant’s solicitors on 12 April 1996 and not to apply for or obtain a section 22 of the NCA Act warrant as the basis of their power to enter search and seize.”

7. The decision of the first respondent made on or about 6 May 1996 as part of a special investigation under the NCA Act, in the following terms:

‘I have directed that the search warrant issued on 12 April 1996 in respect of the sealed documents be executed by members of this office this afternoon.’”

Whether the NCA, in fact, made any such decisions is not, of course, in issue: the objection to competency must be determined on the assumption that decisions to the effect of those pleaded were made.

At the core of the appellant’s case is that, in conducting its investigations, the NCA cannot rely upon general warrants issued under the South Australian Act to State police officers in order to lawfully authorise entry, search and seizure, even though those officers are attached to the NCA and their involvement in the NCA investigation, in the course of which the entries are made, is authorised by s 49 the NCA Act. It was submitted that the only authority available to the NCA in that regard is a warrant issued under s 22 the NCA Act. The Court allowed the amendment to the application to permit the appellant to identify, if he could, a reviewable decision which might provide an opportunity for determining in proceedings under the ADJR Act this issue. It can be seen, from the way each of the seven decisions challenged was formulated, that the appellant’s core objection to the NCA’s actions can be raised in a review of each, provided always that one or other of them is a reviewable decision under the ADJR Act.

On the appeal, the issues upon which argument focused were whether the action of the NCA said to constitute the decision to be reviewed was a “decision” within the meaning of that term in the ADJR Act and, if so, whether it was a decision made “under an enactment” for the purposes of that Act. The appeal can be disposed of by considering whether the first of the NCA’s determinations now relied on is a reviewable decision: the first six decisions are but variants of each other, formulated to ensure that the critical question which the appellant wants determined will be dealt with, if his application is competent. The seventh decision is not materially different from the others, so far as its reviewability is concerned.

The word and phrase of critical importance to this appeal are but parts of the composite phrase that defines the term “decision to which this Act applies” in s 3(1) the ADJR Act, viz, “a decision of an administrative character made, proposed to be made, or required to be made, as the case may be (whether in the exercise of a discretion or not) under an enactment”. The proper approach to construction of such a phrase is discussed in Collector of Customs v Agfa-Gevaert Ltd (1996) 71 ALJR 123 at 127 and 129. But in identifying the decisions to which the ADJR Act applies, the courts have isolated certain features which a determination must have before it can be said to be a “decision” within the ADJR Act and also certain features which a “decision” must have, if it is to be one “under an enactment”. It is therefore appropriate to consider whether the first of the NCA decisions in the appellant’s amended application possesses each set of characteristics.

A “decision”?

Examination of whether the action by the NCA now complained of is reviewable under the ADJR Act must start with the judgment of Mason CJ, with whom Deane and Brennan JJ agreed, in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. His Honour discussed the meaning of the term “decision”, as it is used in the ADJR Act, at 335-338. After observing that “no narrow view should be taken of the word”, his Honour said that “[n]onetheless other considerations point to the word having a relatively limited field of operation”. One of the features of a reviewable “decision” his Honour identified was that of finality, ie, “an outcome reflecting something in the nature of a determination of an application, inquiry or dispute or, in the words of Deane J ‘a determination effectively resolving an actual substantive issue’”. He also said that a reviewable decision was one that:

“will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration.”

His Honour rejected the very wide broad interpretation of “decision” adopted by the Federal Court in Lamb v Moss (1983) 49 ALR 533 at 556 and said:

“My view is more in accord with the tentative opinion expressed earlier by Ellicott J in Ross v Costigan when he said that ‘it may well be that the word “decision” means an ultimate or operative determination not a mere expression of opinion or a statement which can of itself have no effect on a person’. However, I would not wish for myself to place emphasis on the words ‘of itself’ in this statement. To say that a reviewable decision is an ultimate or operative determination does not mean that antecedent conclusions or findings which contribute to the ultimate or operative decision are beyond reach. Review of an ultimate or operative decision on permissible grounds will expose for consideration the reasons which are given for the making of a decision and the processes by which it is made.”

Shortly before Bond, in Attorney-General of the Commonwealth v Queensland (1990) 25 FCR 125, French J, with whom Jenkinson J agreed, considered the question whether a Royal Commissioner appointed under Letters Patent issued by the Commonwealth Government to inquire into Aboriginal deaths in custody had made a “decision” reviewable under the ADJR Act when he made a formal ruling that he proposed to inquire into the death of a particular person. The Commissioner made this ruling, which involved a determination that the deceased was an “Aboriginal” within the meaning of that term in the Letters Patent, after considering a body of evidence put before him concerning the deceased’s aboriginality. Not everything French J said can, in the light of Bond, now be accepted. But his Honour’s comments about the impact which a decision must have if it is to be a reviewable decision are consistent with Mason CJ’s dicta in Bond and, in our opinion, identify a characteristic which a determination must have if it is to be a reviewable decision within the ADJR Act. French J, at 142, said:

“… Nor is it necessary that the determination directly affect legal rights or obligations so long as it has some real or practical effect. A provisional ruling or determination is also within the class provided it issues in some action or a refraining from some action. But a decision is more than thought, consideration or conclusion. It must be manifested in some way which emanates from an authoritative or responsible source. …

The ruling in issue is, in one sense, no more than an expression of the Commissioner’s opinion. It is an opinion formed upon evidence which although unchallenged, is not completely satisfactory and which may come to be seen in a different light as the inquiry proceeds. Nevertheless, even if regarded as provisional, it has real and practical consequences and will issue in action in the receipt and consideration of evidence relating to the death of Darren Wouters. It is more than mere thought or consideration or conclusion. It has been formally declared as an opinion formed for the purpose of the continuing conduct of the inquiry.”

His Honour accordingly held that the Commissioner’s ruling came within the ordinary meaning of the term “decision” in the ADJR Act.

The formulations in Bond and Attorney-General v Queensland of the characteristic of finality or operative effect which a determination must have if it is to be a reviewable decision within the ADJR Act can be traced to the judgment in Evans v Friemann (1981) 35 ALR 428, where Fox ACJ said, at 431:

“The making of a decision by a person is a mental process, which may be communicated orally or in writing, or be apparent from action taken or not taken. The making of the decision might precede, by a very short, or by a long period, communication, or manifestation. There are many variables. …

In ordinary usage, the special feature of a decision is its conclusiveness, or finality for the time being, and this is to be contrasted with the thought or consideration which precedes it. On the other hand a decision is not the same as a conclusion; the former normally has an objective, while the latter is more commonly associated with the end result of a process of thinking without the formation of an intention concerning future conduct. It would not be possible, even if the attempt were wise, to substitute a judicial exegesis for the word the legislature has used. For present purposes at least, it seems to me to amount to something of significance which is reasonably definite, which is final and conclusive for immediate purposes at least, which is manifested in some way, which emanates from an authoritative or responsible source, and which materially affects another person or persons.”

The NCA’s unqualified decision to raid the appellant’s home by utilising the general warrant as the basis of the power to enter, search and seize, is one which, when it is made, materially affects the legal rights of the appellant to quiet enjoyment of his home because it directs that action be taken which will have that result. Such a determination differs from other decisions to take steps in an investigation which do not involve any intrusion upon the legal rights of a person. There must be many steps commonly taken in the course of criminal investigations, including decisions to approach a range of sources in an attempt to uncover information of use in the investigation and decisions to take action, by way of, eg, surveillance, that do not involve any infringement of the target’s common law rights. That the NCA decision here in question has this impact on the appellant’s legal rights immediately it was made points to it having sufficient final or operative or determinative effect to qualify it as a “decision” for the purposes of the ADJR Act.

There is a further consideration which we think leads to the conclusion that the NCA determination here in question is a “decision”, for the purposes of the ADJR Act. It is now accepted that a decision to issue a search warrant pursuant to the provisions of Commonwealth statutes such as the Crimes Act 1914 (Cth) is reviewable under the ADJR Act. Once, there was debate about whether such a decision was outside the ADJR Act because it was a judicial rather than an administrative decision: see Brewer v Castles (1984) 1 FCR 55; Ferris v Commonwealth Director of Quarantine (1991) 29 FCR 147. But it has never been doubted that such a determination is a “decision”, as well as a decision “made under an enactment”, for the purposes of the ADJR Act. This is so, even though such a warrant can be issued not only in aid of proof of crime at trial but also in aid of investigation of crime - George v Rockett (1990) 170 CLR 104 at 119 - and, on proper materials, at any stage of an investigation. Moreover, a decision to issue a warrant in aid of an investigation is a reviewable decision even though it does no more than arm the investigator with lawful authority to take a step in his investigation, which would otherwise involve an unlawful trespass. The NCA determination to raid by utilising the general warrant must be assumed, for present purposes, to have been made in circumstances in which the NCA considered that the general warrant provided sufficient lawful authority for the search. The NCA therefore determined to do what it could otherwise only have done:

(a) if it had determined to make application for a warrant under s 22 the NCA Act or to have a member of the NCA staff apply for a warrant under the Crimes Act or under some other statute (assuming that that would be sufficient authority for a search contemplated by the NCA); and

(b) if it (or its staff member) had then successfully applied to a judge or magistrate to issue one or other of these warrants; and

The NCA has thus made for itself a determination to take action that includes action equivalent to, but which extends more widely than, the kind of action which a magistrate takes when he decides to issue a search warrant in aid of an investigation. The magistrate’s decision in such circumstances may well achieve nothing more than enabling the investigator to take a step in his investigation; yet it is still a “decision” for the purposes of the ADJR Act. We therefore consider that the determination of the NCA, as described by the appellant, has the necessary qualities, including that of finality, to enable it to be regarded as a reviewable “decision”.

A decision “under enactment”?

The decision which the appellant wishes to attack does not raise the problem with which the learned primary judge dealt, viz, whether a decision made under a number of possible sources, which include an enactment, can be said to be a decision made under that enactment. Instead, the question to be resolved is whether, in a case where a statute does no more than mark out in general terms the area of activity within which an organisation constituted under the statute can lawfully act, any activity of that body which is within power and which is capable of being described as a “decision”, is a decision under that enactment for the purposes of the ADJR Act.

The NCA is an organisation set up under statute to perform the limited role of investigating certain criminal activities. By s 11(1), “the general functions” of the NCA comprise the collection, analysis and dissemination to law enforcement agencies and other authorised persons of criminal information and intelligence relating to “relevant criminal activities”; the investigation, otherwise than pursuant to references from the Commonwealth Minister or a State Minister, of matters relating to “relevant criminal activities”; establishing or seeking to establish Commonwealth task forces and State task forces, as well as joint task forces, where the NCA considers that appropriate for the purpose of investigating matters relating to “relevant criminal activities”, and to co-ordinating investigations by such task forces. The term “relevant criminal activity” is defined in s 4 to mean “any circumstances implying, or any allegations, that a relevant offence may have been, or may be being, committed against a law of the Commonwealth, of a State or of a Territory”; the term “relevant offence” is also defined in s 4 in a way that can broadly be described as covering offences of the kind committed in the course of organised criminal activity and offences involving corruption of public officials. By s 11(2), “the special functions” of the NCA comprise investigations conducted under references from government under ss 13 and 14 of the Act. Where, as a result of the performance of any of its functions, the NCA considers that a recommendation should be made to the relevant Commonwealth or State Minister for reform of the law or of administration practices in certain respects, s 12(3) permits it to make such a recommendation. The NCA has many statutory powers enabling it to obtain information overtly or covertly. But these powers, which include power under s 22 to obtain a search warrant, can only be exercised in aid of its intelligence gathering and investigation functions.

The reference of 9 November 1995 which the NCA received from the Commonwealth Minister, pursuant to s 13, of the matter there identified and the reference of the same date which the NCA received from the relevant South Australian Minister, pursuant to s 14, of the matter there identified, authorised it to do nothing more than “to investigate the matter [referred by the Commonwealth Minister] in so far as the … relevant offences are or include, an offence or offences against a law of the Commonwealth” - s 11(2)(a) - “to investigate the matter [referred by the South Australian Minister] in so far as the … relevant offences are or include, an offence or offences against a law of [South Australia]” - s 11(2)(b). It is plain from s 12 that the NCA’s functions under these references are limited to investigation: s 12 provides that where, in carrying out an investigation either under its general or special functions, the NCA obtains evidence of an offence against the law of the Commonwealth or of a State, being evidence that would be admissible in a prosecution for that offence, the NCA must assemble the evidence and give it to the relevant Commonwealth or State police force or prosecution agency.

In Bond, Mason CJ, at 336 and 337, respectively, identified a decision made under an enactment as “a decision which a statute requires or authorizes” and “one for which provision is made by or under a statute”. These statements have been the subject of much judicial consideration. There is recent authority in this Court which takes up Mason CJ’s dicta and which is of particular relevance to the question for determination here.

In Hutchins v Commissioner of Taxation (1996) 65 FCR 269, the question was whether a decision by a Deputy Commissioner of Taxation to vote against a motion put at a meeting of creditors convened under Part X the Bankruptcy Act 1966 (Cth) was subject to review under the ADJR Act. The Court held the decision was not reviewable. The appellant debtor argued that the Deputy Commissioner’s decision to vote against the motion was a decision made under one or more of ss 8, 208 and 209 the Income Tax Assessment Act 1936 (Cth). Section 8 vested in the Commissioner “the general administration of this Act”; s 208 made income tax a debt due to the Commonwealth and payable to the Commissioner and s 209 empowered the Commissioner to recover unpaid tax by court action. Black CJ referred to the dicta of Mason CJ in Bond, observed that a decision will be “made under an enactment” either if the enactment expressly or impliedly requires or authorises the decision and said, at 272:

“Where a decision is impliedly required or where the authorisation for a decision is to be implied in a context as specific as that of s 6A(1)(c) of the Migration Act, as in Minister for Immigration and Ethnic Affairs v Mayer and Chan Yee Kin v Minister for Immigration and Ethnic Affairs, the enactment can be seen ‘to make provision’ for the making of the decision. Where, however, the authorisation is very general it is difficult to see how an enactment may be said ‘to make provision’ for a decision in the sense in which that expression was used by Mason CJ in Bond at 337. It seems to me that Mason CJ contemplated that there might be acts, capable of being called decisions, that were authorised in the sense of being within the general scope of powers conferred by an enactment but as to which the enactment could not be said to make provision, and which would therefore not be decisions under the enactment. …

If a decision is neither expressly nor impliedly required by an enactment and, although authorised, is authorised by an enactment only in a very general way, it is unlikely to have the character of a decision for which provision is made under an enactment. The connection between the text of the enactment and the decision is likely to be too remote for the decision to have the requisite character.”

His Honour then referred to the decision of the Full Court in General Newspapers Pty Ltd v Telstra Corporation (1993) 45 FCR 164 at 172, where it was said that the ADJR Act was concerned: “with decisions which, being authorised or required by an enactment, are given force or effect by the enactment or by a principle of law applicable to the enactment” and continued, at 273:

“… A decision that is neither expressly authorised or required, nor impliedly required, by an enactment but which has as its sole source of authority general powers of administration conferred by an enactment is unlikely to be one that is given force or effect by an enactment or by a principle of law applicable to the enactment.”

Of the appellant’s submission based on ss 8, 208 and 209 the Income Tax Assessment Act, his Honour said, at 273:

“In my view, s 8 of the Income Tax Assessment Act, standing on its own, gives no force or effect to the decision to vote at the meeting of creditors and is far too general in its terms for it to be concluded that it makes provision for that decision. …

… The recovery of income tax is a vital function of the Commissioner and it can readily be accepted that s 8 in combination with s 208 of the Act impliedly authorises the Commissioner to do what is reasonably necessary to recover the income tax that is a debt due to the Commonwealth and payable to the Commissioner. The authorisation is very general and the acts so authorised will necessarily include decisions to recover tax by proving in the estates of bankrupt taxpayers and decisions made to attend and vote at meetings of creditors where tax is owed by the debtor. In my view, however, the combination of ss 8 and 208, although authorising the decision in question, does not ‘make provision’ for it in the sense in which that expression was used by Mason CJ in Bond. The relationship between the text of the sections, even in combination, and the decision that is said to have been made ‘under’ them is, in my opinion, too remote and non-specific for it to be said that provision is made for such a decision by the Income Tax Assessment Act. Approaching the question in accordance with what was said in General Newspapers Pty Ltd v Telstra Corporation, the same conclusion is reached, for the decision was not given statutory effect by the sections relied upon. I agree with the submission of counsel for the respondent that there was no sufficient connection between the Income Tax Assessment Act and Pt X of the Bankruptcy Act such that the possible statutory consequence arising under the Bankruptcy Act once a vote is cast, or not cast, can be treated as having arisen under the Income Tax Assessment Act.

I do not consider that adding s 209 to the combination assists the appellant, for the relationship between the text of the section and the decision said to have been made ‘under’ it is, in my view, even more remote and non-specific than the relationship between s 208 and the decision.”

His Honour concluded that the decision to vote against the proposed composition was not subject to review under the ADJR Act because it was not a decision “under an enactment”, within the meaning of that expression in s 3(1) of that Act.

Spender J expressly agreed with the reasons of the Chief Justice that the decision in question was not one made under an enactment, also observing at 278:

“The fact that a decision is made within power, ie is not ultra vires a particular statute, does not in my opinion necessarily mean that the decision is a decision made under that enactment. There is no identity between decisions made within power and decisions made under an enactment.”

The Chief Justice and Spender J also held, as a second ground for dismissing the appeal, that the decision was not reviewable because it had no operative or determinative effect: not only was it not a decision made “under an enactment”, it is not even a “decision” of the kind with which alone the ADJR Act is concerned. Lockhart J disagreed with the majority, in so far as he held at 276-277, that s 208, when read with s 8, impliedly authorised the Commissioner to do all things reasonably necessary to recover tax due and payable and that the two sections therefore authorised a decision of the kind in question in that case. His Honour was, however, of the same view as the other members of the Court, that the decision was nevertheless not reviewable because there was nothing final or operative or determinative about it: its effect when made was uncertain, and could not be known until all the votes were cast at the creditor’s meeting.

In Australian National University v Lewins (1996) 138 ALR 1, the issue was whether a lecturer, whose application for promotion made in accordance with the Statement on Policy and Procedures on academic promotions published by the University was rejected, was entitled, pursuant to s 13 the ADJR Act, to a statement of reasons for the decision. This depended upon the decision being one to which the ADJR Act applied, ie, to it being a decision made under an enactment. At 14, Lehane J, with whom Kiefel J agreed, rejected a submission that the decision refusing promotion was one made under a section of the Australian National University Act 1991 (Cth) which conferred a range of powers on the University, including power “to employ staff”; his Honour referred to Mason CJ’s statement that a decision is “made” under an Act if it is “a decision which a statute requires or authorises” or “one for which provision is made by or under a statute” and said:

“… a decision meets that test only if it is one for the making of which the relevant statute either expressly or impliedly provides and one to which the statute gives legal force or effect. It is clear, I think, that the general power to employ staff does not satisfy either limb of a test so expressed. That conclusion is required equally, I think, by the recent decision of the Full Court in Hutchins v DCT …”

In our opinion, this Court should apply the majority decision in Hutchins, which has the support of the majority in Lewins. The distinction which the Chief Justice drew in Hutchins between decisions that are authorised only in a general way by an enactment and those which are expressly or impliedly required by an enactment or which are given force or effect to by the enactment, in our opinion, gives proper effect to balancing the two competing policy considerations referred to by Mason CJ in Bond, which must inform the resolution of whether a particular determination is a decision made under an enactment, and so reviewable under the ADJR Act. Mason CJ said, at 336-337:

“The relevant policy considerations are competing. On the one hand, the purposes of the A.D.(J.R.) Act are to allow persons aggrieved by the administrative decision-making processes of government a convenient and effective means of redress and to enhance those processes. On the other hand, in so far as the ambit of the concept of ‘decision’ is extended, there is a greater risk that the efficient administration of government will be impaired. Although Bowen C.J. and Lockhart J. appeared to emphasize the first of these considerations in Australian National University v. Burns, there comes a point when the second must prevail, as their Honours implicitly acknowledged. To interpret ‘decision’ in a way that would involve a departure from the quality of finality would lead to a fragmentation of the process of administrative decision-making and set at risk the efficiency of the administrative process.”

If a general authorisation in a statute for a decision by an organisation set up under that legislation is sufficient to make it a decision under the statute, and thus open to judicial review, every intra vires action of that organisation that has decisional effect and every kind of conduct engaged in by it for the purpose of making a decision will be examinable by the Court. The potential for massive disruption of the organisation’s activities that would be the consequence of such a conclusion is manifest.

The application of the principle in Hutchins to this case requires the conclusion that the decision in question is not a reviewable one: it is only if it can be said to be authorised by the general provisions of s 11(2), either alone or in conjunction with s 19, of the Act that there is any link between the decision and the NCA Act. But that is not sufficient to enable it to be regarded as a decision made under that Act.

The appellant did not rely on s 19 the NCA Act, which confers on the NCA power to do all things necessary to be done for or in connection with, or reasonably incidental to, the performance of its general or special functions. But s 19 cannot assist him. In Hutchins, at 273, the Chief Justice accepted that certain sections of the Income Tax Assessment Act impliedly authorised the Commissioner to do all things that were reasonably necessary to recover tax due, something that included the making of the decision to vote then in question; but he rejected the proposition that this was sufficient to show that that decision was made under an enactment because that source of authority to make the decision was too general to permit such a characterisation of the decision. Spender J, at 279, expressly rejected this proposition, in addition to agreeing with the Chief Justice. It would be rare for any organisation established by statute to perform particular functions not to have this incidental power, either by express enactment or by implication. Every decision of such a body within power, not being a decision required or provided for by the statute expressly or by specific implication, could be said to be required or provided for by such an incidental power. But, as Hutchins shows, mere general authorisation is not sufficient to qualify a decision as one made under an enactment.

The appellant is not entitled to challenge any of the decisions the subject of his amended application in proceedings under the ADJR Act. The appeal
is dismissed with costs.

I certify that this and the preceding 21

pages are a true copy of the reasons

for judgment herein of the Court.

Associate:

Date: 5 June 1997

Counsel for the appellant: Mr M L Abbott QC and
Mr D Agresta

Solicitor for the appellant: Condello & Co

Counsel for the respondents: Ms S J Maharaj and
Mr R J Chrzaszcz

Solicitor for the respondents: Australian Government Solicitor

Date of hearing: 9 May 1997

Top