Case: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212
Outcome: referred to
Whether the Commission used $360,000 as Telstra's costs or not, it gave no reasons for its finding that Telstra's costs would be negligible. The Commission either made a mistake about what Optus submitted or it had no reasons for rejecting Telstra's estimate of $1.7 million. Optus' submission that the Commission had not used the $360,000 as Telstra's costs recognised at least implicitly, that such a use would be a failure by the Commission to have regard to Telstra's direct costs under s 152CR(1)(d). While I think that it is likely that the Commission was confused about Optus' estimate of $360,000 as being an estimate of Telstra's costs, it is not possible to decide one way or the other whether it did because of the Commission's lack of reasons on this matter: Palme 216 CLR at 223-224 [39] per Gleeson CJ, Gummow and Heydon JJ. 126 I am of opinion that the deficiencies in the Commission's reasons which I have just discussed show that it had no reasons for rejecting Telstra's estimate of $1.7 million and that it did not comply with the requirement of s 152CR(1)(d). 127 Telstra argued that the Commission's approach to Code 569 was reviewable under s 5 of the ADJR Act . It contended that the Commission had: &#8226; failed to observe the procedures required by s 152AQB(9) (s 5(1)(b) of the ADJR Act ); &#8226; improperly exercised its power in making the final determination because it had failed to take into account a relevant consideration (s 5(1)(e) and (2)(b) of the ADJR Act ). 178 In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59 at 76 [73] McHugh and Gummow JJ said that one species of what is known as Wednesbury unreasonableness ( Wednesbury [1948] 1 KB at 230) was identified by Dixon CJ in Klein v Domus Pty Ltd [1963] HCA 54 ; (1963) 109 CLR 467 at 473. There, Dixon CJ said that if it appeared that the dominating or actuating reason for a decision was outside the scope of the purpose of the enactment, that vitiated the supposed exercise of a discretion. Dixon CJ said that the Court looks to the scope and purpose of a provision and what its real object is to determine whether a decision-maker has exercised a discretion in accordance with the purpose of the enactment. However, the Court must approach the exercise from the perspective that the real object of the legislature is to leave the scope for judicial or other officer who is investigating the facts and considering the purpose of the enactment to give effect to his or her view of the justice of the case: see too S20/2002 198 ALR at 75-76 [67]-[70]; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212 at 221 [30] per Gleeson CJ, Gummow and Heydon JJ. A decision which is so unreasonable that it might almost be described as being done in bad faith or so absurd that no sensible person could dream that it lay within the powers of the decision-maker is affected by jurisdictional error: Palme 216 CLR at 221 [30]. 182 In Palme 216 CLR at 223-224 [39], Gleeson CJ, Gummow and Heydon JJ referred to this principle. They distinguished it from a situation where a decision-maker did not give any reason for his or her decision, when the Court may be able to infer that he had no good reason (cf: per Gibbs CJ in Public Service Board (NSW) v Osmond [1986] HCA 7 ; (1986) 159 CLR 656 at 663-664).