CONSIDERATION
31 The argument that a Pt XVB review is not a "review" for the purposes of s 10(2)(b)(ii) and s 10(3) finds some support in the judgment of Burchett J in Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52. In that case, Burchett J was concerned with the question whether certain regulations made pursuant to the Telecommunications Act 1975 (Cth) (the Telecom Act) provided for a "review" of the Australian Telecommunications Commission's decision to retire Mr Colpitts from service within the meaning of that term as used in s 56(2) of the Telecom Act. Thus, his Honour was not directly concerned with the proper construction of s 10(2)(b)(ii) of the ADJR Act, but with the proper construction of s 56(2) of the Telecom Act. However, in construing s 56(2), his Honour remarked (at 62) that both the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) and the ADJR Act "… use the word 'review' in a sense involving the independent exercise of powers directly affecting the decision reviewed." While his Honour did not refer expressly to s 10(2)(b)(ii) of the ADJR Act, I think it is apparent from what his Honour said on the subject that he would have understood the word "review" as used in s 10(2)(b)(ii) and s 10(3) to refer to a review by an independent authority with power to alter the result.
32 The respondents submitted that Burchett J's observations may be disregarded because his Honour was reversed on appeal: see Australian Telecommunications Commission v Colpitts (1986) 12 FCR 395 (Toohey, Fisher and Jackson JJ). I do not think this follows. It is apparent that the Full Court took a different view to his Honour as to what was intended by the use of the word "review" in s 56(2) of the Telecom Act. Toohey J referred to previous authority which made the point that "review" is not a precise term: Woss v Jacobsen (1985) 11 FCR 243 per Toohey J at 252 and per Davies J at 259 citing Bannister v See (1982) 42 ALR 78 at 81 per Toohey J. But I do not think Toohey J disagreed with what Burchett J said obiter in relation to the use of the word "review" in both the AAT Act and the ADJR Act. On the contrary, his Honour appears to have accepted what Burchett J said on that topic.
33 More directly on point are the observations of Davies J in Bragg v Secretary, Department of Employment, Education and Training (1995) 59 FCR 31 where his Honour said (at 33):
The "review" that s 10(2)(b)(ii) contemplates should, as Burchett J described it in Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52 at 62, be a review involving "an independent exercise of powers directly affecting the decision reviewed".
His Honour went on to hold that the appeal procedure with which he was concerned was a review for the purposes of s 10(2)(b)(ii) of the ADJR Act. He also found that it was an adequate review for the purposes of s 10(2)(b)(ii).
34 I do not accept the applicants' submission that the TMRO is not independent of the Minister. However, the question whether the TMRO exercises powers directly affecting the decisions which the applicants wish to have reviewed is more difficult.
35 The Minister must affirm his or her earlier decision if the TMRO recommends that this be done. In these circumstances, the TMRO will have exercised powers directly affecting the earlier decision, but that is of no comfort to a person who disputes the validity of the earlier decision. If the TMRO recommends that findings be re-investigated by the CEO then the Minister must require the CEO to carry out a re-investigation. But it still remains open to the CEO to affirm the findings that the CEO previously made.
36 Importantly, the Minister is not required to act in accordance with any recommendation of the TMRO beyond either affirming the earlier decision or requiring the CEO to conduct a re-investigation. Nor does the TMRO have any further role to play in the review process should the Minister decide to require the CEO to carry out a re-investigation.
37 It seems to me, in light of the authorities to which I have referred, that the review of the decisions in issue in this case provided for by Pt XVB is not a review of the kind referred to in s 10(2)(b)(ii) of the ADJR Act. The description of the review process adopted by Burchett J in Colpitts (at 62) - which he likened to an "appeal from Caesar to Caesar" - is not apt to describe the review process available to the applicants under Pt XVB in this case. Nevertheless, it still falls short of what Davies J in Bragg considered necessary to enliven the discretion under s 10(2)(b)(ii).
38 It follows that the discretion arising under s 10(2)(b)(ii) is not enlivened in this case, and I do not have power to dismiss or stay the applicants' proceedings on discretionary grounds pursuant to that provision.
39 This brings me to s 16 of the ADJR Act. In Kamha v Australian Prudential Regulation Authority (2005) 147 FCR 516 (Emmett, Allsop and Graham JJ) considered whether it was open to a Court considering an application for judicial review under the ADJR Act to refuse relief on the basis that the applicant had an alternative remedy by way of full merits review of the decision in question pursuant to s 63 of the Insurance Act 1973 (Cth). The distinguishing feature of Kamha was not that the alternative remedy was something less than a "review" for the purposes of s 10(2)(b)(ii), but that a further administrative step needed to be taken before the review process could be engaged by the applicant. On the question of the relationship between s 10(2)(b)(ii) and s 16 the Full Court said (at [87]):
The grant of relief under the ADJR Act is discretionary. That is consistent with the principles concerning the grant of relief under the prerogative writs. There was a discretion for a court to refuse prerogative relief where an alternative remedy was available. That principle is also the origin of the express discretion conferred by s 10(2)(b). Nevertheless, that express discretion does not derogate from the general discretion arising under s 16. Section 16 undoubtedly reserves a discretion to the Court as to whether to grant relief in a particular case. While s 10(2)(b) is directed to the specific circumstance where adequate provision is made by another law for an applicant to seek review of a decision and giving rise to an express discretion to refuse relief, the absence of engagement of that provision does not preclude the exercise of the residual discretion conferred on the Court by s 16.
40 The proceeding was remitted by the Full Court to the primary judge (Gyles J) to consider how the discretion should be exercised: Kamha v Australian Prudential Regulation Authority (2007) 98 ALD 49. Gyles J subsequently dismissed the proceeding on the basis that the applicant had a suitable alternative remedy by way of full merits review. In coming to that conclusion, his Honour observed (at para [8]) first, that the judicial discretion under s 16 is at large even when a case for relief is made out, and secondly, that there are no mandatory criteria governing its exercise.
41 In the present case there is a review of a limited kind available to the applicants. That there is not a full merits review is partly explained, perhaps, by the nature of the decisions made by the Minister which may have an impact across whole industries and large parts of the national economy. The respondents made the point that the fact that a Pt XVB review leads to a reconsideration by the original decision maker (ie. the Minister) does not detract from its adequacy as a scheme of review, but merely reflects the discretionary nature of the decision made by him.
42 In my view, the fact that the Pt XVB review leads to a reconsideration by the Minister does detract from the scheme of review. This is a feature that distinguishes a Pt XVB review from the scheme of review under consideration in Swan Portland Cement and Du Pont (Australia) v Comptroller-General of Customs (1993) 30 ALD 829 (Heerey J) where the particular decisions in issue were open to full merits review by the Anti-Dumping Authority established by the (since repealed) Anti-Dumping Authority Act 1988 (Cth). Here, the review is limited to what is, in substance, a review by the CEO of his or her own findings and a re-consideration by the Minister which takes place in light of the CEO's review.
43 Even so, in an appropriate case, the broad discretion arising under s 16(1) of the Act would entitle the Court to refuse substantive relief in respect of a decision made by the Minister under s 269TG or s 269TJ of the Act in a proceeding under the ADJR Act in circumstances where the applicant was at the same time seeking review of such decisions pursuant to Pt XVB of the Act. Whether the Court should exercise its discretion under s 16(1) against an applicant in such a case would depend upon all the circumstances. It seems to me that questions of timing will usually be of considerable significance. If the evidence indicated that a re-consideration of the Minister's decision as part of a Pt XVB review instigated by the applicant was imminent, then this would be relevant in deciding whether or not relief should be withheld. The nature of the issues raised in the proceeding for judicial review are also likely to be significant because many of the questions of law arising in proceedings concerned with decisions to which Pt XVB applies involve questions of mixed fact and law that are of a quite technical and complex nature.
44 In the present case the Pt XVB review process has been engaged by the applicants and numerous other parties. The time frames within which the Pt XVB review must take place require the TMRO to make a recommendation to the Minister within 60 days of publication of the notification of the review unless the Minister allows additional time due to special circumstances. Ordinarily, the TMRO would be expected to provide his recommendation to the Minister in this case by no later than 12 November 2012. In these circumstances, there is a distinct possibility that the TMRO will have made his recommendation by that date. This could, theoretically at least, enable the hearing of this proceeding to take place on the dates that have been provisionally fixed.
45 In the present case I am not satisfied that it is appropriate to dismiss this proceeding pursuant to s 16(1) merely because the applicants have also instigated a review pursuant to Pt XVB of the Act. Any embarrassment or inconvenience that might be suffered by the respondents as a result of having to participate in proceedings for judicial review and a Pt XVB review of the Minister's decisions is just as easily overcome in the present case by adjourning the proceeding until sometime after the Minister has made a decision under s 269ZZL of the Act.
46 In the circumstances, I do not propose to confirm the provisional fixture given that the Pt XVB review is proceeding in accordance with the statutory scheme. In particular, it would not be appropriate to pre-empt the TMRO's decision by confirming the provisional fixture in the expectation that the TMRO will make a recommendation that the earlier decisions be affirmed or to proceed to a final hearing before the Pt XVB review has been given a reasonable opportunity to produce an outcome.
47 The position might be different if the earlier decisions were said to have been affected by a lack of procedural fairness or if they raised what might be called pure questions of law. In this case, the applicants do not assert that there has been any lack of procedural fairness, and although the application for judicial review and the agreed issues postulate questions of law, most of these involve questions of mixed fact and law that are technical and complex.
48 Assuming that the TMRO does not recommend that the Minister's decisions be affirmed or that the Minister does not accept a recommendation by the TMRO that the Minister require the CEO to re-investigate, then the Minister's decisions will eventually be affirmed, revoked or varied by the Minister after he has had the opportunity to consider the CEO's report. This does not mean that the hearing of the proceeding must be delayed until that occurs. Particularly in circumstances where one significant step in the process (the preparation of the CEO's report) need not be completed within any specified time frame, it would not be appropriate to adopt such a rigid approach. But I do not think it appropriate to bring the matter on for final hearing at this stage when there is a real prospect that the Court will be required to review further decisions of the Minister made after a re-investigation conducted in accordance with Pt XVB of the Act. Given that the applicants have initiated the Pt XVB review, it seems to me the process should be given a reasonable opportunity to bear fruit and without either the CEO or the Minister having to give attention to this proceeding and the Pt XVB review at the same time.