Case: Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50
Outcome: applied
In that context of the applicants' discussion of general principles and their operation, I was then referred to the decision of a Full Federal Court in Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health (1995) 56 FCR 50, where it was held by Lockhart and Beaumont JJ that a decision by the Secretary not to direct that clinical trials of a drug be stopped was a reviewable decision for the purposes of the ADJR Act. The provision in issue was item 3(e) of Schedule 5A of the Therapeutic Goods Regulations 1990 (Cth), that item being one of a number of conditions to be satisfied for exemption of the drug from the operation of Part 3 of the Therapeutic Goods Act 1989 (Cth), which condition read as follows: '(e) the Secretary must not, at any time: (i) have become aware that to conduct or continue the trial would be contrary to the public interest; and (ii) have directed that the trial not be conducted, or be stopped ...'. The appellant Association had requested the Secretary to stop the trials on the ground that they amounted to a breach of NSW and Victorian criminal law, and were thus ' contrary to the public interest '. The Secretary had then notified the appellant Association and advised that on the evidence available, 'nothing would warrant my acting to stop the trials'. At 62, Lockhart J observed in relation to that notification as follows: 'If the Secretary has reached the opposite conclusion, namely, that to continue the trials would be contrary to the public interest and that a direction should be given to stop them, and thereupon gave that direction, surely that must be a reviewable decision under the ADJR Act. The sponsor [of the trial] would clearly be a person aggrieved and would in my view be entitled to such a review of the decision under the ADJR Act. Why should the position be different if the Secretary reaches the opposite conclusion, as he did in this case ... It was a decision which had "the character or quality of finality"; it was an ultimate or operative decision ...' Beaumont J, who reached the same decision as Lockhart J, pointed out at 80 that '... the definition of "decision" in s 3(1) of the ADJR Act is not confined to those cases where a duty to make a decision is imposed ...'. Although he reached a different outcome to the majority, Gummow J's observations at 88 are I think also apposite for consideration in the present circumstances: 'It was submitted for the Secretary that s 5(1) of the ADJR Act would be attracted only if conferral of the power to give the direction carried with it a duty upon the Secretary. It was then submitted that in the case of condition (e) there was no such duty ... The submission, in essence, would limit the operation of s 5 of the ADJR Act to decisions in respect of which there was a public duty, performance of which might be required by a writ of mandamus ... This would be contrary to the scheme of the legislation ...' 31 The Authority sought to deny any conclusion as to the existence of a justiciable decision by characterising its first decision as declining to even consider the exercise of any discretion under s 111 of the Act. In the applicants' submission that purported characterisation was misconceived, and must be rejected, for the following reasons: (i) the decision not to exercise its power under s 111 to vary a condition of the licence was indeed final, operative and determinative, in the practical sense described in Bond and in Right to Life [cedilla] of AusCoast's ability to continue to broadcast under the auspices of the 1620 licence from the current site at Tingalpa; (ii) any such characterisation sits at least uncomfortably with the terms of the Authority's letter of 30 June 2005, containing as it does the assertion '[a]s a result the [Authority] will not exercise its discretionary power under section 111 of the [Act] and vary licence conditions in the terms proposed by [WAL]'; (iii) the decision not to exercise the power was one which was authorised by and therefore made under s 111 of the Act, since s 111 confers a discretionary power, and hence contemplates that a decision whether or not to exercise that discretion could be made, there being no other source of power for such a decision. I think that there is force in each of the foregoing submissions of the applicants. 32 The Authority did not dispute that a refusal to exercise a power may constitute a decision...made...under an enactment , for the purposes of the ADJR Act. Nevertheless it sought to distinguish Right to Life on the basis that in the circumstances of that case, as opposed to the present case, the decision-maker had purported to consider 'the full gamut...of all the relevant issues'. The Authority's contention was that its officer in this instance had in effect 'terminated the request [made by WAL for a variation in the site condition of the 1620 licence] at the first hurdle', without considering all of the issues that the Authority would normally take into account in assessing a variation. I am not persuaded that such contention of the Authority is sound, and that there is in any event any viable difference between the circumstances relevantly in Right to Life and those here prevailing. In both instances the decision-maker received a request for a decision to be made to a certain effect, and in both instances there was no provision made under the relevant legislation for such requests to be made by formal application. Moreover in both cases, detailed reasons for that request were given by the entity in favour of the decision it sought to be made. Most importantly for the outcome of this objection to competency, it was put by the applicants that the refusal of the Authority to make a decision in the terms requested by WAL had the practical effect of constituting an ultimate or operative decision, and hence one which bore the character of finality. 33 It becomes necessary to consider next the implications of the Authority's so-called 'second decision', being that said by the applicants to have been made on 18 August 2005 not to reconsider its first decision of 30 June 2005, to the effect that it would not exercise its discretionary statutory power to alter the condition on the 1620 licence so as to change the site of the licence. The Authority's objection to the Court's competency to review the second decision rested however on its objection to competency of review of the first decision, and was therefore said by the applicants to encounter the same or similar difficulties which I have already described in relation to the first decision. The applicants contended that '[t]he plain words of para 285(g) [of the Act] also tell against the [Authority]'. 34 The opening words to s 285, which I have of course already extracted, but nevertheless merit further emphasis, are that ' [a]n application may be made to [the Authority] for reconsideration of any of the following decisions ', the notion of reconsideration being of wide import. Moreover the ensuing language of sub-paragraph (g) includes the word concerning , which was also said by the applicants to be of wide import, such that there could be no contextual reason to construe s 285(g) narrowly. Hence the applicants contended on that basis that the Authority's decision not to vary the site condition at the centre of the disputation was clearly a decision concerning the conditions of the 1620 licence, that licence being of course an apparatus licence . 43 Again I am unable to obtain sufficient assistance from resort to authorities involving the application and operation of the Migration Act , which in the case of Bedlington explicitly stipulated that ' the Minister does not have a duty to consider whether to exercise the [power] ... in any ... circumstances '. The Full Court emphasised at 78 of its reasons for judgment that the particular language of subsection 48B(6) was the sole basis for their decision that the Minister was under no duty in any circumstances to exercise the relevant power under s 48B(1). The critical issue arising was whether the Departmental Secretary was under a duty to bring the application made for the exercise of the power under s 48B(1) to the Minister's attention in order that the Minister could personally determine whether or not to exercise that power. Their Honours held that the use of policy guidelines by the Secretary as the basis for refusing to bring the application to the Minister's attention, where such guidelines were specifically intended to identify those cases in which the Minister might consider the exercise of his or her power was valid. I have considerable difficulty in discerning the availability of assistance from that further authority, given that it relevantly involved a power that the provision required be exercised personally by the Minister, and concerned only the proposition that the Minister had no statutory obligation to make a decision, and again did not occur in an ADJR Act context. Moreover there is no express provision in the Act (ie the legislation the subject of the present proceedings) to the effect that the Authority need not make any relevant decision. All that discourse put forward by the Authority here in relation to migration cases, in any event, ultimately still begs the question as to whether a decision not to make a decision in a particular context nevertheless constitutes a decision ... made... under an enactment within s 5 of the ADJR Act. Taken to their logical conclusion, the Authority's submissions appear moreover to run contrary to the warning issued by Gummow J in Right to Life , which I have extracted above, to the effect that limiting the scope of the ADJR Act to decisions in respect of which there was a duty, performance of which might be required by a writ of mandamus would be contrary to the scheme of the ADJR Act. In that latter regard, I would refer again to the text of s 3(2) of the ADJR Act earlier extracted. 45 It is important to bear in mind, in any event, that the applicants have applied for review of the Authority's decision here under s 5(1) of the ADJR Act, and not under s 7 thereof, so that the only question with which I am presently concerned is whether or not the subject decision fulfilled the requirements of s 3(1) of the ADJR Act. In that context I would observe what Lockhart J said at 62 of his reasons for judgment in Right to Life concerning Brownsville Nominees : 'We were referred by counsel for the Secretary to the judgment of Northrop J in [ Brownsville Nominees ] as authority for the proposition that there was no "decision" within the meaning of s 5 of the ADJR Act because there was no duty imposed on the Secretary to make such a decision. Brownsville is not authority for that proposition...His Honour's decision was based squarely upon the duties imposed upon the Commissioner under the Assessment Act.' In similarly rejecting the application of Brownsville Nominees in the manner sought by the Secretary, Beaumont J concluded at 80 of his reasons for judgment that: 'I have difficulty accepting the submission. In the first place, as has been noted, the definition of "decision" in s 3(1) of the ADJR Act is not confined to those cases where a duty to make a decision is imposed, although such decisions are also picked up...'. Moreover at 88 of his reasons for judgment, Gummow J expressed his agreement with: '...what [was] said in the reasons for judgment of the other members of the Court as to the inadequacy of [ Brownsville Nominees ] as authority for the proposition that in the present case there could be no decision attracting the ADJR Act unless the Secretary was under a duty to act.' I need add nothing further as to the absence of any assistance of Brownsville to the Authority. 60 Moreover by way of reflection of dicta I have cited from Right to Life , and in particular from that of Lockhart J at 62, I would characterise the Authority's conduct culminating in its faxed response of 30 June 2005 as similarly indicative of a conclusion having been reached by the Authority in or to the effect of the first decision postulated in the applicants' amended application filed in Court on 25 August 2005. The Authority made thereby a decision under s 111 not to effect a variation to one of the conditions it had imposed on the 1620 licence pursuant to s 107(1)(g) of the Act, namely the condition stipulating the transmission site. The Authority's communication of 30 June 2005 constituted or involved moreover the very opposite or antithesis of the decision which the applicants had been seeking from the Authority, commencing from WAL's application of 6 August 2004 made to the Authority, being a decision the implications and consequences whereof clearly and in substance affected rights and obligations of the applicants concerning the 1620 licence.