Case: Australian Broadcasting Tribunal v Bond [1990] HCA 45 ; (1990) 170 CLR 306
Outcome: applied
In Australian Broadcasting Tribunal v Bond [1990] HCA 45 ; (1990) 170 CLR 306 (" Bond "), Mason CJ noted that there was no definition in the ADJR Act of the central term "decision". The Chief Justice (with whom Brennan and Deane JJ agreed) said (at 337): That answer is that a reviewable "decision" is one for which provision is made by or under a statute. That 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. A conclusion reached as a step along the way in the course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment. Another essential quality of a reviewable decision is that it be a substantive determination. 94 It is clear from what follows in the reasons of the Chief Justice that he used the term "substantive determination" to distinguish such a determination from a procedural determination. The Chief Justice also said that, having regard to the context, the reference in s 3(2)(g) to "doing or refusing to do any other act or thing" should be read as a reference to the exercise or refusal to exercise a substantive power. 95 In Edelsten v Health Insurance Commission (1990) 27 FCR 56, Northrop and Lockhart JJ referred to the reasons of Mason CJ in Bond and said (at 68): Bond is authority for the principle that generally, for a decision to be reviewable under the Judicial Review Act it must have a quality of finality, not being merely a step taken on the way to the possible making of an ultimate decision; it must have the essential quality of being substantive as distinct from a procedural determination. The rationale underlying Bond is that Parliament could not have intended the Judicial Review Act to be a vehicle for judicial review of every decision of a decision-maker under a Commonwealth enactment. Some decisions will have a real impact upon a person's rights, privileges or obligations; some will have no such impact, while others are mere stepping stones which may lead ultimately to the making of a decision which does affect the person's position. 108 The relationship between s 5(1)(h) and s 5(3) has been the subject of a good deal of debate in the authorities: Bond at 355-358 per Mason CJ; Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32 ; (2002) 210 CLR 222 (" Rajamanikkam "); SGFB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 422 (" SGFB ") at [17]-[21] per von Doussa, O'Loughlin and Selway JJ; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Applicants S134/2002 [2003] HCA 1 ; (2002) 211 CLR 441 at 458 [35] - [36] per Gleeson CJ, McHugh, Gummow, Hayne and Callinan JJ. Rajamanikkam and SGFB dealt with provisions in the then Migration Act 1958 (Cth) which were in similar terms to s 5(1)(h) and s 5(3) of the ADJR Act and, in Rajamanikkam , the Justices made it clear that their analysis also applied to the ADJR Act provisions: at 226 [1], 234 [32]-[34] per Gleeson CJ at 240 [54] per Gaudron and McHugh JJ and at 244 [74] and 255 [110] per Kirby J. An important question debated in those authorities is whether the ground in s 5(1)(h) is made out if one of the matters in s 5(3) is established, or the ground in s 5(1)(h) is made out only if there was no evidence or other material to justify the making of the decision and one of the matters in s 5(3) is established.