Case: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321
Outcome: followed
The meaning of 'decision' in s 3(1) was considered at length by Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321. His Honour, with whom Brennan and Deane JJ agreed, observed that 'decision' in the context of s 3(1) indicates that: &#8226; the decision is one required or authorised by statute rather than merely a step taken in the course of reasoning on the way to the making of the ultimate decision (at 336) &#8226; the decision has the character or quality of finality (although qualified by s 3(3)) (at 336) and is not merely an expression of opinion or a statement which can of itself have no effect on a person (at 338) &#8226; 'decision' does not include acts preparatory to making a decision such acts may fall within 'conduct' engaged in for the purpose of making a decision (at 336) &#8226; as a general rule, it is a substantive determination rather than a procedural determination (at 337). 39 For the purpose of an analysis as to the application of s 9A ADJR Act to the decision of the first respondent, I shall assume for the moment that the decision of the first respondent to obtain a search warrant was a 'decision' within the meaning of s 3(1) (although I will consider this issue in more detail later in this judgment). 40 In order for the decision of the first respondent to obtain the search warrant to be a related criminal justice process decision, the decision must have been made in the criminal justice process in relation to the offences for which the applicant has been charged. Section 9A(4)(a) defines a related criminal justice process decision as including 'a decision in connection with the investigation, committal for trial or prosecution of the defendant' (s 9A(4)(a)(i)) and 'a decision in connection with the issue of a warrant, including a search warrant or a seizure warrant' (s 9A(4)(a)(iii)). 41 In his written submissions, Mr Asuzu for the applicant in par 2 stated that the search warrant was obtained 'as a procedural step...in commencing action against the applicant'. The offences with which the applicant has been charged were described in par 1 of Mr Asuzu's written submissions. 65 'Conduct' for the purposes of s 6 ADJR Act is: 'action taken, rather than a decision made, for the purpose of making a reviewable decision. In other words, the concept of conduct looks to the way in which the proceedings have been conducted, the conduct of the proceedings, rather than decisions made along the way with a view to the making of a final determination. Thus, conduct is essentially procedural and not substantive in character.' (Mason CJ in Australian Broadcasting Tribunal v Bond at 341-342) 66 Mason CJ in Bond explained the fundamental difference between 'a decision' and 'conduct' as follows: 'In relation to conduct, the complaint is that the process of decision-making was flawed; in relation to a decision, the complaint is that the actual decision was erroneous. To give an example, the continuation of proceedings in such a way as to involve a denial of natural justice would amount to 'conduct'. That is not to deny that the final determination of the proceedings would constitute a decision reviewable for denial of natural justice.' (at 342) 67 Of the applicant's particularised grounds concerning the second respondent, the only claim which could possibly bear any relationship to 'conduct' which is essentially procedural in nature concerned the alleged insertion by the second respondent of the wrong and incorrect sequence of her registration number on the search warrant. To the extent that this is reviewable conduct (and in my view, that is dubious) this allegation is buried in a substantive claim that the second respondent 'perverted the course of justice' presumably in respect of the manner in which she issued the search warrant. Other than this possible issue, the claim of the applicant concerning the second respondent concerns her decision to issue the search warrant, not procedural issues relevant to the decision. 74 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)