Case: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355
Outcome: cited
Section 5(1)(b) of the ADJR Act provides that a decision may be reviewed on the ground that " procedures that were required by law to be observed in connection with the making of the decision were not observed" . This ground of review has been described as 'procedural ultra vires'. It is concerned with determining the validity of an act done in breach of a statutory provision. Any distinction between directory and mandatory requirements is not relevant: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 390-391. The acts to which this ground of review is directed are usually requirements laid down by an Act to reach a decision within a certain period of time or after a period of consultation. 51 The applicant has not identified a procedure prescribed by the HREOC Act which HREOC has not observed. Instead, under this heading, the applicant asserts that HREOC failed to perform its functions under ss 11(1)(f) and 20(1) of the HREOC Act in that it failed to give proper consideration to the evidence before it. In support of that contention, the applicant referred to what he described as 10 matters of "key evidence" that the President of HREOC had failed to consider. The matters were said by the applicant to be: (1) the plant was non addictive; (2) the plant was non toxic; (3) there were no health warnings in relation to the plant; (4) the lack of experience and expertise in the Department; (5) the Department breached s 52E(1)(b) of the TGA in that the Department failed to take into account " the risks and benefits associated with the use of a substance "; (6) the Department placed the plant into Schedule 9 for reasons other than public health and safety (7) possible bias in HREOC's decision making process. At the hearing, the applicant disavowed any suggestion that HREOC was biased; (8) the NDPSC was motivated by improper purposes including " religio-political factors" ; (9) evidence of "behind the scenes" discussions. Three examples were provided. First, an internal review document provided by the TGA in which a Dr P Chipman stated that " Customs might have expressed concern to the TGA by way of telephone calls and it is possible that telephone discussions between the two agencies may not have been filed" . The second example provided as evidence of possible collusion or interference in the decision making process was the " surprisingly prompt knowledge by the NDPSC ... of US Congressional Bill HR 5607 at the 15-17 October, 2002 meeting of the NDPSC, which Bill had only been introduced into Congress on the 10 th October 2002" . The third example was an assertion by the applicant that he " was advised by a US journalist that information pertaining to Australia's prohibition of [the plant] may have been leaked to the US Drug Enforcement Agency" and " [t]his may have occurred just prior to the unsuccessful US Bill HR 5607 which sought to prohibit [the plant] in that country" ; (10) the concern expressed in the Australian Parliament by Lindsay Tanner that the TGA was unable to identify an authorative scientific source for the plant when considering whether it should be included in Sch 9 and the fact that this was not referred to by HREOC in its decision. 52 The applicant's contention that HREOC failed to perform its functions under ss 11(1)(f) and 20(1) of the HREOC Act in that it failed to give proper consideration to the matters listed in the preceding paragraph establishes no basis for review under this heading. Neither the general allegation nor any of the specific matters identified by the applicant concerns a procedure prescribed by the HREOC Act which HREOC has not observed. That is reason enough to conclude that the asserted ground is not made out.