consideration
29 Although the applicant has identified two decisions for review, the repository of the power to make each decision was said to be the same, namely s 255-5(2) of Schedule 1 to the TAA. It was submitted that each decision was expressly or impliedly authorised by that provision. It may be a matter for debate whether, as the applicant submitted, the decisions were separate and distinct. I refer to that matter further below. Certainly, so far as the objection to competency is concerned, the refusal decision can be in no better position than the recovery decision. The distinction between the two decisions, if there be one, only assumes significance when dealing with the applicant's claimed entitlement under s 13 of the AD(JR) Act to a statement of reasons because, on the applicant's argument, a decision to refuse to refrain from commencing legal action to recover the applicant's tax debts was not a decision in connection with the institution of proceedings in a civil court and, hence, was not excluded from the operation of s 13 by paragraph (f) of Schedule 2 to the AD(JR) Act.
30 The issue that assumed importance for dealing with the objection to competency was not so much whether there was a statutory source of power for the decisions but whether, notwithstanding the power in s 255-5(2), the decisions were nevertheless reviewable under the AD(JR) Act.
31 The decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 illustrates that, having regard to the text, purpose and scope of the AD(JR) Act, the phrase "decision to which this Act applies" gives the AD(JR) Act a relatively limited field of operation. The rights conferred by the AD(JR) Act certainly do not exhaustively cover the field of federal administrative law: Griffith University v Tang (2005) 221 CLR 99 at [32]. Thus, in some circumstances, the AD(JR) Act may provide a more restricted form of judicial review than might otherwise be available: Tang at [3].
32 In Lamb v Moss (1983) 49 ALR 533 at 555-556 a Full Court of this Court attributed a wide meaning to the word "decision" to include any decision of an administrative character. Specifically the Full Court expressed the opinion that the AD(JR) Act imposed no limitation which restricted the class of decision which may be reviewed to decisions which finally determine rights or obligations or which have an ultimate and operative effect.
33 In Bond, however, Mason CJ (with whom Brennan J (at 365) and, in relevant respects, Deane J (at 369) agreed) did not favour an interpretation as broad as that preferred by the Full Court in Lamb. In that regard Mason CJ (at 337-338) identified two essential qualities that a decision must have to be one that is reviewable under the AD(JR) Act.
34 First, such a decision will generally, but not always, be a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. His Honour also accepted that what he described as an "intermediate decision" might also be a reviewable decision. His Honour said (at 337):
… A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.
35 On this issue Toohey and Gaudron JJ (at 377) expressed a similar view. Their Honours said:
… If an enactment requires that a particular finding be made as a condition precedent to the exercise of or refusal to exercise a substantive power, a finding to that effect is readily characterized as a decision "under an enactment". However, it is otherwise with respect to findings which are not themselves required by an enactment but merely bear upon some issue for determination or some issue relevant to the exercise of a discretion. Findings of that nature are not themselves "decisions under an enactment"; they are merely findings on the way to a decision under an enactment.
36 Secondly, Mason CJ said that a decision must be a substantive determination. In this regard his Honour contrasted a substantive determination with a procedural determination which was not reviewable under the AD(JR) Act: see at 337-338.
37 The concept of a substantive determination was elaborated on in Tang when the High Court considered the provisions of s 4(a) of the Judicial Review Act 1991 (Qld) which are in terms that follow the definition of "decision to which this Act applies" in s 3 of the AD(JR) Act. Gummow, Callinan and Heydon JJ at [79] posed the question:
… What is it, in the course of administration, that flows from or arises out of the decision taken so as to give that significance which has merited the legislative conferral of a right of judicial review upon those aggrieved?
38 At [80] their Honours said:
The answer in general terms is the affecting of legal rights and obligations. Do legal rights or duties owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement? To adapt what was said by Lehane J in Lewins, does the decision in question derive from the enactment the capacity to affect legal rights and obligations? Are legal rights and obligations affected not under the general law but by virtue of the statute?
(references to footnotes omitted)
39 Further, at [89] their Honours said:
The determination of whether a decision is "made ... under an enactment" involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be "made ... under an enactment" if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice.
40 The applicant advanced three contentions as to why the challenged decisions were reviewable under the AD(JR) Act. First, it contended that the decisions possessed the characteristics of an "intermediate decision" of the kind referred to by Mason CJ in Bond at 337. The applicant described this as "the rider" to the earlier statement by Mason CJ that the decision generally must be final or operative and determinative. Secondly, it contended that the decisions were final and operative, and had practical legal effect. Thirdly, it contended that the weight of authority favoured the conclusion that the decisions were reviewable under the AD(JR) Act.
41 In my view the decisions do not have the characteristics for which the applicant contends. Moreover, in my view, the weight of authority is clearly against the contention that the challenged decisions are reviewable under the AD(JR) Act. It is convenient to deal with each of the applicant's contentions in turn.