NEAT Domestic Trading Pty Limited v AWB Limited

NEAT Domestic Trading Pty Limited v AWB Limited - [2003] HCA 35 - HCA 2003 case summary — Zoe

[38]

Section 57(7) reflects the reference in par 32 of the Explanatory Memorandum to "an initial period of five years". Of course, the review and report might not result in any alteration of the scheme, but in considering the meaning and effect of s 57, it is material to note that the conduct of AWBI (nominated company B) in the granting or withholding of approvals for the purposes of sub-s (3B) is to be the subject of political review and accountability.
Sub-sections (3A), (3B) and (6) are of direct relevance to this appeal.
The appellant is a domestic and international grain trader. On a number of occasions before 1 July 1999 the appellant was granted permits for the bulk export of wheat. On six occasions between November 1999 and January 2000 the appellant sought the consent of the Wheat Export Authority to the bulk export of durum wheat. In five cases, the proposed destination was Italy; in one case it was Morocco. In each case AWBI declined to give its approval, and the Authority was obliged to withhold consent.
The appellant, being a competitor of AWBI in relation to the export of wheat, complained that AWBI was contravening the Trade Practices Act 1974 (Cth). It was confronted with the problem of s 57(6) of the Act, which refers to s 51(1) of the Trade Practices Act. That section provides that, in determining whether there has been a contravention of the Trade Practices Act of a kind of possible relevance to the present case, anything specifically authorised by legislation must be disregarded. The appellant endeavoured to overcome that obstacle by claiming relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act"), contending that the refusal of AWBI to give approval was a decision of an administrative character under an enactment (Judicial Review Act, s 3(1)), and that it involved an improper exercise of power, being an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the case (Judicial Review Act, ss 5(2)(f) and 6(2)(f)).
The appellant commenced proceedings in the Federal Court. Those proceedings failed at first instance before Mathews J[1], and again on appeal to the Full Court (Heerey, Mansfield and Gyles JJ)[2].
There is some difficulty in relating the conduct of AWBI, and the complaint of the appellant, to the context of administrative law. AWB and AWBI are trading corporations, operated for the benefit of their corporators. However, the Act gives each a statutory role which may affect the interests of members of the public, such as the appellant. A question arises as to the extent to which that role is circumscribed. When a statute confers a discretionary power which is capable of affecting rights or interests, the identity and nature of the repository of the power may be a factor to be taken into account in deciding what are intended to be matters that must necessarily, or might properly, be considered in decision-making or whether it is intended that the power is at large[3].
It is important to note provisions of the corporate constitutions of AWB and AWBI, and to relate them, in turn, to the commercial and regulatory context in which s 57 operates.
Article 3.1(b) of the constitution of AWB is as follows:

[55]

It will be necessary to return to the question whether what is here involved is a decision of an administrative character, being an exercise of a discretionary power, to which those principles apply. Let it be assumed, for the moment, that this is so.
The reference in the appellant's submissions to the merits of its applications for bulk-export consent requires further analysis. The information provided by the appellant to the Wheat Export Authority in support of each application for consent was relatively sparse. It amounted to little more than information that there was a purchaser in a certain country for a certain quantity of durum wheat, which the appellant had available for export. Bearing in mind that the appellant and AWBI were competitors, it may not be surprising that further information was not provided. What, exactly, does it mean to speak of the "merits" of such an application? Presumably, it was self-evident that the proposed transaction would be in the financial interests of the appellant, and its suppliers; if it were otherwise, it would not be proposed. Is that a consideration to which AWBI was bound to pay regard? Section 57 plainly envisaged that AWBI would be, if not the sole, at least the principal, exporter of Australian wheat. It conferred on AWBI what was, in effect, a capacity to veto bulk exports by any potential competitor. This reflected the single desk system of export marketing; a system described in the Explanatory Memorandum as a monopoly. In this context, a reference to "merits" cannot sensibly be a reference to the financial interests of the appellant. The legislation gave AWBI a power to veto any application. That would always be adverse to the interests of an applicant. Where a statute confers a monopoly on X, and then gives Y power to relax the monopoly, but only if X approves, then it is not easy to give practical content to a suggested legislative requirement that X consider on its merits each proposal for a relaxation of X's monopoly. But it can hardly mean that X is required to have regard to the financial interests of its would-be competitor.
In such a context, where there is at least a potential conflict between the interests of the exporter seeking approval and the interests AWBI is required by its constitution to pursue, the concept of the merits of an application for approval must be related to considerations, if any, that AWBI is required or entitled to take into account, or considerations that are extraneous to its decision. It is to the provisions of the Act that one must look for some warrant for concluding that a particular consideration is obligatory, or available, or extraneous[5]. Judicial review is not an invitation to judges to decide what they would consider fair or reasonable if they were given the function conferred upon AWBI. The appellant might genuinely believe that the system itself is unfair. A judge might share that opinion. Nothing follows from that. The question is what, if anything, the Act requires, or permits, or forbids AWBI to take into account in giving effect to its role in the system.
It is possible that, in a given case, an exporter, applying for consent from the Wheat Export Authority, might seek to make out a case to show that the granting of the consent could not possibly have any adverse effect upon the single desk system of marketing, or upon AWBI, or the growers whose interests it represented. Given that AWBI was entitled, indeed bound, to pursue grower interests, an exporter might seek to show that a particular application promoted those interests, or was at least incapable of affecting them adversely, either directly or indirectly. That is not the present case. As noted above, the appellant provided little information in support of each application. It did not present information or argument in support of a change of the single desk policy, or seek to show that the policy was irrelevant to its particular proposals.
It may also be accepted that personal animosity towards an applicant, or a desire to confer a personal benefit upon a particular grower or exporter, would be extraneous considerations; and others may be imagined. But they have nothing to do with the present appeal. The sole complaint is that AWBI adhered to a policy; and that, in its adherence to the policy, it failed to take account, or foreclosed consideration, of matters it was either required or entitled to take into account.
The policy manifested in s 57 itself is not difficult to discern. It is to be understood in the light of the history of wheat marketing, the exigencies of the international market, and the single desk system. Section 57(7) suggests that the policy is open to legislative review, but, in its present form, it involves conferring on AWBI a right to export, and requiring that any other potential bulk exporter must obtain the consent of the Wheat Export Authority, which must, in turn, have the approval of AWBI. The legislation confers upon AWBI a practical monopoly on the bulk export of wheat, save to the extent to which the Authority (which is to issue guidelines) and AWBI (which is not bound by the guidelines, but whose conduct is subject to review and report) are prepared to relax the monopoly.
There is nothing inherently wrong in an administrative decision-maker pursuing a policy, provided the policy is consistent with the statute under which the relevant power is conferred, and provided also that the policy is not, either in its nature or in its application, such as to preclude the decision-maker from taking into account relevant considerations, or such as to involve the decision-maker in taking into account irrelevant considerations. The policy, and its application, must be measured against those requirements, having regard to the matter presented for decision, and the information and arguments, if any, advanced for or against a particular outcome.
Mathews J found that, in withholding approval in respect of the appellant's applications for bulk-export consent, AWBI had determined to pursue a policy that would be maintained "under current market conditions". She described that policy as follows:

[57]

Mathews J considered, and I agree, that there is nothing about such a policy that is inconsistent with the Act, or with the role it assigned to AWB. Furthermore, there was nothing about the particular circumstances of any of the appellant's applications that required re-consideration of the policy, or that rendered the policy irrelevant, or potentially irrelevant, to those applications. The policy was a proper policy, available to AWBI consistently with the legislative scheme, and there was nothing in the circumstances of the case that demonstrated a refusal to entertain the possibility that a particular case might fall outside the policy, or require its re-consideration[6]. No such case was advanced on behalf of the appellant, either to the Wheat Export Authority, or to AWBI, or in this Court. There was nothing contrary to the Act in the adoption by AWBI of a general policy; a policy which so closely reflected the legislative purpose. The complaint that the policy was administered in an unduly inflexible manner was rejected by Mathews J. It is entirely theoretical, no reason having been advanced as to why the policy should have been relaxed in the case of the appellant other than that it would have been in the interests of the appellant, and its suppliers, for that to be done. As Mathews J found, "no material was put before AWBI which could be expected to persuade it to deviate from its policy."
Mathews J was right to reject the appellant's case on what might be termed the administrative law merits. That makes it strictly unnecessary to decide whether the withholding of an approval by AWBI was a decision of an administrative character made under an enactment. I should indicate, however, that my preference is for the view (accepted by Mathews J) that it was. While AWBI is not a statutory authority, it represents and pursues the interests of a large class of primary producers. It holds what amounts, in practical effect, to a virtual or at least potential statutory monopoly in the bulk export of wheat; a monopoly which is seen as being not only in the interests of wheat growers generally, but also in the national interest. To describe it as representing purely private interests is inaccurate. It exercises an effective veto over decisions of the statutory authority established to manage the export monopoly in wheat; or, in legal terms, it has power to withhold approval which is a condition precedent to a decision in favour of an applicant for consent. Its conduct in the exercise of that power is taken outside the purview of the Trade Practices Act.
In Burns v Australian National University[7], Ellicott J said, in relation to the meaning of "administrative" in the context of s 3 of the Judicial Review Act:

[60]

The appeal should be dismissed with costs.
McHUGH, HAYNE AND CALLINAN JJ. Over the years, Australia has had many different marketing schemes for its primary products. Some[8] have been established by State legislation; some[9] have been established by federal legislation. This appeal relates to the federal regulation of some aspects of the export marketing of wheat. The particular questions raised concern the operation of s 57 of the Wheat Marketing Act 1989 (Cth) ("the 1989 Act").
At the times relevant to these proceedings, s 57(1) of the 1989 Act prohibited the export of wheat unless the Wheat Export Authority ("the Authority"), established by the 1989 Act, (a) had given its written consent to the export of the wheat and (b) the export of the wheat was in accordance with the terms of that consent. Sub‑section (1A) of that section provided that this prohibition did not apply to what the Act refers to as "nominated company B": AWB (International) Limited ("AWBI"). AWBI is a company limited by shares, incorporated under the Corporations Law of Victoria. At the times relevant to these proceedings it was a wholly owned subsidiary of AWB Limited ("AWB"), another company limited by shares, also incorporated under the Corporations Law of Victoria. There were two classes of shares in AWB: A Class and B Class. A Class shares could be issued only to "Growers" - persons producing an annual average of at least 331/3 tonnes of wheat per year. Each Grower could hold only one A Class share. The holder of A Class shares had voting rights, and the number of votes depended upon the average annual tonnage of wheat delivered by that shareholder to the AWB Group. Holders of A Class shares were not entitled to dividends. A Class shares were redeemable preference shares. B Class shares were intended to be capable of being traded on the Australian Stock Exchange Ltd and carried the right to participate in dividends. Holders of A Class shares controlled the board of AWB.
The object of AWB, stated in its constituent document, was "to be primarily involved in the business of Grain Trading". This was further defined as the undertaking of grain trading activities and investments with a view, among other things:

[67]

At first instance, the primary judge (Mathews J) dismissed the appellant's proceeding[11]. The primary judge found[12] that "the effective reason" for AWBI's refusal to approve the application for the consents the appellant sought was, in each case, the existence of its policy that "in the current market environment" no bulk‑export consents would be approved. Her Honour further found that AWBI had arrived at this policy because to approve bulk‑export consents would not be consistent with the obligation, imposed on AWBI by its constituent document, to maximise returns to growers who sold wheat into AWBI wheat marketing pools[13]. That being so, her Honour found[14] that AWBI, in making its decisions to refuse approval, did not fail to take account of relevant considerations.
The appellant appealed to the Full Court of the Federal Court. That Court (Heerey, Mansfield and Gyles JJ) dismissed the appeal[15]. Heerey J concluded[16] that AWBI's decisions were "outside the province of administrative law". Because AWBI was a company incorporated under the Corporations Law, engaged in trade and commerce, it "must be free as a matter of commercial judgment to adopt what might be regarded in administrative law terms as an inflexible policy"[17]. There was, in his Honour's view[18], "no breach of any rule or principle of administrative law which had the effect that AWBI was acting outside s 57(3B)" in refusing its approval.
Neither Mansfield J[19] nor Gyles J[20] considered it necessary to decide whether decisions to grant or withhold approval for the purposes of s 57(3B) were decisions of an administrative character made under an enactment, or were beyond the reach of administrative law. Their Honours preferred to rest their conclusion on the proposition that, as a commercial entity, AWBI could lawfully consult only its own interests in deciding whether to grant approval[21].
The appellant contended that, to understand the way in which the 1989 Act's marketing scheme operated, it was necessary to consider not only the scheme of the 1989 Act as a whole, but also the historical background against which the scheme was enacted. It is as well, therefore, to say something about that history.

[78]

AWBI does not owe its existence to the Act; it is a company limited by shares incorporated under the Corporations Law. To a very great extent, its powers, and the powers and obligations of its organs, are regulated by the applicable companies legislation. So, for example, at the time of the events giving rise to this appeal, its board of directors owed duties to its sole shareholder, AWB. The content of those duties was to be found in the Corporations Law of Victoria and the considerable body of judge‑made law affecting directors' duties. The central duty of the board of AWBI was to observe its constitution and to pursue the interests of the company as expressed in that document. As a wholly owned subsidiary of AWB those duties would, no doubt, have required the board of AWBI to pursue the interests of its parent (and thus, its parent's shareholders) to the extent that those interests were compatible with other obligations of AWBI. In fact the interests of the two companies coincided. The constituent documents of both AWB and AWBI required that AWBI seek to maximise returns to those who sold wheat into AWB wheat marketing pools.
If AWBI gave its approval to the Authority giving a bulk‑export consent it may not be entirely clear whether the Authority had a discretion to refuse consent. For present purposes, it is convenient to consider both possible constructions. On one construction of the 1989 Act the Authority would retain no discretion to refuse a consent once AWBI had given its approval in writing. If that were so, it would be evident that AWBI's decision to give, or not give, approval would be determinative. The competing view is that the Authority retained a discretion to refuse a bulk‑export consent, even if AWBI had given its approval to it. On that view AWBI's role might better be described as exercising a power of veto. No matter which construction is correct, it is necessary to recognise that, under s 57 of the 1989 Act, a company incorporated under ordinary companies legislation for the pursuit of commercial purposes is given a role to play in connection with permitting what otherwise is conduct (exporting wheat) forbidden by federal statute on pain of penalty. And the company given this role is itself exempted from the operation of this prohibition.
At the least, then, there is an intersection between the private and the public. A private corporation is given a role in a scheme of public regulation. The parties could point to no other federal legislation in which there was a similar intersection. If processes of privatisation and corporatisation continue, it may be that an intersection of this kind will be encountered more frequently[29]. At its most general this presents the question whether public law remedies may be granted against private bodies. More particularly, do public law remedies lie where AWBI fulfils the role which it plays under the 1989 Act?
We would answer this second, more particular question, "No". That answer depends in important respects upon the particular structure of the legislation in question. It is not to be understood as an answer to the more general question we identified.
There are three related considerations which lead us to give that answer. First, there is the structure of s 57 and the roles which the 1989 Act gives to the two principal actors - the Authority and AWBI. Secondly, there is the "private" character of AWBI as a company incorporated under companies legislation for the pursuit of the objectives stated in its constituent document: here, maximising returns to those who sold wheat through the pool arrangements. Thirdly, it is not possible to impose public law obligations on AWBI while at the same time accommodating pursuit of its private interests.

[79]

Section 57 gives the Authority, not AWBI, the power to give the consent to export without which an offence is committed. It is the Authority's decision to give its consent which is the operative and determinative decision which the 1989 Act requires or authorises[30].
The Authority is created by the 1989 Act and derives its functions and powers entirely from that Act. In that sense it is a creature of the 1989 Act. The Authority may not give consent without AWBI's prior approval in writing. That approval was a condition which must be satisfied before the Authority might give its consent. It was, in that sense, a condition precedent which had to be met before the Authority could lawfully exercise the power which the 1989 Act conferred on it to give its consent to the proposed export[31].
Unlike the Authority, AWBI needed no statutory power to give it capacity to provide an approval in writing. As a company, AWBI had power to create such a document. No doubt the production of such a document was given statutory significance by s 57(3B) but that sub‑section did not, by implication, confer statutory authority on AWBI to make the decision to give its approval or to express that decision in writing. Power, both to make the decision, and to express it in writing, derived from AWBI's incorporation and the applicable companies legislation[32]. Unlike a statutory corporation, or an office holder such as a Minister[33], it was neither necessary nor appropriate to read s 57(3B) as impliedly conferring those powers on AWBI.
On that understanding of s 57(3B) AWBI's determination to approve the Authority's giving consent was not a decision under an enactment for the purposes of the Judicial Review Act. The approval was a condition precedent to the Authority considering whether to give its consent to export.
If the Authority had any discretion about giving a consent once AWBI had given its approval, the Authority would have had to exercise that discretion having regard to the nature, scope and purpose of the power and the context in which it is found[34]. It is those matters which would be relevant for the decision‑maker to take into account. It is in these "public" considerations that the "merits" which the appellant said had not been considered would be found.

[80]

The two other considerations we have mentioned (the "private" character of AWBI and accommodating public law obligations with AWBI's private interests) are conveniently dealt with together. AWBI, not only does not owe its existence to the 1989 Act, it, and its organs, had the various obligations we have mentioned earlier. Chief among those was, and is, the pursuit of its private objectives. So far as its constituent documents and applicable companies law principles are concerned, reference to any wider "public" considerations would be irrelevant.
Because the 1989 Act did not expressly or impliedly require or authorise AWBI to decide whether to approve the issue of a bulk‑export permit, AWBI could not be compelled, by mandamus or otherwise, to decide whether to grant or not grant its approval. It was under no statutory, or other, obligation to consider that question.
It follows that s 57(3B) is not to be read as imposing on AWBI a duty to consider those matters that we have described as "public" considerations when deciding whether or not to grant approval. That is, s 57(3B) is not to be read as requiring AWBI to consider matters of the kind which the Authority should take into account in forming its decision whether to grant its consent. Nor should it be read as shifting to AWBI the obligation to take account of matters derived from the subject‑matter, scope or purpose of the Act which bear upon a decision whether a particular export should be permitted. The sub‑section did not require AWBI to consider those matters to the exclusion of consideration of its own commercial interests; it did not require AWBI to give preference to those matters over its own commercial interests. Section 57(3B) neither modified nor supplanted the obligations which AWBI and its organs had under its constituent documents and applicable companies law principles.
The appellant did not contend, whether in this Court or in the courts below, that AWBI was not entitled to take its own interests into account in deciding whether to give its approval to the Authority's grant of consent. But once it is accepted that AWBI may consider its own commercial interests, a distinction between those interests, and what were said to be the "merits" of an individual application for approval, cannot be drawn. As pointed out earlier, the "merits" of an individual application are, for present purposes, those matters derived from the context of the 1989 Act and the subject‑matter, scope or purpose of the Act which are identified as bearing upon the decision. We have referred to these as "public" considerations.
Under the 1989 Act AWBI could export without consent. It could, indeed it should, have been seeking to maximise returns to those who sold wheat through the pool arrangements. One way of doing that was to remain the sole bulk exporter of wheat. Remaining the sole bulk exporter was consistent with the form of export monopoly preferred in the Explanatory Memorandum to the 1998 Bill - a monopoly managed by the Authority but possessed by AWBI ("the new grower company") pursuant to its "wheat export rights".
If remaining the sole bulk exporter of wheat was a consideration that might legitimately be taken into account by AWBI when deciding whether to give approval to the Authority consenting to bulk export of wheat (and the appellant did not submit to the contrary) it is a consideration which could outweigh any countervailing consideration which an applicant for consent could advance. It could outweigh any countervailing consideration derived from the context of the 1989 Act, or from the nature, scope or purpose of the 1989 Act's provision that AWBI's prior written approval was a necessary condition for the Authority's giving its consent.
That being so, there is no sensible accommodation that could be made between the public and the private considerations which would have had to be taken to account if the 1989 Act were read as obliging AWBI to take account of public considerations.
For these reasons, neither a decision of AWBI not to give approval to a consent to export, nor a failure to consider whether to give that approval, was open to judicial review under the Judicial Review Act or to the grant of relief in the nature of prohibition, certiorari or mandamus.
The appeal should be dismissed with costs.
KIRBY J. In Gerlach v Clifton Bricks Pty Ltd[35], Callinan J and I said:

[84]

Wheat export arrangements: Most of the relevant facts are set out in other reasons[39]. The necessary background includes the history of governmental regulation of the marketing of wheat in and from Australia. That cereal, from earliest colonial times, has been the most important crop grown in (and one of the chief exports from) Australia[40].
Australian durum wheat is a special variety of wheat, mainly grown in northern New South Wales. Its characteristics make it suitable for the production of semolina-based products such as macaroni, spaghetti and vermicelli[41]. It is graded in quality from ADR1 (prime quality grain) to ADR6 and then to ADRF (or ADR Feed) at the lowest end of the quality scale[42]. NEAT Domestic Trading Pty Limited ("NEAT"), the appellant in this Court, has for many years been involved in marketing durum within Australia and overseas. In this regard, it participates in a specialist market.
Before the coming into effect of the present statutory arrangements for the marketing of export wheat, the Australian Wheat Board ("the Board") had control over the wheat export monopoly under the Wheat Marketing Act 1989 (Cth) ("the Act"). Within its sole right to control the export of wheat, the Board had given consent to NEAT on a number of occasions to export large quantities of durum to Libya, Morocco and Turkey (1996), Tunisia and Morocco (1998) and Italy (1999). Such approvals were inferentially to the advantage of NEAT, the wheat growers who dealt with it, as well as the Australian national interest, without adversely affecting the monopoly marketing of wheat exports from Australia by the Board.
The 1998 amending Act: On 1 July 1999 the Wheat Marketing Legislation Amendment Act 1998 (Cth) came into effect. That statute amended the Act to substitute a new scheme of wheat marketing that envisaged a public body, the Wheat Export Authority ("the Authority"), and three companies incorporated under corporations law replacing the Board. The purpose of the restructure was not to alter the wheat export arrangements in a fundamental way. The export monopoly was to be maintained[43]. The aim was to reduce the government's involvement to the regulatory aspects of the monopoly through the Authority, while the responsibility for the marketing and commercial aspects of the scheme was to rest with a private company, owned, at least in part, by growers.
However, as will become apparent, this separation of the regulatory and commercial aspects of the scheme was not complete. AWBI[44], a wholly owned subsidiary of AWB, was the only supplier that did not require the Authority's consent to export wheat from Australia[45]. In key aspects, AWBI remained intimately involved in the regulatory scheme established by the Act. Not only did the Authority have to consult AWBI in the process of evaluating an application for export consent[46], but the "prior approval in writing" of AWBI was required before the Authority could grant such a consent to any other supplier[47].
On 14 July 1999, after the commencement of the legislative amendments and following approval for such export granted by AWBI, the Authority gave consent for a proposed bulk export of wheat to India by a company other than NEAT. However, so far as the evidence disclosed, that was the end of the individual consideration by AWBI of applications for the bulk export of wheat. Thereafter, no approvals whatever for bulk export of wheat were given. On the contrary, a minute to the Board of AWBI, only a week after the above instance of consent, recorded that "[t]he existence of a bulk permit is in direct contravention of AWB's current policy not to issue such permits". There ensued correspondence between AWB and the Authority seeking revocation of the Authority's consent for the proposed export to India. The Authority asserted that the consent could not be revoked. An information paper was prepared for the AWBI Board discussing the case, asserting that the issuance of the "permit" had been "erroneous" and proposing guidelines and protocols to ensure that "it does not happen again".
It is against the background of this dispute within the successor bodies to the Board that NEAT's subsequent applications to continue its specialised export of durum to willing overseas buyers must be understood.
NEAT's applications: Six of NEAT's applications for the bulk export of durum were the subject of these proceedings. The first two of those were made on 4 November 1999. NEAT wrote to the Authority for consent to export quantities of ADR3 respectively to Italy and Morocco. The Authority forwarded the request to AWBI. Awbi refused to give approval and the Authority immediately signified its refusal of consent. There followed two similar requests on 9 December 1999 for the export of ADR Feed and ADR6 to a buyer in Italy. These were rejected by AWBI which again refused to give its approval. A facsimile from AWB to NEAT stated in general terms that "AWB will not be issuing export permits for bulk wheat shipments". In consequence of AWBI's refusal of approval, the Authority refused to give its consent to the proposed export.
The identical outcome ensued with a fifth application by NEAT in January 2000. There were written exchanges evidencing heightened frustration on the part of NEAT over the apparent intransigence of AWB acting on behalf of AWBI. NEAT explained to AWB that its grower clients had been "unable to obtain a satisfactory price from AWB Limited and … want[ed] NEAT to immediately conclude this business". According to the evidence, in the midst of the consideration of this application, AWB's Chairman, Mr Flügge, on 24 January 2000, told a meeting of local durum growers at Gunnedah chaired by the Deputy Prime Minister:

[86]

Mr Flügge later wrote in similar terms to the Deputy Prime Minister stating that AWBI "will not approve the issue of a permit for the bulk export of durum, or any other wheat at this time". He insisted that this was "our responsibility under legislation" (emphasis added). He justified this approach as necessary "to preserve the integrity of the single desk", that is a single market control over the sale of wheat of all types exported from Australia. Putting it bluntly, the searching out of specialist, niche markets for the sale of particular varieties of wheat, to particular countries, for particular uses, at particular times was not open to consideration by AWBI "at this time". To those who wanted to submit otherwise, all that AWB and AWBI would say, in effect, was "Good afternoon", and then "Good-bye".
In this Court, NEAT went in some detail through the circumstances of the fifth application as disclosed in the evidence. It involved a proposal to sell 50,000 tonnes of ADR Feed to a buyer in Italy. As indicated, ADR Feed is at the lowest end of the scale of durum quality. However, apparently, NEAT had found a particular purchaser in Italy willing to accept Australian ADR Feed not for animal consumption but to make pasta for human consumption. The wheat in question was available for sale in what NEAT regarded as outside the ordinary AWBI markets for the sale of ADR Feed. In a letter to the Authority, in support of the fifth application, NEAT pointed out that the wheat in question was "stored on the ground in uncovered stacks" because local silos were full or shut. NEAT could offer a significantly higher price to growers than was available from the domestic company (AWB) for ADR Feed quality wheat. The price differential was about $35 per tonne. However, it required prompt action and segregation of the ADR Feed to meet the buyer's requirements. The letter pointed out that the buyer "currently has US Feed durum offered to it and it will buy US Feed durum unless NEAT can confirm it has obtained a permit for ADR Feed in the very near future". On the face of things, this application therefore presented a particular deal, not in competition with AWBI or other Australian wheat exports to Italy or other Australian exports of ADR Feed. However, as on the previous occasions (save for the one case in July 1999 that was "never to be repeated") AWBI refused to give its approval. The Authority, as it was bound, declined to give its consent to the export bid.
NEAT's final attempt to obtain approval for export of durum was at the end of January 2000. This was a proposed sale of 25,000 tonnes of ADR Feed to Italy. It was essentially a repetition of the previous application, but with a considerably lower tonnage. As with the prior applications, within two days AWBI sent a letter to the Authority withholding approval and, as required, the Authority refused its consent. It was in those circumstances that NEAT commenced its proceedings in the Federal Court.
Before closing this chronicle, it is worth referring to the communications by AWBI informing the Authority of its refusal to approve the export applications. The letters by AWBI refusing NEAT's first five applications were in identical terms, stating as the only reason for refusal:

[94]

The relevant provisions of the Act and of the Trade Practices Act 1974 (Cth) ("the TPA") are set out, or sufficiently referred to, in other reasons[54].
Because NEAT had, by the time the matter was argued in the Full Court (as in this Court), abandoned the application for various remedies under s 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act"), the real question litigated was whether AWBI's actions left it exposed to NEAT's proceeding for breach of s 46 of the TPA[55]. As a defence to the suggested contravention of the TPA, AWB and AWBI invoked s 57(6) of the Act. This refers to s 51(1) of the TPA. That provision exempts anything specified or specifically authorised by the provisions of the Act from founding a contravention of the TPA.
In the Full Court, and by notice of contention in this Court, AWB and AWBI asserted that s 57(6) covered any of their actions pursuant to or broadly referable to the functions specified for them in the Act. However, such an argument cannot succeed, stated so broadly. When the Act refers to "things ... to be regarded as specified ... and specifically authorised by this section" (including "anything that is done by [AWBI] under this section or for the purposes of this section")[56] such references are obviously confined to things done validly; not merely purported to be so done[57]. It follows that the second contention of the respondents also fails.
NEAT argued that AWBI's successive refusals to approve its bulk export applications were not done validly under s 57(6) of the Act or for the purposes of that section. It invoked ss 5(1)(e) and 5(2)(f) of the ADJR Act. Section 5(1)(e) provides that an application for an order of review of a decision pursuant to the ADJR Act can be made where "the making of the decision was an improper exercise of the power conferred … in pursuance of which it was purported to be made". Section 5(2)(f) provides that the reference to an "improper exercise of a power" includes "an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case".
It was in this roundabout way that an important issue of principle was tendered to the Federal Court. It was whether the decisions to withhold approval, made by AWBI, were reviewable under the ADJR Act. If they were, NEAT pressed its argument that the ground of invalidity referred to in s 5(2)(f) of the ADJR Act was established and that, on that basis, the Federal Court should have set aside the purported decisions so as to leave AWBI bereft of the immunity it claimed from the operation of the TPA.

[102]

It was not disputed that NEAT was a "person aggrieved" by AWBI's refusals to approve its applications. Further, there was no challenge to the holding of the primary judge that AWBI's approval determinations were "substantive, final and determinative of the issues falling for consideration" and were therefore to be characterised as "decisions" for the purposes of the ADJR Act[65]. But before this Court, AWBI disputed that such decisions were either to be classified as "administrative", or "made … under an enactment". Different, though related, questions may arise where review of such decisions is sought under the common law.
Before turning to examine the issues in dispute, I pause to make reference to a point that is easy to overlook. The focus of s 5(1) of the ADJR Act is upon a given "decision". It is the "decision" that must be characterised by reference to whether, within s 3(1) of the ADJR Act, it is of "an administrative character" and one made or required to be made "under an enactment". The question is not whether AWBI, as the decision-maker, is a body of a particular character[66], including whether generally speaking it performs its functions as a private corporation conforming to corporations law or otherwise and is committed to maximising its profits. Whilst such features of AWBI may be relevant to the character of particular decisions that it makes, they are not determinative. In a particular case, a statutory scheme may have entrusted decisions of a public, governmental or regulatory character to a private corporation, involving that body, to that extent, in the exercise of public power.
In my view, the primary judge was correct to conclude that a decision made by AWBI for the purposes of s 57(3B) of the Act was of an administrative character[67]. She was also correct to conclude that such a decision was made under an enactment[68]. I shall address these characterisations in turn, although clearly neither is wholly divorced from the other.
The decisions were administrative: In reaching her conclusion about the character of the impugned decisions, the primary judge took into account the width of the expression "administrative" in this context. Given the remedial character of the ADJR Act, a broad criterion was selected to attract that Act's application to a vast range of decisions made in the deployment of federal governmental power[69]. It is obviously inappropriate to construe such a criterion narrowly, and in a way that would remove from the purview of the ADJR Act decisions that might otherwise be reviewable under the common law. That would defeat the purpose of that Act.
The primary judge acknowledged that the concept of an "administrative" decision was not susceptible to a comprehensive and universal definition[70]. In that regard, her Honour[71] referred to the observation by Ellicott J in Burns v Australian National University[72] that administrative decisions include at least those "made in executing or carrying into effect the laws of the Commonwealth". By that criterion, the decision concerning the grant or refusal of "prior approval in writing" of AWBI, as sought by the Authority following NEAT's request, is one made in carrying into effect a public law of the Commonwealth, namely the Act.
Section 57(3A) of the Act makes it a precondition for the Authority to "consult" AWBI before it gives consent for the bulk export of wheat. Without the Authority's written consent, wheat may not lawfully be exported from Australia, under sanction of a substantial penalty[73]. If AWBI does not give approval, the Authority "must not give a bulk-export consent"[74]. AWBI's approval decision is fully integrated into the regulatory scheme created by the statute. AWBI holds, in effect, a veto over the statutory consent of the Authority, which is without doubt a public body. To that extent, a private corporation to a large degree controls the conduct of an independent statutory agency of the Commonwealth made up of officers of the Commonwealth answerable to this Court, amongst other ways, under the Constitution[75]. That constitutionally entrenched power of judicial review is one of the limits on the extent to which corporatisation and privatisation of federal administrative action in Australia may escape the disciplines of judicial scrutiny[76].
Further, the interests involved in and affected by AWBI's decisions to grant or withhold the approval required by the Act are much wider than the private interests of an ordinary corporation. The Act not only grants AWBI the privileged position of a statutory monopoly, but it involves that corporation in the scheme of regulation established. The presence of either, and certainly of both of those elements imposes upon AWBI obligations in the proper exercise of those of its functions that were relevant to the operation of the statutory regulatory scheme, and that had a substantial effect on growers. Some of those growers were not shareholders of AWB and were therefore not represented in the internal deliberations of AWB or AWBI.
In characterising the decisions to grant, or withhold, approval for bulk export of wheat, the relationship between AWBI and the applicant traders (and growers) seeking such approval is therefore also relevant. Grain traders seeking the Authority's, and consequently AWBI's, agreement for the export of wheat, are not in a contractual relationship with AWBI. Further, in a letter to the Authority, Mr David Mailler, the Chairman of the Durum Wheatgrowers Association (NSW), also pointed out that those growers who had not exported in the past or who joined the industry later were not shareholders of AWB. Remedies under the TPA were also foreclosed. As such, the only way that the decisions of AWBI, with their wide and significant impact, could be exposed to legal scrutiny or accountability was by way of administrative review. If such review were unavailable, AWB and AWBI, at least in this respect, would come close to possessing absolute legal power.
In his letter to the Authority, Mr Mailler recorded the disenchantment of many growers with AWBI's conduct and the need for transparency and accountability in the decision-making process. An internal AWB memorandum to Mr Flügge also noted the hostility of durum growers towards the conduct of AWB and AWBI. Apart from any hope that such disenchantment would result in legislative action at some point in the future, for the time being at least, in the absence of administrative review, the growers affected could not even get AWBI to listen to them.
If the consent decision of the Authority is characterised as "administrative" (a proposition which was not in dispute), AWBI's decision to give approval for such an application must surely be characterised in the same way[77]. Both the decision of the Authority and that of AWBI are made pursuant to the same provision in the Act regulating the export monopoly. They each relate to the same applications for bulk export. They have the same purpose and substantive effect. They interact with one another.
In the letters informing NEAT of its refusal of consent for the respective applications, the Authority in each case explained that such refusal followed the withholding of approval by AWBI. Those letters also referred to the rights that NEAT had under the ADJR Act to obtain a "statement of the reasons" and to "challenge the decision". However, even if asserted against the Authority, such rights would be reduced to nought if the same obligations and scrutiny mechanisms under the ADJR Act did not extend to AWBI as well.
It is true that different considerations might guide the Authority and AWBI in reaching their respective decisions. This was, to some extent, the object of converting the Board into different bodies. AWBI, for instance, may legitimately consider the effects of a proposed export on its own commercial interests and the returns of growers who are shareholders of AWB. The Authority may also take into account broader considerations of the public or national interest. However, judicial review, whether under the common law or under the ADJR Act, is not concerned with the decision-maker's conclusions on the merits. It is the legality of such decisions that is examined, rather than the correctness or otherwise of the considerations that guided such conclusions.
To determine the availability of judicial review of decisions at common law, courts have looked to the nature of the power exercised by the body in question. In Forbes v New South Wales Trotting Club Ltd[78], the respondent was a private club with "no statutory power or recognition" but which "controlled trotting in New South Wales by the consent of the government and all of the trotting clubs of that State". Yet for the purposes of its decisions in exercise of a power to warn off persons from courses under its control, it was held that the club was required to observe the rules of natural justice. This was because trotting was a "public activity in which … large numbers of people take part" and "[m]embers of the public have the legitimate expectation" to be admitted upon paying the stated charge[79]. Gibbs J thought that it was relevant that, at least in some situations, "the person warned off might thereby be prevented from carrying on his occupation or performing the duties of his employment"[80]. Accordingly, a private club owner implementing the rules of trotting, such as the respondent in that case, could not exclude members of the public "arbitrarily and capriciously"[81].
Murphy J said expressly that the nature of the power exercised can be public, even if the decision-maker is a private body[82]:

[104]

A similar focus on the nature of the power exercised by a decision-making body, in order to determine whether or not it was subject to judicial review, was adopted by the English Court of Appeal in R v Panel on Take-overs and Mergers, Ex parte Datafin[83]. The decision-making body in that case was the Panel of Take-overs and Mergers. The panel was a non-statutory, unincorporated association, without statutory, or common law prerogative powers. However, it regulated an important part of the financial market in the City of London. Despite the fact that the Panel did not owe its existence to a statute, and that its decisions were not required by, or made pursuant to, a power conferred by a statute, the Court of Appeal held that it was amenable to public law review.
Lloyd LJ expressed the opinion that where the source of the power was a statute or subordinate legislation, the body was subject to judicial review, but not where the source of the power was contractual. However, between those extremes, a court would look more closely to the nature of the power that was exercised[84]. For the members of the Court of Appeal there were a number of features of the Panel and its decisions that brought it within the purview of public law. These included the fact that there had been an "implied devolution of power" to the Panel by the government whereby at least some legislation assumed its existence[85]. Its chairman and deputy chairman were appointed by the Governor of the Bank of England[86]. The Panel was used by the government as one of the central features of the regulation of the financial market[87]. Its decisions had a significant effect on a great number of citizens, many of whom had not consented to its exercise of power[88]. Importantly, although the Panel as such was a "private" body, its functions and decisions could have significant consequences through the Council of the Stock Exchange, which was a public body. Such consequences could include the exclusion or suspension of a listed company from the Stock Exchange[89]. Finally, it was also considered relevant that those affected by the Panel's exercise of power had no other private law remedies for scrutiny or control[90].
It is useful to have regard to these Australian and English decisions in approaching the first issue presented in this appeal. As I remarked in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002[91]:

[106]

Whether or not the criterion of the exercise of "public power" is sufficiently precise to be accepted as the basis for review of decisions under the common law[92], the observations about the nature of the power identified in cases such as Forbes and Datafin are helpful in analysing whether particular decisions are of an "administrative character". When applied to the circumstances of the present appeal, all the criteria identified in those cases point towards the conclusion that AWBI's impugned decisions were made pursuant to governmental or statutory authority. Indeed, the position of AWBI with its statutory veto on the decisions of a public authority is a much stronger instance than that presented by a private trotting club or a private industry panel. It is therefore unsurprising that AWBI's decisions should be classified as "administrative" and rendered subject to public law scrutiny.
The decisions were made under an enactment: In Australian Broadcasting Tribunal v Bond, Mason CJ held that the phrase "decision of an administrative character made … under an enactment", read as a whole, indicated that a decision "which a statute requires or authorizes"[93] or "for which provision is made by or under a statute"[94] is reviewable under the ADJR Act. That approach recognises that the elements of "decision", "administrative character" and "under an enactment" in the definition cannot be construed in isolation. They are inter-related. Each informs the meaning and content of the others.
The primary judge[95] made reference to the decision in Glasson v Parkes Rural Distributions Pty Ltd[96]. In that case this Court held that where a statute was not "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", the decision could not be said to have been made "under an enactment".
During argument, reference was also made to Federal Court decisions interpreting the phrase "decision … made … under an enactment". However, most of the cited exegesis related to corporations or authorities created by statute, and decisions of such bodies to enter contracts[97] or decisions pursuant to existing contracts[98]. As such, they raise different issues. They are not apposite to the circumstances of the present appeal.
Approached in the broad way that the composite phrase in the ADJR Act suggests, it follows that the notion of a "decision … made … under an enactment" is not to be construed narrowly. Whether or not the source of the decision-maker's power to act derives from a statute is not the determinative criterion for the purposes of characterising the impugned decision as reviewable under the ADJR Act. However, while cases such as Forbes or Datafin illustrate that a statutory origin is not essential to invoke the supervisory jurisdiction of a court at common law, for a decision to come within the ADJR Act, it must have some appropriate nexus to a federal enactment, given the specific reference to a decision "made … under an enactment" in s 3(1).
In this regard, the fact that AWBI was a private company, incorporated under corporations law, does not have any immediate legal consequence. While it is true that AWBI as an entity does not owe its existence to the Act, focusing on the terms of the Act it is equally clear that AWBI is not just an ordinary private corporation. AWBI is specifically named in the Act (as "nominated company B")[99]. The Act confers on AWBI the privileged position of being the only person who can export wheat from Australia without approval from the regulating Authority[100]. The Authority had to consult AWBI in performing its key regulatory function[101]. Moreover, the Authority could not give consent for an export by another trader without obtaining AWBI's prior approval[102].
Through the statutory requirement for the prior approval of "nominated company B", AWBI had conferred upon it the power to exercise a key influence on the regulatory process and the conduct of a public authority. The notion that a private corporation, as such, could, by its decision, control the consent-making processes of the Authority (and thereby effectively control the occasions and terms on which other traders would be allowed to participate in its market) is unthinkable without the support of valid legislation. The only way that AWBI's "decision" could take on a legal character affecting the conduct of the Authority, and the economic rights of NEAT (and its growers) and of other Australian growers who wished to export wheat to the world market, is by force of the Act. And then only if the Act gives such authority in clear and unmistakable terms[103].
The submission that AWBI was under no duty to make a decision as envisaged by s 57(3B) of the Act, should also be rejected[104]. AWBI was an identified repository of a power conferred upon it by an Act of the Parliament. As the primary judge found, without a decision by AWBI "a large part of the scheme created under s 57 would become unworkable"[105]. In the Full Court, Gyles J, who otherwise would have withheld relief, expressed a view accepting that s 57(3B) may impose "an enforceable duty upon [AWBI] to give an answer when requested"[106]. I regard it as unthinkable that AWBI could simply ignore, or unduly delay, a consultation that the Authority was obliged by the Act to conduct with it upon receiving an application for consent to the export of wheat. In the result, AWBI did not do either of those things. In each case it acted with a speed made possible by its inflexible and publicly stated approach to all such applications.
It follows that it is the Act that provides for, requires, and gives legal force to, AWBI's "decisions" relevant to NEAT's applications. It is the role performed for the purposes of the Act, and not the corporate structure of AWBI, that determines the character of the "decisions" in question in this appeal. Other decisions made by AWBI may indeed have the character of decisions by a private corporation operating within the private sphere. But, at least in so far as its decisions have the consequences provided for in s 57(3B) of the Act, they are decisions outside the private curtain. They are subject to public scrutiny. They are decisions of an administrative character made under an enactment, as that expression is used in the ADJR Act.
Two further provisions in s 57 of the Act reinforce this conclusion. The first, in s 57(6), is the immunity provided from the operation of another public regulatory law, namely the TPA, for AWBI's decisions "under and for the purposes of" s 57 of the Act[107]. The second is the provision in s 57(7) obliging the Authority, by the end of 2004, to conduct a review and report to the Minister on the conduct of AWBI, including in relation to "the granting or withholding of approvals for the purposes" of s 57(3B).
If all that AWBI were doing, in providing and withholding approval under s 57(3B), were the severable conduct of a private corporation acting under corporations law (and amenable only to corporate disciplines) the last two sub-sections of s 57 would not appear. Those provisions confirm that the "decisions" made by AWBI, as contemplated by s 57(3B), are decisions that assume special public law characteristics.
In light of the foregoing analysis, the conclusion of the primary judge that AWBI's export approval decisions were "expressly or impliedly authorised" by the Act and that s 57(3B) gave legal "force or effect" to such decisions[108], was correct. This appeal does not present some of the more difficult problems that can arise at the intersection of regulation and commerce, and the exercise of public and private power[109].
The errors of the Full Court: The judges in the Full Court adopted a different approach. Heerey J concluded that, in making its decisions to refuse approval to the Authority's consent to NEAT's applications, "AWBI was outside the province of administrative law"[110]. His Honour reached this view on the basis of the suggested legislative intention that AWBI should be "a vigorous, monopolistic participant in the Australian wheat export market"[111].
Mansfield J[112] and Gyles J did not find it necessary to express a concluded view on this point. However, in his reasons, Gyles J expressed the opinion that, in acting as it did in pursuit of its "commercial interests", AWBI was outside the ambit of s 5(2)(f) of the ADJR Act or the common law principle reflected in that provision[113]. In his view, the "reach of administrative law" could extend to decisions made by AWBI for the purposes of s 57(3B) in some circumstances, including where it could be shown that the decision was "not bona fide"[114]. But, on his Honour's approach, the present was not such a case. This seems to suggest that Gyles J considered that the decision could be "administrative" in character and subject to review for some purposes, but not for others. With respect, this is an approach difficult to reconcile with the terms of the ADJR Act.
The approaches adopted by the Full Court are vitiated by a number of errors. First, as I have pointed out, it is the "decision" that needs to be characterised in order to determine if it falls within the scope of the ADJR Act, not its maker. For the purposes of characterising the decision, it is erroneous to focus on the formal character of AWBI as a private corporation, to the exclusion of all the other considerations.
It is also inappropriate to fix upon the "commercial" nature of the approval decisions, without recognising the exceptional character of those decisions and the role that they played in the regulatory scheme. Ordinarily, a private corporation cannot make decisions that have an effective power of veto over the entitlement of competitors, or potential competitors, to participate in a given market. No provision of corporations law gave AWBI such a power. The only source of such power was s 57(3B) of the Act.
To say that an approval decision by AWBI is made in the exercise of its general powers and pursuant to its corporate constitution does not advance the analysis. It frames the question in a way that makes it simpler to answer, but it strips the problem of its inherent complexity[115]. For the board of a private corporation to adopt a resolution restricting the right of a competitor to participate in its market would be a meaningless exercise. Without s 57(3A) of the Act and particularly s 57(3B), any such "decision" by AWBI would be legally impotent. Even if a corporation were able to give force or effect to a resolution to exclude a competitor from its market by wielding its sheer economic power, any such action would be likely to run afoul of the TPA.
Commercial considerations may indeed have guided the decision of AWBI as to whether to give or refuse approval to the Authority's consent to the bulk export of wheat by NEAT. They could properly do so. So much was never denied by NEAT. However, the reason that the Act required such a "decision" on the part of AWBI was for the purposes of the administration of a statutory scheme for a form of export marketing monopoly as enacted by the Federal Parliament. That was also why the Act provided immunity from the application of statutory regimes (such as the TPA) that would otherwise apply to "commercial decisions" of a private corporation.
In so far as private corporations are entrusted under a statute with public functions affecting others, they are thereby rendered liable to administrative law remedies and, depending upon the terms of the legislation, quite possibly to the writs provided by the Constitution[116]. The mere fact that such a decision may be affected, or guided, by considerations of a commercial nature will not take it outside the ambit of such judicial review.
It may be that the statutory conferral of monopoly status on AWBI as a private corporation, in itself (particularly when viewed with the added fact that it was formed from what was once a public body) could impose obligations to observe the norms and values of public law, adapted by analogy, in particular instances of its decision-making[117]. In such circumstances, quite apart from administrative law, it has sometimes been viewed as appropriate to impose duties to the community upon such corporations out of recognition of the particular powers they enjoy[118]. In light of my conclusions about the special statutory position of AWBI, and the fact that the impugned decisions were both required and made effective by the Act, elements sufficient to make them fall within the scope of the ADJR Act, it is unnecessary for me to rely on any broader principle.

[107]

The blanket approach: The determination of the character of the "decision" made by AWBI logically comes first. If AWBI's "decision" is not characterised as falling within the ambit of the ADJR Act, NEAT's endeavour to attack the validity of the "decision" in accordance with that Act would fail at the threshold. No question would then arise as to whether the impugned "decisions" involved an improper exercise of power, and if so, what are the consequences. That was the approach of Heerey J in the Full Court[119]. That approach has now been adopted in the joint reasons in this Court.
But once it is decided, as I think it should, that the "decision" of AWBI to grant, or withhold, approval in accordance with s 57(3B) of the Act is administrative in character and made under the Act, it is my view that the successive decisions to refuse approval to NEAT's applications made pursuant to the policy of blanket refusal were invalid.
Discretionary decisions and policy: It is not unlawful for a repository of statutory power to adopt a general policy for the purposes of dealing with numerous cases or applications, to ensure that the power is consistently exercised by reference to relevant considerations[120]. A policy that structures the discretion and provides guidance for its exercise will usually be lawful and can often be desirable. Additionally, a decision-maker upon whom is reposed a discretion, such as that reposed in AWBI, would also be entitled to adapt and change the policy from time to time[121], so long as it remains within the strictures of the relevant enactment.
However, adopting any method for making a discretionary decision, including the use of a legally permissible policy, does not relieve the decision-maker of the need to consider the individual circumstances of each application that comes before it. The reasons that lie behind this requirement of individual decision-making are clear. If the Parliament had intended a common rule to apply, it would have said so to the extent that that would be constitutionally valid. By reposing a discretionary power, and duty, upon a decision-maker to make individual assessments, the legislature contemplated the possibility that those affected might make representations concerning decisions potentially having important consequences for them. It recognised (as common experience also teaches) that exceptional cases can arise so as to warrant special or particular treatment. Unthinking, inflexible administration can be an instrument of oppression and abuse of power, taking the decision-maker outside the purpose for which the power was granted[122]. The essence of lawful public administration in the exercise of a discretion (as of good decision-making generally) is to keep an open mind concerning the justice, reasonableness and lawfulness in the particular case, even if this sometimes involves a departure from a general policy[123].
AWBI's policy and the Act: AWBI's policy was not one that sought to structure the discretion conferred under the Act, so as to indicate the criteria that would be taken into account, or the circumstances in which it was likely to grant or withhold approval. Rather, it was a policy to refuse all applications for approval. A number of elements in s 57 indicate that the Parliament contemplated that AWBI would engage in individualised rather than "blanket" decision-making for the purposes of giving or withholding its approval.
The Act requires the consent of the Authority for each proposed export of wheat by a trader other than AWBI. It obliges the Authority to consult AWBI. If there were no point in doing so, the Parliament would not have so enacted. It should not be imputed that it set about enshrining in the Act a charade, having the appearance of consultation but no substance because the decision of AWBI was already cut and dried. Similarly, the fact that the approval of AWBI is required in each case of an application to the Authority, as a precondition to the Authority's own consent power, signifies that a decision is contemplated case by case. As well, the obligation to accompany the application with a fee[124], payable to the Authority, is another indication that the Parliament envisaged a real process having a true utility to the applicant; not a futility doomed from the outset to fail. It would be truly malign to design a statutory scheme whereby an applicant would have to pay a fee in order to receive a predetermined, unvarying rejection of the application. That may happen in Kafka's works but not, at least so far, in Australian public administration.
This conclusion is still further reinforced by the statutory obligation of the Authority to issue guidelines about the matters that it would take into account in granting consent. If the Authority's consent is subject to an individualised decision, in accordance with its guidelines, it is hard to imagine that AWBI, having the power of effective veto on such decisions, could act on the basis of a blanket prohibition of granting approval, whatever the circumstances of the individual application, thereby rendering the Authority's consent process superfluous. The requirement of a review and report to the Minister on the conduct of AWBI[125] is yet a further indication that individualised conduct was expected by the Parliament. Had it been intended to condone an unyielding monopoly in favour of AWBI, irrespective of particular circumstances, ordinary principles of construction would require that this be spelt out in the legislation in plain terms[126]. It is not.
The foregoing reasoning explains my conclusion that it was not permissible for AWBI to adopt a blanket policy of refusing approval in exercising its function under s 57(3B) of the Act. The Act sought to establish a "single desk" for the marketing of export wheat, whereby one company, namely AWBI, would hold the right to export wheat from Australia. However, the Parliament left open the possibility of individual traders being allowed to export outside of AWBI's pools. It did not consider that such an approach would undermine the "single desk". That approach simply continued the arrangements that had been in place before the restructure of the Board. It involved a particular accommodation of the "public" and "private" interests involved in exporting wheat from Australia, in turn reflecting the realities of the international markets for that cereal.
The single-desk selling arrangement has been maintained for the export of wheat because of the interventionist policies of the United States of America and the European Union that "can substantially reduce international wheat prices" through "varying forms of domestic support and export subsidy programs"[127]. The Parliament recognised that Australian wheat growers were unable to set or control such international prices. The statutory purpose was to "maximise the net returns to growers", through avoiding situations where Australian wheat traders were competing with other Australian wheat traders[128]. This explains why AWBI was given such a key role in the regulation of exports by other traders (who were otherwise its competitors). That role extended beyond consultation, to a power of effective veto. But the price of such veto power was that AWBI would assess the impact of any proposed export upon its own commercial interests, before such export could be allowed to go ahead.
The blanket policy of refusal adopted by AWBI amounted, in effect, to the rewriting of the legislation by the decision of a private company. One of the options canvassed in the Explanatory Memorandum prepared for the amendment of the Act was to grant the monopoly for all wheat exports to the grower company. However, that option was eventually not chosen[129]. Nor did the Parliament decide to simply legislate the monopoly for all bulk exports to the grower company. If it be needed, that is yet a further indication that the stance taken by AWBI is quite contrary to the purpose of the Parliament.
The provision in the Act for a case by case consideration of applications for proposed bulk export illustrates why it is incorrect to say, as officers of AWB and AWBI asserted on many occasions, that the grant of approvals by AWBI, that may result in bulk export consent from the Authority, would undermine the single-desk selling arrangements. The grant of approval by AWBI in a particular case and its fact-specific circumstances did not establish any precedent for the grant of future approvals - either for the same trader or type of wheat, or for the same destination. The legislation did not provide for approvals that would cover particular growers or traders, periods of time, or export destinations. In fact, AWBI was free, and was required, to reassess the impact of each application on its own activities individually. In a real sense, the general principle would be reinforced by occasional and particular exceptions permitted on their special individual merits as the Act envisaged. It is an old adage that the exception proves the rule.
Where a decision is subject to judicial review, the grounds of review that would be available and appropriate will depend upon the statutory and decision-making context. It follows from the foregoing analysis that the ground of review contained in s 5(2)(f) of the ADJR Act, invoked by NEAT, was applicable to the "decision" of AWBI to grant or withhold approval by reference to the legislative language and purpose[130].

[111]

The departure by AWBI from the Act was not, as the primary judge thought, excused or permitted because of the general character of AWBI as a private corporation; the terms of its corporate constitution; its general commercial purposes; or the adoption of a general policy in favour of the single-desk sale of overseas wheat. The fact that the blanket refusal of approval may have been consistent with the constitutional charter of AWBI and AWB is to a large extent irrelevant. Where the Federal Parliament has validly spoken in the terms that it did in the Act, no instrument or action under the Corporations Law of Victoria could give any foundation for a departure from the obligations imposed by the federal legislation.
Repositories of statutory functions and powers must keep their minds open for the exceptional case[136]. They must not disable themselves from exercising their discretion by adopting a rule "not to hear any application of a particular character by whomsoever made"[137]. At least they must not do so without clear authority of law permitting that course. There was no such clear authority in the present case. The postulated excuses connected with AWBI's general corporate character did not relieve that body of its duty under the Act to consider a request for its approval as the Act contemplated: judging each of NEAT's applications by reference to its peculiar features as they were put before it and by the way each affected (or did not affect) its own commercial interests.
Nor, with respect, was it correct to say that NEAT did not make out a case for relief. The objective and largely uncontested documentary evidence denies that conclusion. For example, in an e-mail sent by NEAT to the Authority in support of its first two applications, involving the export of ADR3 to Italy and Morocco, it was noted that the Italian buyers were "being offered low quality durum from the USA" and that at that point AWB was "not quoting a price for ADR3 to Australian farmers". A number of communications were sent in support of the fifth application for export, also to Italy. The documentation referred to ADR Feed for use by a particular Italian importer for human consumption as pasta. It was pointed out that NEAT's buyer wanted to conclude the deal quickly and did not wish "to buy commingled stocks". Apart from offers from US sellers, in an e-mail to AWBI, NEAT pointed out that while it was waiting for consent, the buyer purchased "two cargoes of low quality Turkish durum" and "another Turkish tender" was due in the following week. The wheat was otherwise exposed to the risk of rotting in Australia unless it was quickly sold. If it were not sold it would be of little or no value to anyone. Clearly what was advanced was a highly fact-specific case. Conscious of AWB and AWBI's interests, NEAT went on to point out that it was simply holding a specific bid, and "has not made any offers to Italy".
In a passage cited earlier in these reasons, the primary judge found that given AWBI's approach to its functions, NEAT's "applications were bound to be rejected in any event" given the unyielding nature of AWBI's policy. Any other individual considerations or arguments were not taken into account. It is apparent that at least some of NEAT's applications were rejected by AWBI without regard to the evidence of their individual merits (including the possible effects on AWBI's commercial interests). Once that conclusion is reached, it is not the role of a supervising court to form its own view about the way in which a repository of power would have assessed the merits of the case put before it, if it had considered the application properly. At least on the face of things, some of the applications did not appear to affect AWB and AWBI's commercial interests. Whether or not AWBI would have reached that conclusion, we cannot know. What we do know is that AWBI was not even prepared to listen.
The assessment of each individual application and the supporting documentation enlivened a role that AWBI was obliged by law to perform. True, its own commercial interests and the returns to the growers who were shareholders of AWB were accorded primacy under the regulatory scheme. But by law, AWBI still had to turn its mind and genuinely consider the effect on those interests of each application that was put before it. It could not shut its ears. To adopt such an approach to making the decisions required, before the Authority could give its own consent, was a small price to be paid for the extensive powers conferred by the Act on AWBI. AWBI refused to pay that price. The primary judge and the Full Court therefore erred in withholding the relief to which the reasoning correctly adopted by the primary judge otherwise inexorably pointed.

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Judgment (174 paragraphs)

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Legislation Cited (17)

Cases Cited (41)