Case: Bedlington v Chong (1998) 87 FCR 75
Outcome: distinguished
It was the Authority's further contention that its officers paid due regard to policy formulated by the Authority concerning the location of MF NAS transmitters, and took the view, as they were said by the Authority to be entitled to do, that the proposed relocation advanced by the applicants did not meet the policy requirements apparent in the so-called '30/160 rule', or the 'make it a better rule' apparent in the NAS PIP policy, and that as a consequence, it was decided by the Authority that the applicants' proposal should not be further entertained. The circumstances of the present case were said by the Authority in that context to be 'broadly analogous' to those considered in a joint judgment of a Full Federal Court (comprising Black CJ, Kiefel and Emmett JJ) in Bedlington v Chong (1998) 87 FCR 75, which was concerned with the operation of ss 48A and 48B of the Migration Act . The Authority relied upon Bedlington for the proposition that it is open to a decision-maker, who is under no duty to consider exercising a discretionary power, to draft a policy which identifies the types of cases in which the exercise of that discretion might be exercised. 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. 61 It follows in my opinion that the Authority's objection to competency must fail, at least for the reason that such objection is founded on the erroneous proposition that no decision has been relevantly made under an enactment, pursuant to s 3(1) of the ADJR Act. Whilst that conclusion renders unnecessary any conclusion to be reached as to whether a matter relevantly arose under any law made by the Parliament for the purpose of the operation of s 39B(1A) of the Judiciary Act , I am unable to identify any viable basis in favour of a negative response to that latter proposition of the applicants as well. It is moreover not accurate for the Authority to contend that its refusal was a decision made pursuant to a policy as opposed to an enactment, any resemblance here to the factual situation prevailing in Bedlington being merely chimerical, for the reasons that I have indicated above. 62 It follows from my foregoing conclusions that the Authority's refusal to vary the 1620 licence site condition involves a matter arising under a law made by Parliament of the Commonwealth, the legislative authority to make that decision being conferred by s 111 of the Act. Accordingly I would further find that the purported ground of objection pleaded by the Authority in the alternative, namely that '... there is no proper basis upon which to grant relief to the applicant', must also fail, owing to the availability at least of declaratory relief to the applicants for the reasons I have earlier explained. 63 Accordingly the application for review of the first decision sought by the applicants' amended application filed in Court on 25 August 2005 must proceed to a final hearing. 64 It follows moreover, in the light of all of my foregoing findings, that the further applications to review the Authority's decision of 18 August 2005 not to reconsider its prior principal decision of 30 June 2005, and also the Authority's yet further decision made at the same time to refuse WAL's request for a statement of reasons in respect of the first decision, must also proceed to a final hearing, the first decision not being one excluded from the operation of s 13 of the ADJR Act. 65 I should add for completeness that the further concluding contention raised by the Authority in any event to the effect that since AusCoast presently broadcasts from premises at Tingalpa which are not the premises specified in the conditions of the 1620 licence, being conduct asserted by the Authority to be 'unlawful and improper', the Court should as a matter of discretion refuse that relief. That subject must be a question for another day, and is irrelevant to the issue of competency per se for the reasons I have already indicated. Doubtless on that further occasion, the applicants would seek to pursue in more detail the circumstances and implications of the conduct of the Authority relating to the variation of the site condition on the 1611 licence to the Bracken Ridge Reservoir transmission site, being a conceivable issue apparently to be raised by the applicants from which I would necessarily withhold from further comment at this interlocutory stage of the proceedings. Whether that subject is in any event a matter for legitimate consideration in the context of the administrative relief sought by the applicants would be a matter for submission at that further hearing.