Case: Griffith University v Tang [2005] HCA 7 , 221 CLR 99
Outcome: followed
Considerable care, of course, needs to be exercised in too rigidly approaching the definition in s 3 as having three discrete elements, namely that there be a " decision ", that that decision be of an " administrative character ", and that it be made " under an enactment ": Griffith University v Tang [2005] HCA 7 , 221 CLR 99 per Gummow, Callinan and Heydon JJ. Their Honours there observed: [60] The cases, particularly in the Federal Court, have tended to see these as discrete elements. But there are dangers in looking at the definition as other than a whole. The interrelation between them appears from the following passage in the joint judgment of Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond [(1990) 170 CLR 321 at 377] respecting the ADJR Act: It does not follow that, because s 5 is not confined to acts involving the exercise of or a refusal to exercise a substantive power, the acts which constitute a decision reviewable under s 5 of [the ADJR Act] are at large. They are confined by the requirement in s 3(1) that they be made 'under an enactment'. A decision under an enactment is one required by, or authorized by, an enactment. The decision may be expressly or impliedly required or authorized. If an enactment requires that a particular finding be made as a condition precedent to the exercise of or refusal to exercise a substantive power, a finding to that effect is readily characterized as a decision 'under an enactment'. However, it is otherwise with respect to findings which are not themselves required by an enactment but merely bear upon some issue for determination or some issue relevant to the exercise of a discretion. Findings of that nature are not themselves 'decisions under an enactment'; they are merely findings on the way to a decision under an enactment. (citations omitted) Their Honours later went on to conclude: [89] 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. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice. 14 The " enactment " pursuant to which any decision made by the Authority has been taken is identified in the Amended Application as being either s 255 of the Superannuation Industry (Supervision) Act 1993 (Cth) or s 56(4) of the Australian Prudential Regulation Authority Act 1998 (Cth). Written submissions filed on behalf of the Applicant also placed reliance upon s 11 of the 1998 Act. The Respondents contend that there has been no decision " under an enactment "; any decision made, it is contended, does not " alter or otherwise affect legal rights or obligations ". 15 No submission was advanced by the Authority contending that its August and December 2007 letters did not constitute a " decision " within the meaning of s 3(2) of the Administrative Decisions (Judicial Review) Act . 33 The term " matter " as used in s 39B has the same meaning that it has in ss 75 , 76 and 77 of the Constitution : Commonwealth v Lyon [2003] FCAFC 284 at [24] , [2003] FCAFC 284 ; 133 FCR 265 at 272 per Branson, Madgwick and Hely JJ. The term " matter ", it has been said, " requires some immediate right, duty or liability to be established by the court ": Griffith University v Tang [2005] HCA 7 at [90] , [2005] HCA 7 ; 221 CLR 99 at 131 per Gummow, Callinan and Heydon JJ.