Case: Griffith University v Tang [2005] HCA 7 ; (2005) 221 CLR 99
Outcome: considered
As I said earlier in this judgment, a 'decision' under the ADJR Act requires an element of finality, rather than acts preparatory to the making of a decision (Mason CJ in Bond at 336). Further, the meaning of a decision made 'under an enactment' was explained by Gummow, Callinan and Heydon JJ in Griffith University v Tang [2005] HCA 7 ; (2005) 221 CLR 99 as follows: 'The determination of whether a decision is "made... under an enactment" involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be "made... under an enactment" if both these criteria are met.' (at 130) 75 Mr Porter for the first respondent submitted that a decision to obtain a warrant is not a 'decision under an enactment' for the purposes of the ADJRA because it does not satisfy the second requirement in Griffith University . That is, the decision does not itself confer, alter or otherwise affect legal rights or obligations hence the decision of the first respondent is not reviewable under the ADJR Act. 76 Unfortunately the Court has not had the benefit of submissions from the applicant in respect of this issue. In my view it is arguable as a general proposition that a decision to obtain a search warrant is a reviewable decision under the ADJR Act (or the Judiciary Act ). However in my opinion the point is moot because: &#8226; if the decision is not reviewable under either Act (although I note that the applicant has not claimed that the Judiciary Act is relevant in this case) the applicant has no case &#8226; even if the decision were reviewable under either the ADJR Act (or the Judiciary Act ), the application to review this decision of the first respondent is rendered fatal by the application of s 9A ADJR Act (and s 39B(1C) and (1D) Judiciary Act which is in similar terms in the context of that Act to s 9A ADJR Act). 77 Accordingly, to that extent it is unnecessary for me decide whether the decision is a reviewable decision or not. 78 The first respondent has objected to the competency of the application in so far as it concerns the second respondent on the basis that the Application for an Order of Review was made out of time. Section 11(1) ADJR Act requires that an application to the court for an order of review shall be lodged with the court during the period prescribed by s 11(3). Mr Porter for the first respondent submitted: &#8226; although the application was with respect to the conduct of the second respondent, it was with respect to conduct for the purpose of making a decision to issue a warrant &#8226; 'decision' includes conduct for the purpose of making a decision &#8226; section 11(3)(b)(iii) applies to this decision, being a decision for which no reasons were sought or provided by the second respondent &#8226; section 11(3)(b)(iii) provides that an application for an order of review must be brought within 28 days of the 'day on which a document setting out the terms of the decision is furnished to the applicant' &#8226; the document setting out the terms of the decision is the warrant itself which was provided to the applicant on 22 September 2004 &#8226; within the terms of s 11, the time to make an application in relation to that decision expired on 20 October 2004 &#8226; the application in this case was brought on 24 August 2006, some 22 months out of time &#8226; accordingly, the applicant requires leave to bring the application, but has not sought leave &#8226; the first and second respondent oppose the grant of leave to the applicant to bring the application. 79 In my view, these submissions accurately summarise the position with respect to this application. 80 The applicant did not dispute that leave was necessary to hear his application, and at the hearing Mr Asuzu made an application for an extension of time for the application to be heard. At both the hearing and in his written submissions Mr Asuzu stated that the applicant had spent 16 days in prison.