Plaintiff v Defendants

1 Securecorp (Vic) Pty Ltd (Securecorp) has applied for an order under s 8 of the Administrative Law Act 1978 (Vic) (ALA) directing the first and third defendant to provide a statement of reasons for the decision of a delegate of the Secretary of the Department of Government Services (the Secretary of the Department) dated 29 October 2024, that Securecorp not be appointed to the Security Services State Purchase Contract Panel.

2 The Secretary and the State of Victoria oppose Securecorp's application on the basis that Securecorp is not entitled to an order under s 8(4) of the ALA because:

(a) no 'decision' has been made as defined in s 2 of the ALA;

(b) no decision has been made by a 'tribunal' as defined in s 2 of the ALA; and

(c) Securecorp did not make a request to be furnished with a statement of reasons for the alleged 'decision' within the requisite period.

3 While I have found that Securecorp made their request for reasons within time, I have also found that the decision was not a decision by a tribunal within the meaning of the ALA. Accordingly I have decided to dismiss the plaintiff's application for an order that the defendants provide reasons for the decision.

(a) the originating motion filed 13 January 2025 (amended on 15 April 2025);

(b) the summons filed 4 April 2025;

(c) the affidavits of Harm Veerman, director of Securecorp, sworn 13 January 2025 and 15 April 2025 respectively;

(d) the affidavit of Thomas James Carroll, director of Securecorp's solicitors sworn 4 April 2025; and

(e) written submissions filed 7 May 2025.

(a) the affidavit of Craig William Owen Phillips, solicitor for the first and third defendants, sworn 23 April 2025; and

(b) written submissions filed 21 May 2025.

6 Securecorp is in the business of providing security services to government and private clients in Australia. Since 2012 it has provided these services to Victorian Government departments. Most recently it has done so as a member of Victoria's former Security Services State Purchase Contract Panel (the Panel).

7 On 22 December 2023 the Department issued a request for tender (RFT) for appointment of providers to the next iteration of the Panel. The RFT requested tenders for the provision of physical, on-site security services. A successful submission under the RFT would result in the applicant being appointed to the Panel, set to be in place until 31 October 2029.

8 The RFT comprised a number of documents which set out the requirements for any submission, the pre-requisites for any applicant, how the tender process was to be conducted, and the criteria against which submissions would be assessed. During the course of the tender process amended and revised documents were provided to Securecorp. The Master Supply Agreement (also known as the State Purchase Contract (SPC) was Attachment D to the RFT. The RFT contemplated that a successful tenderer would execute an SPC (the Master Supply Agreement), whereupon they would become a member of the Panel. The Master Supply Agreement executed by a successful tenderer was intended to create a standing offer agreement between the State and the supplier for the procurement of security services.

9 On 8 March 2024 Securecorp made its first submission to the Department in response to the RFT.

10 On 16 May 2024 the Department emailed Securecorp stating that its tender had been shortlisted to progress to the next stage of the process.

11 On 22 May 2024 Securecorp emailed the Department to confirm Securecorp's acceptance of the State's updated Master Supply Agreement and to provide Securecorp's Best and Final Offer (BAFO) and the Tenderer Additional Questionnaire.

12 On 29 May 2024 Securecorp emailed the Department to provide an updated BAFO Pricing Sheet as the Department had requested the previous day.

13 Other than the email from the Department on 28 May 2024, the Department did not notify Securecorp of any deficiency in its submissions. Nor did the Department give Securecorp an opportunity to comment or respond to any concerns that the Department may have had in respect of its submissions or to amend or rectify them. The Department did not advise Securecorp or give it any opportunity to respond to any adverse information held by the Department.

14 On 29 October 2024 the Department emailed Alan Witton, Securecorp's national sales manager, attaching a document titled 'Notice of Outcome' which stated that 'Securecorp (Vic) has been unsuccessful in being appointed to the new Security Services State Purchase Contract panel'.

15 On 29 October 2024 Mr Witton emailed the Department requesting an urgent debrief about the Notice of Outcome.

16 On 30 October 2024, Mr Witton again emailed the Department requesting an urgent debrief about the Notice of Outcome.

17 On 31 October 2024 the Department emailed Mr Witton to advise that tenderer debriefs would be conducted after the conclusion of the tender process and that the Department would be in contact in the coming weeks.

18 On 6 November 2024, Mr Witton emailed the Department stating that the process was now closed and again requesting an urgent debrief.

19 The requested debrief occurred on 15 November 2024. The Department advised Securecorp's director, Mr Veerman, that it would not provide further information or reasons for its decision. The Department told Mr Veerman that the decision was final and that the Department would not conduct any further evaluation of Securecorp's tender bid.

20 On 18 November 2024 Securecorp sent a letter of complaint to the Department's Corporate Procurement Team. On the same day Securecorp sent a letter of request to the Department seeking documents relating to the decision under the Freedom of Information Act 1982 (Cth).

21 On 19 November 2024 Securecorp sent a letter to the Minister for Government Services requesting an urgent review of the Department's decision not to appoint Securecorp to the new Panel.

22 On 6 December 2024 Securecorp's solicitor sent a letter to the Department seeking reasons for the decision and assurances that Securecorp's existing SPC contracts would not be re-contracted before Securecorp was given an opportunity to dispute the decision.

23 On 13 December 2024 the Department's solicitor sent a letter to Securecorp. The letter did not give the assurances sought.

24 On 16 December 2024 the Department declined Securecorp's complaint made on 18 November 2024 without providing reasons for the decision.

25 The RFT identified the Department as acting for the State of Victoria in the RFT process. It stated that all Victorian Government departments and other public entitles bound by the Victorian Government Purchasing Board (VGPB) Procurement Policies have access to centralised government contracts, called SPCs, to buy common goods and services. The RFT explained that the SPC for the provision of the services and deliverables would be in the form of a Final Master Supply Agreement. The RFT defined Services to mean 'any services supplied, or to be supplied, by the Supplier under the Final Master Service Agreement'. Deliverables was defined to mean 'any deliverables suppled, or to be supplied, by the Supplier under the Final Master Supply Agreement'. The 'opportunity' identified in the RFT was, 'The State seeks the participation of, and responses from, eligible entities who can provide the Services and/or Deliverables'.

26 The RFT contained a section entitled, Variations to the Master Supply Agreement. That section noted that the State anticipated that all tenderers would substantially agree to the General SPC Terms and the overall structure of the Master Supply Agreement as a condition of being appointed as a supplier to the State. However, the State would consider departures from the General SPC Terms where a tenderer could demonstrate one of three stipulated conditions, including that the General SPC Terms would have a material commercial impact on a tenderer's offer. The section then stated that the State would assess tenderer's requests for variations to the Master Supply Agreement according to certain specified criteria.

27 The RFT defined Tenderer as 'an eligible entity that submits an Offer in response to this RFT'. Offer was defined as 'the document lodged by a Tenderer using the template provided in Part E - Response schedule setting out the Tenderer's proposal and ability to deliver the requirements set out in this RFT'.

28 The RFT required tenderers to submit their Offer by a prescribed process. It provided an indicative timetable for the RFT process. The timetable included steps for the completion of the evaluation of Offers, short-listing and, 'if the State elects to do so' negotiations with a tenderer in respect of Offers. The RFT set an indicative date for the execution of the Final Master Supply Agreement and for the formal notification of unsuccessful tenderers.

29 Part A.9 of the RFT set out the Evaluation Process. The process said the State would have regard to the tenderers compliance with certain criteria, risks identified in the process that might impact on the achievement of the State's RFT objectives and value for money. The RFT stated that nothing in the Evaluation Process section of the RFT restricted or limited the State's rights under section C.1.2, discussed below.

30 Part A.9.8 of the RFT set out the final stage of the RFT process, 'State recommendation and notification of unsuccessful Tenderers'. This section stated that:

The State's evaluation team will prepare a final evaluation report and may submit a recommendation to the relevant State project control board recommending that a Tenderer be appointed to supply the Services and/or Deliverables to the State. All unsuccessful Tenderers will then be informed in writing of the outcome of their Offers and will be offered an optional debriefing. Any debriefs must be requested by Tenderers within three weeks of receipt of the outcome of the Tenderer's Offer.

31 Part B set out the General Specification of the services the subject of the RFT. Section B.3 of the RFT was titled Key Requirements. Under section B.3.1 Signed Final Master Supply Agreement, the RFT stated, 'The Final Master Supply Agreement forms the relationships between the Suppliers and the State.'

32 Part C of the RFT was titled Conditions of participation. Section C.1.1 set out the status of the RFT. It included the following statements:

(a) This RFT is a request for tender to submit an Offer for the provision of the Services and/or Deliverables.

(b) Nothing in this RFT is to be construed, interpreted or relied upon, whether expressly or implied, as an offer capable of acceptance by any person, or as creating any form of contractual, promissory, restitutionary or other rights.

(c) No binding contract (including a process contract) or other understanding (including any form of contractual, promissory, restitutionary or other rights) for the supply of the Services and/or Deliverables will exist between the State and any Tenderer unless and until the State has signed the Final Master Supply Agreement with the Supplier.

33 Section C.1.2 set out the State's rights. By this section the State reserved its right, 'in its absolute discretion at any time' to:

(a) cease to proceed with or suspend the RFT process;

(b) alter any aspect of the RFT or the RFT process (including by issuing one or more addenda);

...

(h) reject or accept any or all Offers in whole or in part;

(i) after concluding a preliminary evaluation, reject any Offer that does not meet the Evaluation Criteria or that, in its opinion, is unacceptable;

34 Section C.3.3 set out the responsibilities of tenderers in providing an Offer, including to ensure that the Offer remained valid and open for acceptance for a minimum of 120 days from the closing time specified in the RFT.

35 Section C.3.9 was titled Status of Offer. This section stated:

Each Offer constitutes an irrevocable offer by the Tenderer to the State to provide the Services and/or Deliverables required under, and otherwise to satisfy the requirements of, the Specifications on the terms and conditions of the Master Supply Agreement, subject to the statement indicating the Tenderer's compliance with the Specifications and the Master Supply Agreement contained in the Offer.

36 Part C.5 of the RFT concerned the State's evaluation of Offers. The State was to evaluate Offers in accordance with the Evaluation Criteria. Section C.5.1 records the State's absolute discretion in relation to the evaluation of an Offer and the conduct of the evaluation process, including whether or not the evaluation process was followed in whole or in part by the State.

37 Section C.5.2 addressed clarification of an Offer. It stated that, 'The State is under no obligation to seek clarification and reserves it right to disregard any clarification that the State considers to be unsolicited or otherwise impermissible in accordance with the RFT Conditions'.

38 Section C.5.3 is headed Shortlisted or successful Tenderer(s). It stated:

(a) Selection as a shortlisted or successful Tenderer does not give rise to a contract (express or implied) between the shortlisted or successful Tenderer and the State for the supply of Services and/or Deliverables. No legal relationship will exist between the State and the shortlisted or successful Tenderer until such time as the State and the successful Tenderer enter into the Final Master Supply Agreement.

(b) The Tenderer is bound by its Offer and, if selected as the successful Tenderer, must enter into the Final Master Supply Agreement on the basis of the Offer without negotiation.

39 Part D of the RFT is titled Master Supply Agreement. Section D.1.1 explained that the Master Supply Agreement was a framework agreement governing the overall strategic relationship between the State and each supplier. The Master Supply Agreement was said to create standing offer agreements between the State and suppliers for the procurement of the Services and/or Deliverables; and to govern the relationship between the parties and not the actual supply of particular Services and/or Deliverables.

40 The parties to the template Master Supply Agreement which was incorporated in the RFT documents were the State of Victoria through the Department and the Supplier.

41 Clause 5.2 of the Master Supply Agreement states:

(i) the Supplier is appointed to the Panel to supply the Services in the Service Categories; and

(ii) the Supplier will remain on the Panel until the expiry or earlier termination of this State Purchase Contract.

(b) The Supplier acknowledges that, from time to time during the Term, the Lead Department may remove Services from within each of the Service Categories in accordance with clause 25.

42 Clause 5.3 stated that the Supplier's appointment to provide the Services is non-exclusive and that appointment of a Supplier to the Panel does not restrict the Department from, at any time, performing the Services itself or engaging any other person to supply services which are the same as the Services.

43 The Master Supply Agreement defined Services to mean the services required to be supplied by the Supplier under this Agreement, including Security Services. The Master Supply Agreement defined Service Categories to mean the categories of security services specified in Part 1 of Schedule 2, which included static guarding, patrolling sites and other services.

The Financial Management Act 1994 (Vic)

44 The Financial Management Act 1994 (Vic) (FMA) was enacted to improve the financial administration of the public sector, better provide for the accountability of the public sector and to provide for annual reporting to Parliament by departments and public sector bodies.[1] Part 7A of the FMA deals with Supply Management. Section 54A establishes the VGPB whose functions include to develop, implement and review policies and procedures relating to the supply of goods and services to departments. The Board is empowered to enter into contracts or arrangements on its own behalf, on behalf of the State or on behalf of departments or specified entities.[2] It may call and award tenders and consider and approve requisitions for the purchase of goods and services by departments or specified entities.[3] The Board may require accountable officers to audit compliance with supply policies.[4]

45 Section 54L of the FMA is titled Supply policies. Subsection 54L(1) allows the Board to prepare, make, amend and revoke 'supply policies' with respect to policies and practices relating to the supply of goods and services to departments and specified entities. Subsection 54L(4) states, 'All accountable officers and other members of staff of departments and specified entities must comply with supply policies'. The FMA does not set out any particular consequences for a failure to comply with a supply policy. The FMA does not in terms authorise decisions about panels.

46 State Supply Policy Three is titled Market analysis and review. Under the heading, Context, the Policy states:

This policy outlines the requirements for market analysis and review. It is mandatory for all Victorian Government departments and any public bodies...that are subject to the supply policies of the Victorian Government Purchasing Board (VGPB) except where supply policies are not mandatory for a public body in accordance with Policy One (Governance).

47 One component of the State Supply Policy Three is collaborative procurement, said by the Policy to involve multiple organisations working together to improve value for money by aggregating demand for commonly procured goods and services. The Policy names SPCs as a form of collaborative procurement.

48 Section 2.1. of State Supply Policy Three is titled Mandatory requirements. Section 2.1.1 sets out requirements for establishing, replacing or varying, reporting on and using a SPC. The requirements include the lead agency consulting with the VGPB on the proposed arrangement, having VGPB and relevant Ministerial approval of an SPC business case and authorisation from the relevant Minister to enter an SPC arrangement on behalf of the Victorian Government. The policy notes that SPCs may be established as a mandatory or non-mandatory arrangement. Organisations are required to use mandatory SPCs and told they should use a non-mandatory SPC if it demonstrates value for money for the organisation. Relevantly, the policy also contains a section called 'SPC exemptions' which sets out how an organisation may apply for an exemption from using a mandatory SPC. The Policy does not set out any consequences for failing to comply with the policy. The Policy does not address decisions about appointments to Panels.

The Public Administration Act 2004 (Vic)

49 The Public Administration Act 2004 (Vic) (PAA) was enacted for the purpose of providing a framework for good governance in the Victorian public sector and in public administration generally in Victoria.[5] Division 5 of Part 4 of the PAA is titled 'Maintaining public sector professionalism and integrity'. Section 61 of the PAA, which falls within Division 5, requires the Victorian Public Sector Commission to prepare and issue codes of conduct based on defined public sector values. The purpose of a code of conduct is 'to promote adherence to public sector values.[6] A code is binding on any public official or class of public officials to whom it applies.[7] A contravention of a code of conduct by a public official who is bound by the code is 'capable of constituting misconduct'.[8]

Code of Conduct for Victorian Public Sector Employees

50 The Victorian Public Sector Commission has issued the Code of Conduct for Victorian Public Sector Employees (Code). Part 1.7 of the Code states that the Code is based on Victorian public sector values and that 'Failure to behave in the ways described in the Code of Conduct may lead to action under relevant performance management or misconduct processes'.

51 Part 3 of the Code is titled 'Demonstrating Integrity'. Clause 3.1 says that public sector employees act honestly in the performance of their duties, and act openly and transparently when making decisions. Clause 3.7 says that public sector employees avoid conflicts of interest wherever possible. Part 4 of the Code is titled 'Demonstrating Impartiality'. It states that public officials should demonstrate impartiality by making decisions and providing advice on merit and without bias; acting fairly by objectively considering all relevant facts and fair criteria; and implementing Government policies and programs equitably. Clause 4.3 states that public sector employees deal with issues consistently, fairly and in a timely manner, using fair criteria, and consider all relevant information in dealing with issues. This clause states, 'Being fair means being just and working within commonly accepted rules'.

Relevant provisions of the Administrative Law Act 1978 (Vic)

52 Section 8(1) of the ALA provides:

1. Reasons for decision to be furnished by tribunal on request by party concerned

(1) A tribunal shall, if requested to do so by any person affected by a decision made or to be made by it, furnish him with a statement of its reasons for the decision.

(2) The request may be made orally or in writing to the tribunal or to any member or officer thereof but must be made either before the giving or notification of the decision or else within thirty days after the decision has come to the knowledge of the person making the request and in any event not later than ninety days after the giving or notification of the decision.

53 Section 8(4) gives this Court the power to order the tribunal to provide reasons if satisfied by the person making the request that a reasonable time has elapsed without a statement of reasons being given.

54 Section 2 of the ALA contains the following relevant definitions:

In this Act unless the context or subject-matter otherwise requires -

decision means a decision operating in law to determine a question affecting the rights of any person or to grant, deny, terminate, suspend or alter a privilege or licence and includes a refusal or failure to perform a duty or to exercise a power to make such a decision;

...

tribunal means a person or body of persons who, in arriving at the decision in question, is or are by law, required, whether by express direction or not, to act in a judicial manner to the extent of observing one of more of the rules of natural justice, but does not include -

(a) a court of law or a tribunal constituted or presided over by a Judge of the Supreme Court; or

(b) a Royal Commission, Board of Inquiry or Formal Review within the meaning of the Inquiries Act 2014.

55 I turn now to the three issues identified by the parties in this proceeding. It is convenient to deal with the first two issues together.

56 Securecorp contended that the decision to refuse Securecorp's application to be appointed to the Panel was a decision made under a statutory authority, namely the FMA and State Supply Policy Three.

57 In the alternative, Securecorp submitted the decision was an exercise of non-statutory executive power, as modified or constrained by the FMA, the PAA, State Supply Policy Three and the Code.

59 The determination of an application for appointment to the Panel, while not directly provided for in the FMA or State Supply Policy Three, is a decision that is necessarily implied by the statutory scheme. It is a statutory prerequisite to the supply of security services to a 'specified entity' of the Victorian Government that the supplier be a member of the panel of suppliers appointed by the Lead Department to deliver services in the security services category. In this instance the Lead Department was the Department.

60 The process for managing the supply of services to the Victorian Government is governed by Part 7A of the FMA. Pursuant to s 54AA of the FMA the Governor in Council, by Order, may declare that an entity or class of entities is a 'specified entity' for the purposes of Part 7A. Under gazetted orders in force at the time of the decision, ten State Government Departments and more than 140 State Agencies were declared to be 'specified entities'.

61 Section 54L of the FMA authorises the VGPB to 'make, amend and revoke instruments, to be known as "supply policies", with respect to policies and practices relating to the supply of goods and services to departments and specified entities and the management and disposal of goods by departments and specified entities'. The VGPB has made a supply policy under s 54L of the FMA known as Policy Three: Market analysis and review, ie, State Supply Policy Three. The combination of State Supply Policy Three and Part 7A of the FMA makes it mandatory for a specified entity to use a mandatory SPC when purchasing services for that organisation, unless an exemption has been sought and granted by the Lead Department. This means that specified entities are prohibited (subject to exemption) from purchasing security services from any entity that is not appointed to the current Panel. The Supply Policy also requires that when a new Security Services SPC comes into force, specified entities must transition to that Contract when the term of any existing supply contract expires.

62 Securecorp submitted that the regulatory regime established by Part 7A of the FMA and the Supply Policy necessitates that a decision-maker acting on behalf of the State must from time to time make a decision about which suppliers are to be included on the Panel, from which specified entities will be permitted to purchase security services. Further, Securecorp argued that Minister for Immigration and Border Protection v SZSSJ (SZSSJ),[9] is good authority for the proposition that the exercise of a statutory power, including a process undertaken as a preliminary process to the exercise of an express statutory power, which is apt to affect the interests of a person, is conditioned on the provision of procedural fairness, unless that presumption is clearly displaced by the statutory scheme. Accordingly, the decision-maker was a person required by law to act in a judicial manner to the extent of observing one or more of the rules of natural justice, so as to bring the decision maker within the meaning of 'tribunal' in s 2 of the ALA.

63 If, however, the decision was not made in the exercise of a statutory power the decision-making process was an exercise of non-statutory executive power, constrained by the FMA, the PAA, State Supply Policy Three and the Code. The Code is binding on all public sector employees, including the decision maker in this case. The decision making process is further constrained by the limits of administrative decision making implied by common law.

64 The scope of a decision of a tribunal under the ALA is not limited to decisions made 'under an enactment'. All that is required is that the decision be a decision 'operating in law' which meets the statutory definition in s 2 of the ALA. Securecorp submitted that decisions made in the exercise of statutory and non-statutory powers are therefore equally amenable to judicial review under the ALA.

65 Securecorp contended that the power to accept or reject an application for appointment to the Panel is distinct from the exercise of the State's power to contract at large. It is an antecedent administrative decision, made under the statutory scheme of the FMA, which constrains the power of State entities in their later exercise of the power to contract.

66 Securecorp submitted that the determination of an application for appointment to the Panel, while not directly provided for in the FMA or the Supply Policy, was a decision necessarily implied by the statutory scheme. Without a decision on the application, the statutory obligation of specified entities to enter into supply contracts only with suppliers who are on the Panel would be devoid of content.

67 The question determined by the decision in question was whether to grant or refuse Securecorp's application to be included on the new Panel. Securecorp argued the decision determining that question was one that operated in law to affect the rights of a person, or one that granted, denied, terminated, suspended or altered a privilege or licence, so as to bring it within the definition of s 2 of the ALA. Securecorp submitted that the decision affected its right to be considered by specified agencies for engagement in new contracts for the supply of security services. This, according to Securecorp, meant that the decision 'operates in law' notwithstanding that inclusion on the Panel did not guarantee a new contract with Securecorp to provide particular security services and notwithstanding that an additional step was required to conclude such a new contract.

68 Securecorp relied on the decision of Gorton J in Trist v Glenelg Shire Council (Trist).[10] Securecorp submitted that in Trist Gorton J addressed this issue by comparing the circumstances that would flow from each possible answer to the question being determined, finding that if the question was answered in one way, the plaintiffs would have a right they would not have if it was answered the other way, and so determined that the question must have affected the plaintiff's rights.

69 In this case, Securecorp submitted, the decision to reject Securecorp's application for appointment to the Panel affected Securecorp's right to be considered by specified entities for engagement in new contracts to supply security services, or to renew existing contracts with Securecorp. The decision affecting that right was a decision that operates in law, notwithstanding that inclusion on the Panel did not guarantee that a new contract would be entered into with Securecorp, and notwithstanding that an additional step was required to conclude such a new contract.

70 Securecorp argued that this case was plainly analogous to Trist and distinctly different to the Court of Appeal's decision in Keasey v Director of Housing (Keasey).[11] In Keasey the Court of Appeal held that a mere decision to commence an application in the Victorian Civil and Administrative Tribunal (VCAT) under the Residential Tenancies Act 1997 (Vic) was not a decision within the meaning of s 2 of the ALA because the application did not affect the plaintiff's rights, but rather set the constraints of the applicant's case that would be determined by VCAT.

The Secretary and State of Victoria's submissions

71 The defendants' submitted that the decision to reject Securecorp's offer was not a 'decision' by a 'tribunal' as those terms are defined in s 2 of the ALA.

72 Counsel for the defendants submitted that what occurred was that the State, not the Secretary or a delegate, invited offers by the RFT and that Securecorp made an offer to contract with the State in the form of the SPC. Under the terms of the RFT, the State was free to accept or reject the offer as it chose. It chose to reject Securecorp's offer. In doing so, the defendants argued, the State exercised its non-statutory, non-prerogative capacity that it has in common with other juristic persons.[12]

73 The Department's letter dated 29 October 2024 advising Securecorp of the unsuccessful outcome of its offer made under the terms of the RFT does not evidence a decision in an administrative law sense. Counsel for the defendants submitted that the scheme of the RFT process should not be construed as the State offering Securecorp anything other than an invitation to treat in anticipation of a possible contractual relationship between the parties. Counsel submitted that the RFT makes clear that the event that would make Securecorp a member of the Panel is entry into the SPC. This was said to be reinforced by the fact that clause 5.2(a) of the SPC that formed part of the RFT document stated that the supplier is appointed to the Panel '[s]ubject to this State Purchase Contract'. As a consequence counsel said it cannot be the case that there is a decision to appoint someone to the Panel that is anterior to the decision to contract or not contract with a tenderer. Further, counsel noted that clause 5.3 of the SPC made clear that a supplier's appointment to provide services was non-exclusive. Appointment to the panel by entry into the SPC by the supplier is not, of itself, a contract to provide the services. Rather counsel characterised it as a standing offer by the supplier to provide the services on certain terms.

74 The defendants' counsel submitted that the rejection of an offer to contract with another person does not 'operate in law' to 'determine a question affecting rights' or to 'deny a privilege'. An act or conduct that does not relevantly affect rights is not reviewable under the ALA, and is not a 'decision' as defined in that Act.[13] A choice not to contract with a person has no legal effect at all.[14] Counsel submitted that Securecorp never had a right to contract with the State to supply security services and noted that, under the terms of the Master Supply Agreement, the State may contract with an entity that is not a panel member.

75 Counsel submitted that the contractual power to enter into an SPC reflects the State's capacity at general law to contract or not contract as a juristic person. Accordingly, the State does not require a statute to confer that power. State Supply Policy Three does not confer the power to contract but merely identifies certain processes that are to be followed before making an SPC. Counsel described the effect of State Supply Policy Three as a 'control on entry', not a control on non-entry by the State into a contract. It does not transform the nature of the State's capacity as a juristic person to contract or not. Counsel drew support for his argument from the decisions of L v State of South Australia[15] and Patole v Child & Adolescent Health Service,[16] discussed below.

76 The defendants' counsel argued that it was doubtful the State Supply Policy Three imposed an enforceable constraint on the power of the State to contract, and that even if it did, it would not mean that the State's power to enter into a contract involved the exercise of a statutory power.

77 The combined operation of s 54L(4) of the FMA and State Supply Policy Three meant that State entities are generally obliged to buy goods and services only from preferred suppliers on terms fixed by the SPC. It does not follow that the State's decision to contract or not contract with an entity on terms established by an SPC is 'necessitated', 'constrained' or 'contemplated' by the FMA.

78 Further, counsel said Securecorp's reliance on Trist was misplaced. Unlike the circumstances in Trist, here the State's rejection of Securecorp's offer did not create an obligation under the FMA or State Supply Policy Three to take any further step, and certainly not an obligation capable of enforcement by Securecorp by a claim for relief in the nature of mandamus or certiorari.

79 The defendants' counsel submitted that there is a distinction between a decision authorised and conditioned by stature, whose legal status and effect is derived from its having been made in conformity with the statute and a decision made in the exercise of a power under the general law of contract, even where legislation may provide the legal context for the decision. In this case, the State's calling for tenders and selection of preferred suppliers were not decision authorised by or conditioned upon the FMA or the Supply Policy.

80 Counsel said Securecorp's characterisation of SZSSJ[17] as authority for the proposition that a preliminary process to the exercise of an express statutory power, which is apt to affect the interests of a person, is presumed to be conditioned by requirements of procedural fairness, irrespective of whether the preliminary process itself involves an exercise of statutory power, was incorrect. In SZSSJ the Minister had made a statutory decision to consider whether to exercise certain powers under the Migration Act 1958 (Cth) in relation to a person, and so the subsequent processes had a statutory foundation. In this case the State's rejection of Securecorp's tender offer was not a decision under or for the purposes of a statute. It followed that SZSSJ does not assist Securecorp.

81 The defendants' counsel submitted that in deciding to reject Securecorp's offer, the State was exercising its non-statutory, non-prerogative capacity to contract, which is not conditioned by a requirement to observe the rules of natural justice. The obligation to afford natural justice does not apply to all legal relationships.[18] It arises only 'in the realm of public law, that is to say, in cases where a person is considering the exercise of power conferred by a statute or by the royal prerogative.[19] The Concept of natural justice has no application to a case where a person is considering the exercise of a mere right of private property.'[20]

82 Counsel disagreed that even if the State's rejection of Securecorp's offer involved the exercise of non-statutory executive power, it was still conditioned by the obligation to afford procedural fairness because of the terms of the PAA and the Code. Counsel submitted the Code does not require the Department's officers to observe the rules of natural justice when deciding whether to accept tender offers. Rather, the Code prescribes the standard of behaviour expected of all Victorian public sector employees and establishes grounds on which disciplinary action can be taken against employees who breach the Code. The Code does not constrain the State's freedom to contract.

83 Under the provisions of the ALA a 'decision' in respect of which a 'tribunal' is required to provide reasons is 'a decision operating in law to determine a question affecting the rights of any person or to grant, deny, terminate, suspend or alter a privilege or licence'.[21] In Keasey,[22] the Court of Appeal noted that the composite phrase involves a number of interlocking and reinforcing aspects:

First, in its usual sense a decision involves something that has a degree of finality about it and in other statutory contexts has been contrasted with conduct leading up to a decision. Secondly, the requirement that the decision 'operate in law' connotes that the decision has some legal force derived from either the common law or statute. That is, its force is located in some legally effective instrument or principle. Thirdly, it must be determinative of a question affecting rights.

84 Securecorp's central argument was that the power to accept or reject an application for appointment to the Panel is distinct from the exercise of the State's power to contract at large. In framing its argument in this way Securecorp appeared to accept that there is a real question whether judicial review is available in relation to a process by which a State government decides with whom and on what conditions it will contract in the future.[23] This is because the making of a contract is the exercise of the personal or private, not public, powers of the executive and it should be permitted to do so without the burden of procedural requirements that attend the exercise of its public powers under statute or the prerogative.[24] In L v South Australia, Kourakis CJ noted that,

Even if the executive's contractual decisions were reviewable in principle it would be surprising if it were bound by a public duty, superimposed on any contractual dealings, to give procedural fairness to a party with whom it was in a commercial relationship, or to take into account that party's, or any third parties', interest in determining the terms and conditions of its contractual offers.[25]

85 Securecorp framed the power to accept or reject its tender response as an antecedent administrative decision, made under the auspices of the statutory scheme of the FMA, which constrains the power of State entities in the later exercise of the power to contract. Securecorp argued that the decision to refuse its application was made under statutory authority, namely the FMA and State Supply Policy Three. In the alternative Securecorp argued the decision was an exercise of non-statutory executive power, as modified or constrained by the FMA, the PAA, State Supply Policy Three and the Code.

86 Keasey involved an appeal from the refusal of an application by a public housing tenant for an order that the Director of Housing provide reasons for the decision to apply to the Victorian Civil and Administrative Tribunal for an order terminating the tenancy. The Court of Appeal in Keasey recognised that a decision that is legally operative and relevantly determinative may be made before an ultimate decision is made.[26] The Court of Appeal cautioned that this fact, however, does not mean that the Court should adopt an overly inclusive approach to the meaning of 'decision' as to do so would be liable to encourage the atomisation of a single decision making process into a series of separate decisions each giving rise to an obligation to provide reasons, potentially disrupting the orderly decision making sequence.[27] The Court noted that it was possible to conceive of a statutory regime in which the making of an application or the giving of a statutory notice may, without more, bring about an alteration of rights or where an anterior decision circumscribes the powers of the ultimate decision maker, or relevantly influences or dictates the final result.[28]

87 In the context of the facts in Keasey, the Court of Appeal found that the applicant had not identified the question that was determined by the Director making the application to VCAT.[29] Nor was the Court satisfied that the making of that application made any change to the tenant's rights under the tenancy agreement, notwithstanding that the application was a precondition to the exercise of the statutory powers of VCAT under the Residential Tenancies Act 1997 (Vic).[30] Accordingly the Court found that the Director's decision to commence the VCAT proceeding was not legally operative to determine any question that materially affected the rights of the tenant.[31]

88 In Trist, Gorton J considered an application by the occupants of houses for an order for the provision of the reasons for Glenelg Shire Council's resolution that the noise emanating from a nearby windfarm did not constitute a nuisance. The issue in Trist was whether the plaintiffs were persons 'affected by a decision'. The term 'person affected' is defined in the ALA to mean a person whose interest (being an interest that is greater than the interest of other members of the public) is or will or may be affected, directly or indirectly, to a substantial degree by a decision made by the tribunal.[32]

89 Gorton J noted that the language in the definition of 'decision' in the ALA picked up the language used by Atkin LJ in R v Electricity Commissioners; Ex parte London Electricity Joint Committee Company (1920) Ltd[33] to describe the circumstances in which a court will exercise its supervisory jurisdiction by way of certiorari.[34] Gorton J proceeded on the basis therefore that the statutory intention was to give a person affected a right to reasons if the decision was one that could be subject to the prerogative writs but not otherwise.[35]

90 In Trist, Gorton J analysed the relevant statutory provisions, finding that they imposed a duty on a Council to remedy, as far as possible, all nuisances in its municipal district and an obligation to investigate a claim of nuisance.[36] The relevant statute was silent on the consequences of a Council finding that a nuisance did not exist but placed obligations on a Council where it found a nuisance to exist, including that it was required to take any action specified in the statute that Council considered appropriate.[37]

91 In considering what right the plaintiffs had that was affected by the Council's decision, Gorton J noted that the definition of 'decision' in the ALA may apply to a decision that, 'had it gone the other way, would have affected legal rights':[38]

Accordingly, in order to determine whether a decision has affected a right, it is necessary to compare the rights of the relevant party before and after the decision, and to consider also the situation that would have arisen had the decision gone the other way. It is no answer to the plaintiff's case that the decision has meant that they are in the same position now that they were in before the decision was made if, had the decision gone the other way, the plaintiffs would have had rights that they would otherwise not have. If a person's rights will differ depending on how a decision-maker answers a question under consideration, then the determination of that question affects that person's rights for the purposes of the definition.

92 Gorton J found that if the Council had decided that a nuisance existed, it would then have been obliged by the terms of the relevant statute to consider what further action to take, and that the statutory obligation on the Council to undertake that consideration was enforceable by the plaintiffs.[39] The Judge found the possibility of a right of enforcement by the plaintiffs was affected by the Council's decision whether or not a nuisance existed.[40]

93 The decision the subject of this application was the decision by the Department not to accept Securecorp's tender for appointment to the Panel of suppliers of security and related services.

94 I accept Securecorp's broad submission that decisions made in the exercise of statutory and non-statutory powers may be amenable to judicial review under the ALA. I cannot accept, however, Securecorp's argument that in rejecting its application for appointment to the Panel the defendants made an antecedent administrative decision under the statutory scheme of the FMA and State Supply Policy Three.

95 Section 54A of the FMA does not require the VGPB to undertake the RFT process. That section does no more than allow the Board to call for and award tenders. While s 54L does require all accountable officers and specified entities to comply with the supply policies it does not authorise decisions about panels. So much was correctly conceded by Securecorp's counsel. Nor does the FMA specify any particular consequences for failing to comply with a supply policy. It does not create any obligation on the defendants, or any rights in Securecorp to enforce any obligation.

96 State Supply Policy Three is not the source of a statutory scheme under which the decision was made. It provides the requirements for establishing an SPC which the Policy notes may be established as mandatory or non-mandatory arrangements. Again, it does not create any obligations on the defendants enforceable by Securecorp.

97 For the reasons put forward by the defendants, there is simply no sound basis for Securecorp's argument that the decision it seeks to review is a decision under a statutory scheme. I also reject the argument that it is a decision necessarily implied by the statutory scheme. There is nothing in the terms of the FMA or State Supply Policy Three 'necessarily implied' any obligations on the defendants in reaching the decision. I accept the defendants' submission that the proper characterisation of the source of the State's power to make the decision is its non-statutory, non-prerogative capacity to contract. There is therefore no need to imply a statutory basis for the State's decision to reject Securecorp's tender.

98 I am unable to accept Securecorp's alternative argument that the decision was made in the exercise of non-statutory power and required the State to observe the rules of natural justice by virtue of the provisions of the PAA and the Code. There is nothing in the language of either the PAA or the Code that requires the defendants to provide procedural fairness when making decisions in the exercise of the State's non-statutory, non-prerogative capacity to contract. In any event, even if the Code imposed such a requirement, it's breach does not give rise to an enforceable right in favour of Securecorp. As is clear from the terms of the Code, a breach of the Code may lead to action under relevant performance management or misconduct processes. That is vastly short of creating an obligation on the defendants to afford Securecorp procedural fairness in their consideration of Securecorp's tender application enforceable by Securecorp.

99 I am also not satisfied that Securecorp's rights were relevantly affected by the decision. At the time of its application under the RFT Securecorp was a member of a panel of security service providers. Its appointment to that panel was limited to the life of that panel, which was due to expire in late 2024. Securecorp's appointment to a prior panel gave it no special rights in relation to its appointment to a successor panel and any contracts made with Securecorp during its time on the Panel were not affected.

100 I accept the defendants' submission that the purpose of inclusion on the Panel was to identify a range of security service providers with whom the State might contract and to define the terms under which those providers may be engaged in future. Membership of the Panel did not guarantee that Securecorp would be contracted in future to provide security services. Conversely, non-membership of the Panel does not exclude Securecorp from being contracted to supply security services because of the existence of the exemption process referred to in State Supply Policy Three and as reflected in the terms of the RFT itself. This is to be contrasted with the position of the plaintiffs in Trist, who had a right, dependent upon the Council's decision whether or not a nuisance existed, to enforce the statutory requirement on the Council to consider how best to deal with the nuisance. In this case, inclusion on the Panel does not give Securecorp any enforceable right to be contracted to supply security services.

101 Nor do I accept Securecorp's argument that the decision affected its right to be considered by specified entities for engagement in new contracts to supply security services or to renew existing contracts. Securecorp did not identify the source of this alleged right. As noted above the statutory context in this case is very different from that operating in Trist. Trist involved clear statutory obligations on the Council that flowed from a decision that a nuisance existed. In this case there are no such statutory obligations on the State to consider all or any particular members of a Panel for future security services contracts.

102 The decision did not operate in law to affect a right of Securecorp, so as to bring it within the definition of s 2 of the ALA. Nor was it a decision of a tribunal as 'tribunal' is defined in the ALA.

Did Securecorp request a statement of reasons within time?

103 Given my finding that the decision not to accept Securecorp's tender application was not a decision under the ALA, it is not strictly necessary for me to consider whether Securecorp's request was made with the statutory time limit.

104 Section 8 of the ALA provides:

Reasons for decision to be furnished by tribunal on request by party concerned

(1) A tribunal shall, if requested to do so by any person affected by a decision made or to be made by it, furnish him with a statement of its reasons for the decision.

(2) The request may be made orally or in writing to the tribunal or to any member or officer thereof but must be made either before the giving or notification of the decision or else within thirty days after the decision has come to the knowledge of the person making the request and in any event not later than ninety days after the giving or notification of the decision.

(3) The statement of reasons shall be in writing and furnished within a reasonable time.

(4) The Supreme Court, upon being satisfied by the person making the request that a reasonable time has elapsed without any such statement of reasons for the decision having been furnished or that the only statement furnished is not adequate to enable a Court to see whether the decision does or does not involve any error of law, may order the tribunal to furnish, within a time specified in the order, a statement or further statement of its reasons and if the order is not complied with the Court, in addition to or in lieu of any order to enforce compliance by the tribunal or any member thereof, may make any such order as might have been made if error of law had appeared on the face of the record.

(5) Notwithstanding anything in this section a tribunal shall not be bound to furnish a statement of reasons, and the Court shall not be bound to order it to do so, where to furnish the reasons would, in the opinion of the Court, be against public policy, or the person making the request is not a person primarily concerned with the decision and to furnish the reasons would, in the opinion of the Court, be against the interests of a person primarily concerned.

(6) Nothing in this section applies to the Victorian Civil and Administrative Tribunal or the Business Licensing Authority.

105 The obligation to provide reasons is conditioned by the person affected making a request to be furnished with a statement of reasons within thirty days of becoming aware of the decision. The Court does not have the power to extend the statutory time limit.[41]

106 Securecorp was informed by letter dated 29 October 2024 from the Security Tender Project Manager of the Department that it had been unsuccessful in being appointed to the new Security Services State Purchase Contract Panel. Accordingly, any request by Securecorp for reasons had to be made by 28 November 2024.

107 On the same day, Securecorp sent an email requesting an urgent debriefing.

108 On 30 October 2024, Securecorp again emailed the Department requesting an urgent debriefing.

109 On 31 October 2024, the Department emailed Securecorp to advise that tenderer debriefs would be conducted after the conclusion of the tender process and that the Department would be in contact in the coming weeks.

110 On 6 November 2024, Securecorp emailed the Department stating that the process was now closed and again requesting an urgent debrief.

111 The requested debrief occurred on 15 November 2024. The Department advised Securecorp's director, Mr Veerman, that it would not provide further information or reasons for its decision. The Department told Mr Veerman that the decision was final and that the Department would not conduct any further evaluation of Securecorp's tender bid.

112 On 18 November 2024 Securecorp sent a letter of complaint to the Department's Corporate Procurement Team. On the same day Securecorp sent a letter of request to the Department seeking documents relating to the Decision under the Freedom of Information Act 1982 (Cth).

113 On 19 November 2024 Securecorp sent a letter to the Minister for Government Services requesting a review of the decision not to include Securecorp on the new Security Services State Purchase Contract Panel. That letter relevantly included a request for an 'urgent and proper debrief to explain the reasons for Securecorp (Vic)'s exclusion from the SPC panel, allowing us to address any concerns that may have influenced the tender evaluation'. Securecorp submitted that this correspondence is plainly a request for reasons.

114 The defendants argued that Securecorp had not requested reasons within the statutory timeframe. There were several aspects to this argument. First the defendants submitted that it was not until 6 December 2024 that Securecorp's solicitors sent a letter requesting a written statement of reasons. Next it was said that the request made on 6 December 2024 was not made to the 'tribunal' as required by s 8(2) of the ALA. Third, it was said that the request was not a request for written reasons and therefore the request was not within a s 8 ALA request for reasons.

115 In my view it is plain from the text of Securecorp's letter of 19 November 2024 that it sought to be furnished with the reasons why Securecorp's tender application had been unsuccessful. There is no statutory requirement for the request for reasons to be specifically couched in terms of a request for 'written reasons'. Under the terms of the statute, the requirement to furnish reasons in writing falls on the tribunal.

116 Section 8(2) allows a request to be made orally or in writing to the tribunal or to any member or officer thereof. While the requirements of s 8(2) are mandatory, in my view these terms tell against an overly narrow interpretation of the request. In this case the lead department for the purposes of the RFT was the Department. The request made on 19 November 2024 was made to the Minister of the Department. I am prepared to accept that the request was made within time. Notwithstanding this finding, Securecorp's application must be dismissed.

117 For the reasons given above I have decided that Securecorp's application for an order that the defendants provide reasons for the decision must be refused.

118 I request the parties confer on the question of costs. If the parties are unable to agree on the terms of any costs order within 7 days of the date of this judgment, the proceeding will be relisted for oral submissions on costs.

[1] FMA s 1.

[2] Ibid s 54C(2).

[5] PAA s 1(a).

[6] PAA s 61(2).

[7] PAA s 61(3).

[8] PAA s 61 (6).

[9] (2016) 259 CLR 180, [74]-[75].

[11] (2022) 66 VR 45, [26]-[28].

[12] Patole v Child & Adolescent Health Service [2024] WASCA 126, [117]-[136] (Vaughan JA); L v State of South Australia (2017) 129 SASR 180, [152]-[153] (Kourakis CJ, Parker and Doyle JJ agreeing).

[13] Byrne v Legal Services Commissioner [2010] VSCA 162; (2010) 27 VR 674, 703-704 [103], [106]-[107] (Emerton AJA with Hansen AJA agreeing).

[14] Szwarc v Mayor and Councillors of the City of Melbourne (Supreme Court of Victoria, Gray J, 1 February 1990) 5.

[15] [2017] 129 SASR 180 (Kourakis CJ, Parker & Doyle JJ) (L v South Australia).

[16] [2024] WASCA 126 (Quinlan CJ, Mitchell & Vaughan JJA) (Patole).

[18] Sydney Training Depot Snapper Island Ltd v Brown (1987) 14 ALD 464, 465 (Wilcox J).

[21] ALA s 2.

[22] Keasey (n 11) [23] (Niall, Emerton and Whelan JJ) (citations omitted).

[23] Victoria v Master Builders' Association [1995] VicRp 47; [1995] 2 VR 121, 137 (per Tadgell J).

[24] L v South Australia (n 15) 221-222 [153] (per Kourakis CJ).

[25] Ibid. See also Patole (n 16) [125] (Vaughan J).

[32] ALA s 2.

[33] [1924] 1 KB 171, 205.

[41] Keller v Bayside City Council [1996] VicRp 23; [1996] 1 VR 356, 381-382 (Batt J).