Case: Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321
Outcome: applied
A "decision" to which the ADJR Act applies is, subject to exceptions that are not presently relevant, a decision of an administrative character made, proposed to be made, or required to be made, under an enactment or by a Commonwealth authority or an officer of the Commonwealth under an enactment (s 3(1) of the ADJR Act). A "decision" 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' ( Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 337 per Mason CJ, with whom Brennan and Deane JJ agreed). It will also involve a substantive determination. ' If "decision" were to embrace procedural determinations, then there would be little scope for review of "conduct" ' as expressly contemplated by s 6 of the ADJR Act ( Bond at 337). 56 As Mason CJ observed in Bond , a reviewable decision for the purposes of s 5 of the ADJR Act is ' a decision which the statute requires or authorizes rather than merely a step taken in the course of reasoning on the way to the making of the ultimate decision ' (at 336). It is the case that s 151AKA(10) of the Act requires a notice under that section to be given prior to the issue of a Part A competition notice pursuant to s 151AKA(2). However, the satisfaction of that statutory prerequisite involves no "decision" of an administrative character. In order to comply with s 151AKA(10) the Commission must, as I have noted, give a notice stating that the Commission proposes to issue a Part A competition notice (s 151AKA(10)(a)(i)), describing in summary form the kind of anti-competitive conduct proposed there to be specified (s 151AKA(10)(a)(ii)) and inviting the carrier to make a submission within the specified time limit (s 151AKA(10)(a)(iii)). The Commission must then consider any submission received within time (s 151AKA(10)(b)). The discharge of those statutory obligations involves no determination of a substantive nature. The issue of a s 151AKA(10) notice is an action taken prior to the ultimate decision to issue a Part A competition notice upon satisfaction of the "reason to believe" threshold. That action is procedural in character and involves no "decision" within the meaning of s 5 of the ADJR Act. 57 It follows that, there being no relevant "decision", it is unnecessary to consider whether an extension of time should be granted under the ADJR Act to review the "decision" to issue the Consultation Notice. 58 That leaves for consideration whether the Commission's conduct in issuing the Consultation Notice is reviewable "conduct" within s 6 of the ADJR Act. No specific time limit applies to the review of conduct. "Conduct" engaged in for the purpose of making a decision includes ' the doing of any act or thing preparatory to the making of the decision ', including the taking of evidence or the holding of an inquiry or investigation (s 3(5) of the ADJR Act). It ' points to action taken, rather than a decision made, for the purpose of making a reviewable decision '. Conduct is ' essentially procedural and not substantive in character ' ( Bond at 341 2). 59 The issue of the Consultation Notice was more than merely a preparatory step in the deliberative or reasoning process of the reviewable decision to issue the Competition Notice ( Bond at 342). The issue of the Consultation Notice was "conduct" of the Commission within the meaning of s 6 of the ADJR Act and therefore reviewable pursuant to s 6 of the ADJR Act. It is also, in my view, amenable to review pursuant to s 39B(1A)(c) of the Judiciary Act . 60 The parties accept that s 39B of the Judiciary Act applies to the decision to issue the Competition Notice. Section 151AQA of the Act contemplates an application to the Court under s 39B(1) in relation to that decision and prevents the Court from staying the process to issue the notice pending the finalisation of the application. 61 The Commission submits that the statutory scheme does not contemplate there being a reviewable decision or conduct in connection with the issue of a s 151AKA(10) notice. It relies on two matters in so doing. First, there is no specific provision for such review. Secondly, a review at that stage of the process would, the Commission submits, be contrary to the requirement for the Commission to proceed expeditiously once it has "reason to suspect" that there has been a contravention of the competition rule. The Commission points out that it would be unable to complete the process of forming a "reason to believe" under s 151AKA(8) if persons were able to invoke s 39B of the Judiciary Act before the Commission had received and considered the written submissions as contemplated by s 151AKA(10). 62 There are a number of reasons why the Commission's submissions should not be accepted. There is no clear language excluding the right to invoke s 39B of the Judiciary Act . Importantly, s 39B(1A)(c) confers jurisdiction on the Court in any matter arising under any laws made by the Parliament other than an exception which does not apply here. The decision to issue the Consultation Notice is a matter arising by reason of Pt XIB of the Act. It is within jurisdiction whether it be considered a "decision" or "conduct" for the purposes of the ADJR Act. Further, in any event, it is accepted that there is jurisdiction under s 39B(1) of the Judiciary Act to review the Competition Notice. As Optus submits and the Commission accepts, a valid s 151AKA(10) notice is a prerequisite to the issue of a valid Part A competition notice. An assessment of whether the Consultation Notice complies with s 151AKA(10) is a necessary incident to the Court's review of the Commission's decision to issue the Competition Notice. 63 The discretionary matters raised by the Commission as to the appropriateness, in certain circumstances, of review of a s 151AKA(10) notice do not go to jurisdiction but to discretion in the granting of relief. If such relief is sought at an early stage, such as prior to the issue of a Part A competition notice and before any final or operative or determinative decision has been made, relief may be denied on substantive or discretionary grounds (Robertson A, "The administrative law jurisdiction of the Federal Court Is the AD(JR) Act still important?" (2003) 24 ABR 89 at 94).