Glasson v Parkes Rural Distributions Pty Ltd

The question to be decided on this appeal, which is brought from a judgment of the Full Court of the Federal Court, is whether the Federal Court had jurisdiction to entertain an application made by the present respondent, Parkes Rural Distributions Pty. Ltd., under the Administrative Decisions (Judicial Review) Act 1977 Cth, as amended, for an order to review a decision made by the present appellant on 2 February 1982. It is common ground that in the present case the answer to that question depends on whether the decision in question was "a decision of an administrative character made under an enactment" within the meaning of s. 3(1) of that Act. An enactment is defined, by s. 3(1) of that Act, to mean, inter alia, an Act of the Commonwealth Parliament and an instrument made under such an Act. The decision of the appellant which the respondent sought to review was the decision to issue a certificate dated 2 February 1982 and signed by the appellant as "Authorized Officer". The certificate read as follows:

I, Edward John Glasson, an authorised officer under section 6 of the Petroleum Products Subsidy Act 1965 N.S.W. am satisfied that the amounts paid to Parkes Rural Distributions Pty. Ltd. under the said Act in respect of claims made for the months of April 1980 to June 1981 inclusive exceeded the amount that was payable to Parkes Rural Distributions Pty. Ltd. by One hundred and fifty two thousand three hundred and seventeen dollars and seventy cents ($152,317.70) and I hereby certify that the amount of $152,317.70 is repayable by Parkes Rural Distributions Pty. Ltd. to the State of New South Wales.

The appellant objected to the jurisdiction of the Federal Court to hear the application, and this objection was upheld by McGregor J. [1] . On appeal to the Full Court it was, however, held, by a majority, that the objection to competency should be dismissed [2] . 1. (1982) 45 A.L.R. 205. 2. 77 F.L.R. 195 (1983) 48 A.L.R. 601.

The contention advanced on behalf of the respondent is that the decision was made under a scheme formulated by the relevant Minister of State for the Commonwealth under the States Grants (Petroleum Products) Act 1965 Cth, as amended ("the Commonwealth Act") in respect of the State of New South Wales and that the scheme was an instrument under the Commonwealth Act and so an enactment within s. 3(1) of the Administrative Decisions (Judicial Review) Act. Section 3 of the Commonwealth Act provides that:

There are payable to each State, by way of financial assistance, amounts equal to the amounts expended by that State in making payments to distributors of eligible petroleum products in accordance with a scheme formulated by the Minister in relation to that State for the purposes of this Act. By s. 4 the Minister is given power to formulate, amend or revoke a scheme in relation to a State. Section 5 contains provisions with which a scheme must comply. By s. 5 (2) the scheme shall contain a provision authorizing the Minister or an officer of the Australian Public Service appointed by the Minister in writing to direct that any particular goods shall, or shall not, be treated as motor spirit, power kerosene, automotive distillate, aviation gasoline or aviation turbine fuel (which themselves are "eligible petroleum products": s. 2) for the purposes of the scheme and the Commonwealth Act. By s. 5(3) the scheme shall contain a provision authorizing the Minister or an officer of the Australian Public Service appointed by him in writing to register persons as distributors of eligible petroleum products for the purposes of the scheme and to revoke such registration (par. (a)) and a provision that persons to whom payments may be made by the State under the scheme shall be such distributors of eligible petroleum products as are so registered (par. (b)). By s. 5(3A) an application may be made to the Administrative Appeals Tribunal for a review of a direction under s. 5(2) or a refusal or revocation of a registration under s. 5(3)(a). Nowhere else in the Commonwealth Act is there any indication of an intention that a person mentioned in the scheme should have a right to administrative review. By s. 5(5)(a) the scheme "shall provide for the payment by the State to registered distributors of eligible petroleum products, in respect of the sale by them at places to which the scheme applies of any eligible petroleum products, of amounts ascertained in accordance with the scheme". It appears that the rates of payment may be different at different places: s. 5(6). By s. 8, the scheme in relation to a State is to be deemed to be an order made by a Minister within the meaning of s. 5 of the Evidence Act 1905 Cth, as amended, which makes provision for the proof of such orders. Section 11 of the Commonwealth Act provides: Payment to a State under this Act of any amount (including an advance) is subject to the condition that the State will repay to the Commonwealth, on demand by the Minister of State for Finance, the amount by which, at the time of the demand, the total of the amounts (including advances) paid to the State under this Act exceeds the total of the amounts that have become payable to the State under section 3 of this Act.

The scheme formulated in relation to New South Wales provides that the making by the Commonwealth of payments by way of financial assistance under the Commonwealth Act shall be subject to there being in force in the State legislation of the State by which payments by the Commonwealth in accordance with the scheme are authorized and provided for: see cl. A2(2). The scheme itself deals in considerable detail with such matters as eligible petroleum products, the registration of distributors, the amounts that distributors are entitled to claim and the making of payments by the State. Paragraph E of the scheme deals with the last-mentioned subject. By cl. E1(1) it is provided that a claim shall be examined by an authorized officer whose function will be to give a certificate stating the amount that in his opinion is payable to the registered distributor in connexion with the claim. The expression "authorised officer" is defined by cl. A3 of the scheme as "an officer of the Department of Business and Consumer Affairs of the Commonwealth or of any other Department of the Commonwealth whose Minister from time to time is responsible for the administration of the Act [i.e., the Commonwealth Act] and who is authorized in the relevant behalf by or under the State legislation or otherwise under State law". The giving of a certificate under cl. E1 is not to be taken as finally disposing of a claim and each claim shall (subject to cl. E2(6)) be subject to further examination: see cl. E2(1). Clause E2(2) provides as follows:

If upon any further examination of a claim an authorized officer is satisfied that the amount the registered distributors is entitled to in connexion with the claim differs from the amount specified as payable in the certificate relating to the claim, the difference shall, after allowance is made for any previous adjustments under this clause, be payable by the State to the registered distributor or be recoverable by the State from the registered distributor, as the case may require. Clause E2(3) and (4) provides for amounts payable or recoverable pursuant to cl. E2(2) to be added or deducted by an authorized officer to or from the amount for which he would otherwise give a certificate under cl. E1 in connexion with a subsequent claim. Clause E2(5) provides: Where an amount or the balance of an amount is payable by the State to a registered distributor or is recoverable by the State from a registered distributor and is not taken into account in connexion with a subsequent claim as provided in sub-clause (3) or (4) of this clause, an authorized officer shall give a certificate stating that in his opinion the amount or the amount of the balance, plus any amount for administrative costs calculated as provided in clause E5, is so payable or recoverable as the case may be. Clause E2(6) provides: After the expiration of a period of two years from the date a claim is made, no adjustment shall be made or certified under this clause to the amount certified as payable in connexion with the claim except an adjustment for the recovery of an overpayment arising out of fraud in relation to the claim or to payment under the claim. Clause E3 provides: Subject to the provisions of this scheme, the registered distributor named in a certificate given in accordance with clause E1 or clause E2 as the person to whom an amount is payable shall be entitled to be paid by the State the amount stated in the certificate as payable thereunder to the registered distributor. Clause E7 provides: Payments by the State to a registered distributor of amounts to which the registered distributor is entitled under clause E3 and of amounts provided for by clause E4 shall, as between the Commonwealth and the State, be payments by the State in accordance with this scheme provided that, in ascertaining the total of the payments by the State, any amounts recovered by the State from the registered distributor or refunded to the State by the registered distributor as contemplated in this Part shall for the purposes of this scheme be brought into account as deductions.

Nothing in the Commonwealth Act or in the scheme makes a certificate under cl. E2(5) enforceable by or against a distributor, and the obligations expressed in cl. E3 are given no effect by the Commonwealth Act. They are obligations between the State and the registered distributor and they await the enactment of the envisaged State legislation to give them binding effect. The Commonwealth Act provides for the grant of moneys to the State on conditions which are set out in the scheme. It was passed in intended exercise of the power given by s. 96 of the Constitution, and reveals an intention that the State law may do what a Commonwealth law could not, i.e., give preference to part of one State over another: s. 99 of the Constitution. The scheme defines the circumstances in which payments were to be made to distributors by the State but neither the Commonwealth Act nor the scheme directly gives rights to, or imposes obligations on, the distributors.

The State legislation envisaged by cl. A2(2) of the scheme is the Petroleum Products Subsidy Act 1965 N.S.W., as amended ("the State Act"). Section 4 provides:

There are payable, in accordance with this Act, to registered distributors of eligible petroleum products, amounts ascertained in accordance with the scheme.

The scheme is the scheme formulated in relation to the State for the purposes of the Commonwealth Act. Section 6(1) provides that the Minister (i.e., the appropriate Minister of the State of New South Wales) may appoint persons to be authorized officers for the purposes of the State Act. The State Act does not require that the person to be appointed as an authorized officer shall be an officer of the Commonwealth, but allows an officer of the Commonwealth to be so appointed: s. 6(2). Section 16 gives the Minister a power of delegation. The appellant was appointed by a delegate of the Minister to be an authorized officer "for the purpose of Section 6 of the Petroleum Products Subsidy (Amendment) Act, 1978 ". This description of the purpose of the appointment is obviously erroneous; the reference must have been intended to be to s. 6 of the State Act, and not to s. 6 of the Amendment Act. Nothing has been made of the error, which, in any case, cannot assist the respondent's present argument. Section 8 of the State Act, so far as is presently material, provides:

(1) An authorized officer shall examine each claim for a payment under this Act made to him and shall, if he is satisfied that an amount is payable to the claimant, give a certificate in writing to that effect.

(2) An authorized officer who is examining a claim for a payment under this Act may give a certificate in writing that a sale or use of a specified quantity of an eligible petroleum product by a specified person took place at a specified date and place.

(3) Where an authorized officer is satisfied that an amount paid to a person under this Act (including an amount paid by way of an advance) was not payable to that person or exceeded the amount that was payable to that person, he may give a certificate in writing that the amount paid or the amount of the excess, as the case may be, is repayable by that person to the State.

Where an authorized officer gives a certificate under s. 8(3) that an amount is repayable by a person to a State, the person is liable to repay that amount to the State and such amount is recoverable as a debt due to the State: s. 10.

The Full Court held that the decision embodied in the certificate was made under the Commonwealth Act and the scheme, notwithstanding that it was also made under the State Act. With all respect, we cannot agree. The appellant derived his authority to give the certificate in question from the State Act and from no other source. He was, as the scheme envisaged, appointed under the State Act to be an authorized officer, and the power which he exercised was conferred on him by s. 8(3) of that Act. The certificate derived its legal efficacy to impose a legal liability on the distributor entirely from the State Act, and in particular from s. 10. No action taken under the Commonwealth Act or under the scheme could either strengthen, or detract from, the force of the certificate under s. 8(3). The State Act of course proceeds on the assumption that there was in force a scheme by reference to which the amounts payable should be ascertained and an authorized officer, in giving a certificate, would be bound to consult the scheme and to ascertain the amounts payable in accordance with the scheme. However, although the scheme would give the authorized officer authoritative guidance, it did not give him power or authority to make the decision to issue the certificate and it was not the legal source of the rights and liabilities which the certificate created and imposed. Finally, the certificate issued by the appellant purports to have been issued under s. 8(3) of the State Act and closely follows the words of that section, which although similar to are not the same as those of cl. E2(5) of the scheme. The issue of the certificate might have a practical effect on the rights and liabilities of the Commonwealth and the State inter se as measured by the scheme: it might lead to a repayment by the distributor to the State, and thereby affect the adjustment of accounts between the Commonwealth and the State pursuant to ss. 3 and 11 of the Commonwealth Act and cl. E7 of the scheme, but that does not mean that it was issued under the scheme. When neither the Commonwealth Act nor the scheme is the source of the power to appoint the decision-maker, or the source of his power to make the decision, or the source of the decision's legal effect, it cannot be said that the decision was made under that enactment. For these reasons, we find it impossible to say that the certificate was issued under the authority, or in pursuance, of the Commonwealth Act or the scheme, or that it represents or embodies a decision made under the Commonwealth Act or the scheme. It was issued entirely under the State Act. It was not a decision "under an enactment" within the Administrative Decisions (Judicial Review) Act, and it follows that the objection to the competency of the application was rightly upheld by McGregor J.