Case: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321
Outcome: referred to
The meaning and implications of the statutory notion of 'decision', where used in the ADJR Act, was comprehensively explained by the High Court in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321. It was emphasised by Mason CJ at 335 (with whose reasons Brennan J agreed, as did Deane J other than in relation to a particular matter not here material) that such meaning must be determined by reference to the text, scope and purpose of the legislation, and further that the remedial nature of the ADJR Act indicates that no narrow view is to be taken of the notion of 'decision' in that statutory context. Moreover his Honour pointed out at 336 that the concept of 'a reviewable decision is a decision which a statute requires or authorises, rather than merely a step taken in the course of reasoning on the way to the making of the ultimate decision', and further that 'the examples of a decision listed in the extended definition contained in s 3(2) [of the ADJR Act] are also indicative of a decision having the character or quality of finality, [being] an outcome reflecting something in the nature of a determination of an application, inquiry or dispute ...'. Section 3(3) of the ADJR Act, which extends the statutory definition of 'decision' to '... the making of a report or recommendation before a decision is made in the exercise of a power ', was said by his Honour to operate to '... qualif[y] the characteristic of finality'. Moreover the Chief Justice explained that '... acts done preparatory to the making of a "decision" are not to be regarded as constituting "decisions" for, if they were, there would be little, if any, point in providing for judicial review of "conduct" as well as of a "decision".' 28 In the further course of his reasons for judgment in Bond at 337, Mason CJ pointed out that '... a reviewable "decision" is one for which provision is made by or under a statute', which '... 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', so long of course '... that it be a substantive determination', as opposed to 'procedural determinations'. 29 The applicants focused those explanations and expositions of the Chief Justice upon s 111 of the Act, which refers to power conferred upon the Authority inter alia to revoke or vary any condition of a licence which it may have previously imposed, and submitted that so much did not mean that a refusal to exercise any such positive power on the part of the Authority did not constitute a decision made under s 111. It was pointed out in that regard, in my opinion rightly, that there are many statutes in which the decision-making power is expressed only in terms of a positive discretion, without express reference to the power to make a decision of a negative character, yet in such cases it is necessarily implicit that a negative decision would also be made under that provision. Otherwise, so it was further emphasised by the present applicants, paras (a), (b) and (g) of s 3(2) of the ADJR Act would be otiose. Those subsections read as follows (the emphasis appearing in non-italics is mine): 's 3(2) In this Act, a reference to the making of a decision includes a reference to: (a) making, suspending, revoking or refusing to make an order, award or determination; (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission; ... (g) doing or refusing to do any other act or thing...' 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. 48 Ryan J found that the Minister there had not received advice from a local Aboriginal community in accordance with s 21D(1), and thus the issue of relevance was whether or not the Minister's decision not to determine[e] on his...own motion that a temporary declaration of preservation should be made was a reviewable decision for the purposes of s 5(1) of the ADJR Act. The Minister had informed the applicants in writing that he would 'consider' their request for a determination on his own motion, but later told the applicants that he would not do so pending the resolution of another proceeding before this Court involving the same artefacts. His Honour found that the Minister's decision was a decision to decline to determine[e]...on his own motion and was thus made 'preparatory' to the making of a decision to determine to make a temporary declaration. Alternatively, his Honour characterised the decision declining to so determine[e] as 'a conclusion reached as a step on the way to an ultimate decision', which is not reviewable, for that reason also, thereby referring to dicta to like effect at 337 of Mason CJ's reasons for judgment in Bond . 59 Thus by way of reflection of the dictum I have cited from Bond , the communications of the Authority as evidenced from the outset by its faxed response of 16 August 2004 to the applicants' application of 6 August 2004 and thereafter, inclusive of its critical communication to WAL of 30 June 1995, the Authority indicated to the applicants the position which it had adopted or taken as inherently and essentially indicative of decision-making on its part, the same having for instance the 'character or quality of finality', and constituting and involving 'an outcome reflecting something in the nature of a determination of an application' within the scope of that dictum of Mason CJ in Bond I have earlier cited. That communication of the Authority constituted or involved a decision 'at least in a practical sense, of the issue of fact falling for consideration'. It was 'a substantive determination' as opposed to a 'procedural determination', to adopt the Chief Justice's further dictum in Bond .