THE ADJR ACT REQUIREMENTS
30 Applications for review may be made under the ADJR Act where a person is aggrieved by "a decision to which this Act applies": s 5(1). Section 3(1) provides that a:
"decision to which this Act applies means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be … under an enactment …"
31 The Minister submits that the Court does not have jurisdiction under the ADJR Act because his actions were not "decisions" to which that Act applies, they were not of "an administrative character" and they were not made "under an enactment". The questions whether there is a decision and whether it is one made under an enactment are necessarily inter-related and were treated as such by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. His Honour observed (at 336) that a reviewable "decision" is one for which provision is made by or under a statute and that a decision will generally be "final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration" (at 337). His Honour held that a decision is "made" under an Act if it is "a decision which a statute requires or authorizes" (336) or "for which provision is made by or under a Statute" (337). A reviewable decision was described by Lehane J as one made "in pursuance of" or "under the authority of" the statute: Australian National University v Lewins (1996) 138 ALR 1, 14. It has also been held that a decision is one made under an enactment where the statute, or a principle of law applicable to it, gives the decision legal force or effect: General Newspapers Pty Ltd v Telstra Corp (1993) 45 FCR 164, 169, 170, 172.
32 It is necessary first to identify the decisions made by the Minister. He has clearly decided that the taking of a certain percentage of the population of each of the species will not have a significant impact upon the viability of the species. The agreement with the three States reflects a decision that the numbers to be culled be allowed on a co-operative basis. He has decided that holders of a State permit, permitted to cull a specific number of the species, do not need to refer that proposed action to him.
33 It may be observed that the Act does not refer to a decision of the first kind, except that it poses the question, for both the Minister and the person proposing the action, whether the action will have a significant impact on the species. The agreements with the States are not of a kind envisaged by the Act, although they would not appear to be contrary to the statutory object of co-operation. They are of a more limited kind than a bilateral agreement. The last mentioned decision, that a referral of actions to the Minister will not be necessary, is not one required or authorised by the Act. Insofar as it purports to provide an exemption from a statutory obligation, not being an exemption provided for by the Act, is a matter to which I shall return.
34 The Society did not identify particular statutory provisions under which the decisions could be said to have been made, nor did the Society suggest that the decisions purported to be made in reliance upon powers contained in the Act, and to be reviewable on that basis: Blurton v Commonwealth Minister for Aboriginal Affairs (1991) 29 FCR 442, 448. Its principal contention was that the decisions should be taken to have been made under the Act.
35 In Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290, it was held (at 302-303) that a legislative provision operating upon a determination made by a Minister can be construed as impliedly conferring the statutory function of making the particular determination. Their Honours went on (303):
"…Such a construction is likely to be clearly warranted in a case where the determination upon which the legislative provision operates is a determination to be made for the purposes of the particular provision and at a time when and in the circumstances in which the provision is called upon to operate, where no other statutory source of obligation to consider whether the determination should be made or of authority to make it is apparent and where the legislative provision will be without effective content if no authority to make the requisite determination exists."
36 In that case the Migration Act 1958 (Cth) provided that a condition of a grant of an entry permit to a "non-citizen" was that the Minister determine, in writing, that the person had the status of a refugee. The respondent applied to the Minister to be recognised as a refugee as defined in the United Nations Convention relating to the Status of Refugees of 1951. The Minister replied that he had decided that the respondent was not eligible for the grant of refugee status. The majority held (at 303) that the determination made by the Minister was made for the purposes of the statutory provision and that circumstances existed for its determination. There was no other apparent statutory source of obligation to consider whether such a determination should be made and no other authority to make it. Gibbs CJ and Brennan J dissented on the question whether the Commonwealth was the source of power, but the majority decision has been followed in Attorney-General (Cth) v Oates (1999) 198 CLR 162 and Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 273.
37 It would not seem to me a sufficient connexion with a statute, for the purpose of treating a decision as made pursuant to it, to say, as the Society did, that the statute should have been the source of power. Clearly there needs to be a statutory authority but there must also be shown circumstances upon which the statutory provision was meant to operate.
38 In the present case there was statutory authority for a determination, on the part of the Minister, as to the significance of the impact on the species. Notably it is one to be made under the Act after seeking information or comment on the proposed action the subject of a referral and considering them, processes which have not been undertaken. Importantly, the determination is to be made when a reference is made to the Minister of a particular proposal. That is to say, the occasion for the exercise of s 75(1) has not arisen. The subsection cannot be taken to impliedly confer a statutory function. In these circumstances it is not necessary to consider the further question, whether that determination by the Minister would itself be a reviewable decision if it were made in connexion with a referral (see Bond, 337).
39 The other aspect of the Minister's decision in that regard, is that it could not be said to be operative or determinative, in the sense described in Bond, or to have legal effect. It might be otherwise if it were made in connexion with, or applied to, a referral. Those qualities are also absent from the decision that the holders of state permits do not need to refer action, the subject of the permits, to the Minister.
40 The Minister's decision in the latter respect, and the communication of it in the Guidelines, may have some effect. It is not however a legal effect produced by the Act. Rather the statements may have the effect that procedural fairness must be afforded to permit-holders in some circumstances. Growers holding state permits might argue that they had an expectation, because of the statements, that approval would not be denied on the ground that their actions were seen to have a significant impact on the species. That would not give them a substantive right to a decision in their favour, nor would it operate to prevent the Minister considering the facts of their case. It may however entitle them to put forward a case in the event that the Minister were minded to change his opinion (see Attorney-General (NSW) v Quin (1990) 170 CLR 1, 20; Tasmanian Conservation Trust Inc v Minister for Resources and Gunn Ltd (1995) 55 FCR 516, 549).
41 The Society also relies upon the Minister's actions as conduct. Section 6(1) of the ADJR Act provides that conduct in which a person has engaged, is engaged, or proposes to engage "for the purpose of making a decision to which this Act applies" may be the subject of an order of review.
42 In Bond (at 341-342), Mason CJ held that "conduct" refers to actions taken rather than a decision made and to the conduct of the proceedings. Conduct is essentially procedural in character. Accordingly in Tasmanian Conservation Trust (at 550) Sackville J held that an "in-principle" approval was not conduct contemplated by s 6(1) of the ADJR Act. As his Honour also observed, the notion of conduct does not embrace unreviewable decisions which are steps in the deliberative process.
43 In the present case the Minister's decision about the numbers which might be culled might be viewed as a predetermination of a question posed by the statute, or part of a question. It is not procedural in nature. His communication of that view in the Guidelines does not convert it to conduct. The maintenance of a policy about permit-holders not being required to refer their proposed actions to him, whilst influential on procedures to be undertaken under the Act, is not itself procedural. It stands as the conclusion reached by the Minister because of his opinion about the extent of the impact which permit-holders' actions would have.
44 In my view there is not a decision under the Act, nor is there conduct capable of review under the ADJR Act. The objection to competency must be upheld in these respects.