Administrative Law - Judicial review - Objection to competency of application - Entry into contracts by Civil Aviation Authority for supply and installation of equipment at Sydney (Kingsford Smith) Airport - Contracts let after submission of tenders by selected companies - Application for review by unsuccessful tenderer - Whether decisions to enter into contracts decisions of an administrative character made under an enactment

Administrative Decisions (Judicial Review) Act 1977 (Cth), ss.3, 5

Civil Aviation Act 1988 (Cth), ss.8, 9, 10, 12, 13

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

General Newspapers Pty Ltd v Telstra Corporation [1993] FCA 473; (1993) 117 ALR 629

Australian National University v Burns [1982] FCA 191; (1982) 43 ALR 25

Australian Capital Territory Health Authority v Berkeley Cleaning Group Pty Ltd (1985) 7 FCR 575

James Richardson Corporation Pty Ltd v Federal Airports Corporation (1992) 117 ALR 277

Australian Film Commission v Mabey [1985] FCA 121; (1985) 6 FCR 107

Federal Airports Corporation v Makucha Developments Pty Ltd [1993] FCA 315; (1993) 115 ALR 679

Solicitors for the applicant : Gillespie-Jones and Co.

Counsel for the respondent : Dr G.A. Flick S.C. and

Mr G.E.J. Johnson

Solicitors for the respondent : Freehill Hollingdale and Page

1. The objection to competency be upheld.

2. The application filed on behalf of the applicant on 14 April

1994 be dismissed.

3. The applicant pay the costs of the respondent of and

incidental to the application and the objection to

competency.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

NEAVES J The Civil Aviation Authority ("the respondent") has objected to the competency of an application to the Court by CEA Technologies Pty Limited ("the applicant") for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act"). The decisions in respect of which the order of review is sought are identified in the application as being -

1. The decision of the respondent notified to the applicant on

17 March 1994 "that the applicant not be awarded the

contract for the supply and installation of Tower Data

Processing and Display System and Associated Surface

Movement Radar Sensor at Sydney airport"; and

2. The failure of the respondent "to decide that the successful

tenderer, Owen International Pty Ltd, shall use goods,

materials and associated services of Australian or New

Zealand origin in the contract".

The ground of the objection is that neither of the decisions identified in the application is a "decision of an administrative character made .... under an enactment" within the meaning of that expression in the definition of "decision to which this Act applies" in s.3(1) of the Judicial Review Act.

2. It appears from the material before the Court that, on or about 15 October 1993, eight companies, including the applicant and Owen International Pty Ltd, were invited by the respondent to submit separate tenders for -

(a) the supply of a Tower Data Processing and Display System and

associated Surface Movement Radar Sensor and the provision

of spare parts, training and maintenance services; and

(b) the installation at Sydney (Kingsford Smith) Airport of that

System and Sensor.

The supply and installation of the equipment is said to be of critical importance to the operation and commissioning of the parallel runway currently under construction at Sydney (Kingsford Smith) Airport. The equipment is to provide guidance for the safe movement of surface traffic, both aircraft and vehicles, on the aprons and manoeuvring areas of the aerodrome.

3. Tenders for the supply and for the installation of the equipment were submitted by the applicant and by Owen International Pty Ltd. The respondent subsequently accepted the tenders submitted by Owen International Pty Ltd.

4. The enactment nominated by the applicant as being the enactment under which the decisions sought to be reviewed are asserted to have been made is the Civil Aviation Act 1988 (Cth) ("the Act"). The relevant sections of that Act are referred to hereunder. It is by s.8(1) of the Act that the respondent is established as a body corporate. The general functions of the respondent (referred to in the Act as "the Authority") are set out in s.9 of the Act which provides:

"(1) The functions of the Authority are:

(a) as provided by this Act and the regulations, to

conduct safety regulation of:

(i) civil air operations in Australian

territory; and

(ii) Australian aircraft operating outside

Australian territory;

(b) to provide air route and airway facilities;

(c) to provide air traffic control services, and flight

service services, for, in either case, surface traffic

of aircraft and vehicles on the manoeuvring area of

aerodromes;

(d) to provide a rescue and fire fighting service;

(e) to provide a search and rescue service;

(f) to provide an aeronautical information service;

(g) to provide consultancy and management services

relating to any of the matters referred to in this

subsection;

(h) to provide services to the Bureau of Air Safety

Investigation in relation to the investigation of

aircraft accidents and incidents;

(j) any functions conferred on the Authority under the Air

Navigation Act 1920;

(k) any other prescribed functions, being functions

relating to any of the matters referred to in this

subsection; and

(m) any functions incidental to any of the foregoing

functions.

(2) The functions do not include responsibility for

aviation security, but this subsection does not prevent the

Authority from participating in arrangements to prevent or deal

with hijacking or other acts of unlawful interference with civil

aviation.

(3) The Authority may provide its services and facilities

both within and outside Australian territory.

(4) Subject to section 12, the functions to provide

services and facilities may be performed at the discretion of the

Authority."

"10. (1) Without limiting the generality of the functions

of the Authority under paragraph 9(1)(a), those functions include

developing, ensuring compliance with, and implementing (including

implementing by means of certificates, licences, registrations and

permits) standards relating to:

(a) the flight crews engaged in operations of aircraft;

(b) the design, construction, maintenance, operation and

use of aircraft and related equipment;

(c) the personnel engaged in the maintenance of aircraft

and related equipment;

(d) the planning, construction, establishment, operation

and use of aerodromes;

(e) the personnel engaged in anything referred to in

paragraph (d);

(f) the planning, establishment, maintenance, operation

and use of air route and airway facilities, rescue and

fire fighting services and search and rescue services,

and any construction associated with those facilities

and services; and

(g) the personnel engaged in anything referred to in

paragraph (f).

(2) In developing standards, the Authority must, so far as

it is:

(a) reasonably practicable to do so; and

(b) consistent with the Authority's obligations under

section 11;

have regard to any costs that would arise from complying with the

standards."

"12. (1) The Minister may give the Authority written

directions as to the performance of its functions or the exercise

of its powers.

(2) Directions as to the performance of the regulatory

functions shall be only of a general nature.

(3) Particulars of any directions given in a financial

year shall be included in the annual report of the Authority for

that year.

(4) The Authority must comply with a direction given under

subsection (1)."

"13. (1) In addition to any other powers conferred on it

by this Act, the Authority has, subject to this Act, power to do

all things necessary or convenient to be done for or in connection

with the performance of its functions.

(2) Without limiting the generality of subsection (1), the

powers include, subject to this Act, power:

(a) to enter into contracts;

(b) to acquire, hold and dispose of real and personal

property;

(c) to join in the formation of companies;

(d) to enter partnerships;

(e) to let on hire plant, machinery, equipment or goods of

the Authority not immediately required by the

Authority; and

(f) to do anything incidental to any of the powers

specified in this subsection or otherwise conferred on

the Authority.

(4) Where the Authority may provide a facility or service,

the Authority may do so:

(a) itself;

(b) in co-operation with another person (including the

Commonwealth); or

(c) by arranging for another person (including the

Commonwealth) to do so on its behalf.

(5) The Authority may appoint a body or bodies to advise

the Authority in relation to the performance of its functions."

6. Counsel for the applicant also referred to regs 97 and 98 of the Civil Aviation Regulations made under the Act. Regulation 97 provides that the respondent "may establish, maintain and operate a service which shall be known as 'Air Traffic Control'". Regulation 98 sets out the functions of Air Traffic Control. One of those functions (see reg.98(1)(b)) is "to promote the safe movement of aircraft on manoeuvring areas by giving instructions and information".

7. Counsel for the respondent submitted that, in the light of what was said by Mason CJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at pp.336-7 in discussing the meaning of "decision" as it is used in the Judicial Review Act - statements with which the other justices agreed - and in the light of the judgment of the Full Court of this Court in General Newspapers Pty Ltd v Telstra Corporation Ltd [1993] FCA 473; (1993) 117 ALR 629, the Court was bound to uphold the objection to competency and dismiss, as incompetent, the application filed on behalf of the applicant. Counsel submitted that, although the present respondent, in deciding to enter into the relevant contracts, was carrying out one of the functions, and was exercising a capacity or power, conferred upon it by the Act, those circumstances were not, of themselves, sufficient to support the conclusion that the decisions were decisions made under the Act in the sense necessary to attract the review procedures provided for by the Judicial Review Act. To attract the operation of that Act, the decision sought to be reviewed must be shown, so it was submitted, to be one for the making of which the relevant statute expressly or impliedly provides and one to which the statute gives legal force or effect. It was submitted that neither of those criteria was satisfied in the present case.

8. Counsel for the applicant submitted that the decisions to enter into the relevant contracts were made by the respondent in carrying out a fundamental or central function conferred upon it by the Act, namely the function to develop, implement and ensure compliance with safety standards with respect to the movement of vehicles and aircraft on aerodromes under its control, and that the decisions were, in their very nature, directly concerned with that subject. It was submitted that, by reason of those circumstances, the decisions were properly regarded as having been made in pursuance, or under the authority, of ss.9 and 10 of the Act. It was said that, if a decision sought to be reviewed under the Judicial Review Act is one made in pursuance of a specific function expressly conferred upon the decision-maker by statute, the decision is, for the purposes of the Judicial Review Act, properly characterised as one made under that statute. Counsel sought to reinforce that submission by contending that ss.9 and 10 of the Act should be construed not merely as provisions setting out the functions of the respondent but as provisions imposing obligations on it in the sense that the provisions oblige it to carry out the functions there identified.

9. Counsel for the applicant sought to distinguish the present case from Australian National University v Burns [1982] FCA 191; (1982) 43 ALR 25 on the basis that the statutory provisions relied upon in that case were of a general nature lacking in the specificity to be found in the statute here under consideration. Counsel also sought to distinguish General Newspapers Pty Ltd v Telstra Corporation Ltd (supra) on the ground that that case did not concern statutory provisions of the kind here in question. Counsel further submitted that the decisions sought to be reviewed had a sufficiently close connection with the Act as to make it appropriate to speak of them as having been made under the statute, relying in this connection on Emanuele v Cahill (1987)18 FCR 304 at pp.313-5.

10. In Australian Broadcasting Tribunal v Bond (supra), Mason CJ said at p.336 that to be reviewable under the Judicial Review Act a decision must be one "which a statute requires or authorises" and, at p.337:

"The policy arguments do not, in my opinion, call for an answer

different from that dictated by the textual and contextual

considerations. 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."

11. General Newspapers Pty Ltd v Telstra Corporation Ltd (supra) was concerned with the circumstances leading to the making by Australian and Overseas Telecommunications Corporation Limited (the name by which Telstra Corporation Limited was then known) of contracts with trade rivals of the appellants for the printing of telephone directories. The appellants, so far as is relevant for present purposes, had appealed from the dismissal by the primary judge of their claim for orders of review under the Judicial Review Act in respect of the decisions to enter into the contracts and of conduct engaged in prior to the making of the contracts. Although the decisions to enter into the contracts were made by Australian and Overseas Telecommunications Corporation Limited, a company incorporated on 5 November 1991 under the Corporations Law in force in the Australian Capital Territory, the conduct which the appellants sought to have reviewed had been engaged in by the Australian Telecommunications Corporation. That body was a statutory corporation continued in existence by the Australian Telecommunications Corporation Act 1989 (Cth) until the repeal of that Act by s.24 of the Telecommunications (Transitional Provisions and Consequential Amendments) Act 1991 (Cth) with effect from 1 February 1992, on which date its property, rights and liabilities became, by the operation of s.11 of the Australian and Overseas Telecommunications Corporation Act 1991 (Cth), vested in Australian and Overseas Telecommunications Corporation Limited.

12. The Full Court (Davies, Gummow and Einfeld JJ) was unanimously of opinion that there was no conduct or decision that was amenable to an order under the Judicial Review Act. Davies and Einfeld JJ delivered a joint judgment to that effect, Gummow J agreeing (at p.657) with that conclusion and with the reasons given for it in the joint judgment.

"It should be noted that, as the Australian Telecommunications Act

ceased to have relevant effect on the succession day, 1 February

1992, no challenged decision was taken under that Act, although

some of the conduct complained of occurred whilst the Act had

force. As from the succession day, the Australian and Overseas

Telecommunications Corporation Act itself conferred no relevant

decision-making power. However, the memorandum of association of

Telecom, as then constituted, expressed its powers as extending to

'the legal capacity of a natural person', a power which was also

expressly conferred by s.161 of the Corporations Law.

Accordingly, the matters fall to be considered by reference to two

enactments, the Australian Telecommunications Act and the

Corporations Law, each of which conferred on the body constituting

Telecom at the relevant time the legal capacity of a natural

person, including the capacity to enter into contracts."

It is apparent that their Honours' reference to the Australian Telecommunications Act was intended as a reference to the Australian Telecommunications Corporation Act 1989 (Cth) to which their Honours had previously referred, stating that they "need not detail the provisions of that Act save that, under s.19(1), it conferred upon Telecom 'all the powers of a natural person' including the power '(a) to enter into contracts'". It may also be noted that their Honours referred to Telstra Corporation Limited (formerly Australian and Overseas Telecommunications Corporation Limited) and its predecessor, the Australian Telecommunications Corporation, as "Telecom".

"In our opinion, there was no conduct or decision on the part of

Telecom which was amenable to an order under the ADJR Act. The

ADJR Act provides the structure for judicial review, which is

review, not of acts taken under the general law applicable in the

community, but of acts which have statutory effect because of the

provisions of a federal enactment. Thus, a 'decision' taken under

a federal enactment is an action or a refusal to act which, by

virtue of the statute, affects legal rights and/or obligations. A

step which has no such effect is not a reviewable decision for the

purposes of s 5 of the ADJR Act. And conduct is not reviewable

under s 6 of the ADJR Act unless it is 'conduct for the purpose of

making a decision to which this Act applies'. The ambit of the

jurisdiction is limited to decisions as defined and to conduct

leading to the making of such decisions."

15. Referring to s.3(2) of the Judicial Review Act, their Honours said at p.634:

".... to be subject to review under the ADJR Act an action or

refusal to act must amount to an ultimate or operative

determination which an enactment authorises or requires, and

thereby gives it statutory effect. We include in this concept the

force and effect which may be given by an instrument as referred

to in the definition of 'enactment'".

16. After citing what had been said by Mason CJ in Australian Broadcasting Tribunal v Bond, their Honours said (p.636):

"The ADJR Act is thus concerned with decisions which, being

authorised or required by an enactment, are given force or effect

by the enactment or by a principle of law applicable to the

enactment. Issues concerning the relevant factors to be taken

into account, irrelevant factors which should not be taken into

account, improper purposes, and the law to be applied will be

matters to be decided having regard to the provisions of the

enactment under which the decision is made, and the object and

purposes of that enactment."

Their Honours then referred to Australian National University v Burns (supra), Australian Capital Territory Health Authority v Berkeley Cleaning Group Pty Ltd (1985) 7 FCR 575 and James Richardson Corporation Pty Ltd v Federal Airports Corporation (1992) 117 ALR 277 and expressed the opinion that the latter two cases should not be followed in preference to Australian National University v Burns as neither of those cases "gave to the term 'decision' the meaning which, in our view, it carries, namely that of an ultimate or operative determination which has force and effect by virtue of an enactment". Their Honours continued (p.636):

"A contract entered into by a corporation under a general power to

enter into contracts is not given force and effect by the

empowering statute. That empowering statute merely confers

capacity to contract, whilst the validity and effect of the

contract is determined by the ordinary laws of contract."

"In the present case, the decisions relied upon involved the entry

of contracts and the conduct challenged was conduct leading to the

making of the contracts. No statute made specific provisions for

such contracts, merely conferring upon Telecom all the powers of a

natural person including the power to enter into a contract. That

was a mere conferral of capacity to act. The contracts were not

relevantly authorised or required by and were not made under an

enactment. The validity of the contracts and of the acts done was

governed entirely by the law of contract, not by the statutes.

Thus, the ADJR Act had no application to the conduct or to the

alleged decision."

18. The facts in the present case, as indeed were the facts in General Newspapers Pty Ltd v Telstra Corporation Ltd, are distinguishable from those considered in Australian National University v Burns in that that case was not concerned with a decision to enter into a contract, but with a decision made under the terms of an existing contract. Similarly, the facts in Australian Capital Territory Health Authority v Berkeley Cleaning Group Pty Ltd and James Richardson Corporation Ltd v Federal Airports Corporation were distinguishable from those considered in Australian National University v Burns, those cases being concerned with decisions to enter into particular contracts and, in the case of the former, with conduct preceding the making of those decisions and not with decisions made under existing contractual arrangements. On the other hand, Australian Film Commission v Mabey [1985] FCA 121; (1985) 6 FCR 107 and Federal Airports Corporation v Makucha Developments Pty Ltd [1993] FCA 315; (1993) 115 ALR 679 concerned decisions made under the terms of existing contracts.

19. The distinction to which I have adverted was not, however, regarded as significant by the Court in General Newspapers Pty Ltd v Telstra Corporation Ltd. It is clearly established by that case that the decisions made by Australian and Overseas Telecommunications Corporation Limited to enter into the relevant contracts were not to be regarded as decisions made under an enactment for the purpose of the Judicial Review Act by reason of the circumstance that s.161 of the Corporations Law conferred on the company the legal capacity of a natural person, including the capacity to enter into contracts. It is also implicit in the decision in that case that, had the decisions to enter into the relevant contracts been made by the statutory corporation known as the Australian Telecommunications Corporation, the result would have been no different, it not being sufficient to bring the decisions within the Judicial Review Act that s.19(1) of the Australian Telecommunications Corporation Act conferred on the statutory corporation "all the powers of a natural person" including the power "(a) to enter into contracts". Davies and Einfeld JJ expressly stated that they need not detail the provisions of the last mentioned Act apart from s.19(1). Counsel for the present respondent drew the Court's attention to the fact that that Act contained provisions to similar effect in relation to the activities of the Australian Telecommunications Corporation as the provisions of the Civil Aviation Act relied on by the present applicant make in relation to the present respondent. He referred to ss.14 and 16 which set out the functions of the Australian Telecommunications Corporation, including the functions of supplying telecommunications services within Australia and the carrying on of any business or activity incidental to the supplying of those services, to s.17 which conferred power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions and to s.18(b) which expressly conferred power to publish telecommunications directories. The absence of any reference to those provisions in the judgment of Davies and Einfeld JJ in General Newspapers Pty Ltd v Telstra Corporation Ltd may simply reflect that they were not relied on by the appellants in that case. On the other hand, their Honours may have taken the view that they carried the matter no further than the provisions of s.19(1) to which their Honours did refer.

20. The argument advanced by counsel for the applicant in the present case, however, requires that an answer be given to the question whether the presence in the Civil Aviation Act of ss.9 and 10 compels the conclusion that the decisions by the respondent to enter into the relevant contracts are properly to be characterised as decisions made under those provisions. In my opinion, that question must be answered adversely to the applicant. Sections 9 and 10 of the Act do no more than set out the functions of the respondent. It cannot, in my opinion, properly be said that they required or authorised, in any relevant sense, the making of the particular decisions in question and gave statutory effect to them or that they relevantly made provision for the making of the decisions. While the specifications forming part of the contracts may have reflected decisions taken by the respondent as to the standards to be observed in the operation and use of Sydney (Kingsford Smith) Airport (see s.10(1)(d)) and while it may be said that the respondent was seeking, by the installation of the equipment in question, to implement those standards, it is not those decisions, but the decisions to enter into contracts for the supply and installation of that equipment, that are the subject of challenge. The question whether such decisions, if made, are reviewable under the Judicial Review Act is not a question which now arises and I express no view upon it.

21. The objection to competency is upheld. The application filed on behalf of the applicant on 14 April 1994 is dismissed. The applicant must pay the costs of the respondent of and incidental to the application and the objection to competency, such costs to be party and party costs. I can find no sufficient basis upon which to accede to the respondent's submission that a special order for costs should be made.