Case: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321
Outcome: considered
I do not think the orders made by the Tribunal which are under challenge constitute a decision under s 44(1) of the AAT Act. The substantive application before the Tribunal was an application for review of the delegate's decision under s 13 of the Act not to grant a certificate of Australian citizenship to the respondent. The right to bring the application for review is contained in s 52A of the Act. The orders of the Tribunal defer or adjourn consideration of the application for review. The orders do not amount to a final decision or determination. In accordance with well-established authority the orders therefore do not constitute a decision within s 44(1) of the AAT Act: Director-General of Social Services v Chaney (1980) 3 ALD 161 per Deane J, with whom Fisher J agreed, at 178, 180; Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 (' Bond ') per Mason CJ at 335; Geographical Indications Committee v The Honourable Justice O'Connor (2000) 64 ALD 325 at 332-333. In my opinion, there is no right of appeal from the Tribunal's orders under s 44(1) of the AAT Act. 30 I do not think the orders made by the Tribunal constitute a decision under s 5 of the ADJR Act. The meaning of 'decision' in s 5 of the ADJR Act was considered by Mason CJ in Bond . His Honour said that a reviewable decision under s 5 of the ADJR Act had a number of characteristics, including the fact that it must be a substantive determination. His Honour said (at 337-338): 'Another essential quality of a reviewable decision is that it be a substantive determination. With the exception of s 3(2)(g), the instances of decision mentioned in s 3(2) are all substantive in character. Moreover, the provisions in sub-ss (1), (2), (3) and (5) of s 3 point to a substantive determination. In this context the reference in s 3(2)(g) to "doing or refusing to do any other act or thing " (emphasis added) should be read as referring to the exercise or refusal to exercise a substantive power. I do not perceive in s 16(1)(b) or in par (e) of Sched 1 or par (a) of Sched 2 to the AD(JR) Act any contrary implication. These exclusions from the AD(JR) Act or from s 13 appear to have been introduced for more abundant caution and it would be unwise to take too much from them. If "decision" were to embrace procedural determinations, then there would be little scope for review of "conduct", a concept which appears to be essentially procedural in character. To take an example, the refusal by a decision-maker of an application for an adjournment in the course of an administrative hearing would not constitute a reviewable decision, being a procedural matter not resolving a substantive issue and lacking the quality of finality. Then it is the "conduct" of the hearing in refusing an adjournment that is the subject of review. To treat the refusal of the adjournment in this way is more consistent with the concept of "conduct" than with the notion of "decision under an enactment".' 31 The applicant submitted that the order deferring or adjourning the application for review was conduct for the purpose of making a decision. It seems to me that that is probably the case, but the question which then arises is whether any of the grounds in s 6 of the ADJR Act are relevant to the grounds upon which the applicant challenges the orders. A number of the grounds, although not all of them, relate to the proposed decision which in this case is the decision to be made on the application for review either to affirm the decision of the delegate or to grant a certificate of Australian citizenship to the applicant. If necessary, I will give the parties the opportunity to make further submissions with respect to this issue. 32 It may not be necessary for the parties to make further submissions because I have also reached the conclusion that this is an appropriate case for relief under s 39B of the Judiciary Act 1903 (Cth). The respondent did not argue that relief under s 39B was not, in theory, available. He submitted that it was not available in this case because there was no jurisdictional error by the Tribunal. For the reasons set out below I reject that submission and hold that the Tribunal erred in a manner going to its jurisdiction. The respondent submitted that the Court would rarely exercise its discretion to issue constitutional writs in relation to a decision by the Tribunal to defer or adjourn an application for review. I agree with that as a general statement, but I think that this is an appropriate case. The Tribunal has erred in concluding that it could exercise the power in s 14A of the Act and it has erred in its consideration of its general power to adjourn in light of the provisions of the Act and, in particular, s 13(11)(a). 33 As I have said, before me both parties submitted that the power to defer in s 14A(1) was a power available to the Tribunal. The section in the AAT Act which confers various powers and discretions of the primary decision-maker on the Tribunal is s 43. It seems appropriate to interpret s 43(1) broadly and proceed on the basis that for the purpose of the subsection the Tribunal would be exercising the power to defer 'for the purpose of reviewing [the] application'. The power to defer is a power available to the Tribunal. It is a power which is subject to a limitation and any exercise of the power by the Tribunal is subject to the same limitation. What is the meaning of the limitation? First, I think the twelve-month period commences from the time the decision to defer is taken. With respect, I reject the view of the Tribunal member that it commences when the offence which is the subject of the charge was allegedly committed. There is no warrant in the section for identifying that as the commencement point. Secondly, I think that it is only possible to defer for a maximum period of twelve months and it is not possible to defer for twelve months on the basis of one charge or set of charges and then later for a further period of up to twelve months on the basis of a second and later charge or set of charges. The terms of the section are such that a deferral or deferrals of consideration of the application for review for longer than twelve months is not permitted. In my opinion, the words of the section are such that if the power to defer is exercised, consideration of the application for review must at least commence within a period of twelve months thereafter. 34 The Tribunal's general power to adjourn is not excluded by the fact that the power to defer is a power available to the Tribunal. The Tribunal is not bound to exercise the power to defer in s 14A. In any event, there is a clear difference between a statutory power to defer an application for review and a power to adjourn an application for review and there may be many reasons for adjourning an application which are unrelated to the matters referred to in s 14(1)(b) of the Act. The Tribunal might adjourn because of the unavailability of a party or witness or for any of the reasons that routinely lead to adjournments of a proceeding before a court or tribunal. 35 However, the general power to adjourn is affected by the provisions of the Act. First, if an application is made to adjourn or defer an application for review on the ground that a charge is pending, it would be appropriate that the decision-maker proceed under s 14A rather than the general power to adjourn in s 40(1). Secondly, and in any event, I doubt that there would be grounds to adjourn because of a pending charge. I say that because the alternative to the granting of an adjournment would not be that the applicant for review would be required to compromise his or her right to silence before the hearing of the criminal charge. The effect of s 13(11)(a) of the Act is quite clear. The decision-maker must not grant a certificate of Australian citizenship to a person while proceedings for a relevant offence are pending in relation to that person. It is not clear what the Tribunal member meant when he said that s 13(11)(a) operated as a prohibition on the exercise of jurisdiction by the Tribunal on review. Certainly the Tribunal could not grant a certificate of Australian citizenship, but it could list the matter for hearing and find that the facts fall within s 13(11)(a) and that it cannot or should not exercise the power in s 14A and, having reached those conclusions, dismiss the application for review and affirm the decision of the delegate. I turn now to apply these principles to the facts of this case. 36 The Tribunal member erred in concluding that the power in s 14A could, in the circumstances, be exercised by him. It is not entirely clear from the direction (see [12] above) what power the Tribunal member considered he was exercising on 8 September 2004 when he directed that the matter not be listed for hearing until after the resolution of the criminal charges. I think it is appropriate to view it as an exercise of the power to defer in s 14A because, for the reasons I have given, it would not have been a proper exercise of the discretion to adjourn the application on the ground referred to in the direction. What that means is that the power in s 14A was spent because consideration of the application did not at least commence within twelve months of 8 September 2004. 37 The exercise by the Tribunal of its general power to adjourn miscarried because it was not entitled to take into account the pending charge in considering whether to adjourn and, in any event, the Tribunal member misunderstood what would occur if the application was not adjourned. If not adjourned, then the application should have been listed and if the facts fell within s 13(11)(a) it should have been dismissed and the delegate's decision affirmed. 38 The applicant is entitled to relief, but I will give the parties leave to make further submissions as to the appropriate relief in light of these reasons. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 27 March 2007 Counsel for the Applicant: Ms S Maharaj QC with Mr R Prince Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr W J N Wells QC with Dr C D Bleby Solicitor for the Respondent: Patsouris and Associates Date of Hearing: 3 October 2006 Date of Judgment: 27 March 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/436.html