Held, answering the questions of law and reconstituting the Tribunal to determine the substantive matter of the proceedings:

• The August 2021 decision is not operative. The Tribunal nevertheless has jurisdiction to review it;
• The Tribunal has jurisdiction to conduct a review of the Commission's decision irrespective of whether the decision was vitiated by the type of error about which the applicant complains, namely that the Commission did not engage with its task;
• In relying on the report, the Commissioners either asked themselves the wrong question or failed to engage sufficiently with the actual issues that they were required to engage with. Accordingly, the decision on internal review should be afforded little weight; and
• There is utility in the Tribunal reviewing the decision.

Administrative Tribunals - Procedure - Statutory Powers - Questions of Law

Administrative Review - Essential Services Commission Act 2002 - Review of a determination by the Essential Services Commission - Price determination

South Australian Civil and Administrative Tribunal Act 2013 s 26, s 34, s 37, s 48

Essential Services Commission Act 2002 s 4, s 5, s12, s 13, s 15, s 16, s 17, s 18, s 20, s 25, s 31, s 32

Administrative Appeals Tribunal Act 1975 s 25

GKZ v Department for Child Protection & Anor (No 2) [2022] SACAT 75

Yammani v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 87

Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457, 14 ALD 291

Minister for Immigration and Citizenship v SZJSS [2010] HCA 48, 85 ALJR 306

Dare, Bilney & Ors v Kelaray Pty Ltd, Premier of South Australia [2022] SASC 91

Kikiras v Commissioner of Police, NSW Police Force [2023] NSWCATAD 27

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17

Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107

Brian Lawler Automotive Pty Ltd v The Collector of Customs, New South Wales [1978] AATA 49

Mr B Garnaut, Crown Solicitor's Office, appeared for the respondent

Made under the South Australian Civil and Administrative Tribunal Act 2013 s 26

1. These proceedings concern an application for review under s 32 of the Essential Services Commission Act 2002 (ESC Act). By that provision, the Tribunal is charged with the task of reviewing a price determination made by the Essential Services Commission (the Commission).
2. The Tribunal's review is governed by s 34 of the South Australian Civil and Administrative Tribunal Act 2013 (SACAT Act), which describes a merits review process for the review of administrative decisions made under a variety of State Acts.

1. Robusto Investments Pty Ltd (Robusto) is the applicant in these proceedings and is a "regulated entity" bound by the determination. It supplies drinking water to approximately 170 residential and commercial consumers in the Mt Compass area. The Commission made a "price determination" dated 25 May 2021 within the meaning of the ESC Act, under s 25 of the ESC Act. The price determination set the maximum total revenue that Robusto can recover from its customers and the maximum prices that it is permitted to charge for a particular period. The applicant was dissatisfied with the Commission's determination. It applied to the Commission for a review under s 31 of the ESC Act. Following that review, the Commission varied its price determination on 26 August 2021, but the applicant remained dissatisfied. The applicant commenced the application for review to this Tribunal, challenging the decision and determination of 26 August 2021.
2. In the meantime, the Commission issued a further determination, dated 1 July 2022, for a subsequent period.
3. For clarity, in these reasons the Commission's review which led to the 26 August 2021 determination will be referred to as "the internal review" to distinguish it from the review that is the subject of these proceedings in the Tribunal. However, the ESC Act does not use the language "internal review".
4. The Tribunal was constituted by Member Bean (presiding) and Ms Shaw Rungie, an assessor appointed to a panel formed under s 32(2) of the ESC Act. This Tribunal convened a hearing in the proceedings between 15 and 17 August 2022.
5. At the hearing, the Tribunal heard evidence from Mr Houston, who authored a report upon which the Commission relied in the making of its internal review decision. Following receipt of that evidence and the Tribunal's decision in GKZ v DCP,[1] the Tribunal raised with the parties the question of whether there were any problems with the validity of the decision under review. The applicant subsequently filed submissions on 29 September 2022 contending that the decision under review should be set aside on the basis the Commission had not discharged its statutory function to review the original price determination.
6. On 20 October 2022 at a directions hearing, the parties made submissions on how the matter was to proceed following the identification of questions of law. On 16 November 2022, I reconstituted the Tribunal to preside with Member Bean to hear and determine preliminary issues. The issues for the Tribunal as reconstituted were posed as follows:
   1. Whether the decision the subject of the application was validly made and, if not, whether the Tribunal has jurisdiction to determine a review of that decision, or the preceding primary decision;
   2. Whether (by virtue of the 2022 determination) the decision under review is operative or spent; and, if spent:

(i) whether the Tribunal has jurisdiction to determine a review of that decision; and, if so,

(ii) whether there is utility in the Tribunal reviewing the decision.

1. The parties were advised that, upon the preliminary issues being determined and if the matter was then to proceed, it was anticipated that the Tribunal would be re-constituted to reflect its original membership of Member Bean and Ms Shaw Rungie, for the consideration of evidence and the disposition of the substantive issues.
2. The Tribunal as re-constituted heard argument on 17 January 2023.
3. In summary, the applicant's arguments were as follows:
   • The Commission did not undertake the review as contemplated by the legislation. It neither delegated the decision nor made the decision itself in the manner required by the ESC Act;
   • Rather, the Commission relied upon, and adopted, the content of a report by an external consultant and failed to engage in an intellectual process as required to make the decision itself;
   • Because no review occurred, the decision and determination of 26 August 2021 are of no legal effect;
   • The Tribunal should remit the matter to the Commission to conduct the review;
   • Alternatively, the effect of the above is that the Commission's earlier determination of 25 May 2021 is operative and, having failed to effectively review it, the Commission is deemed to have confirmed that determination;
   • The Tribunal should treat the proceedings as a review of the determination of 25 May 2021;
   • Subject to validity, the determinations of 25 May 2021 and 26 August 2021 remain open to and appropriate for review by the Tribunal notwithstanding that the period they covered has ended and a different decision now operates.
4. The Commission's arguments, in summary, were as follows:
   • The Commission's decision of 26 August 2021 was made by the Commission in accordance with its statutory obligations, resulting in a valid decision;
   • In particular, the Commission engaged with the relevant issues and made a decision on them;
   • If the decision of 26 August 2021 were legally invalid, the determination of 25 May 2021 is revived and is deemed to have been confirmed and the Commission does not oppose an amendment to the review by the Tribunal so as to enable a review of that determination to be conducted by the Tribunal, noting that there is little difference between the May and August determinations;
   • Even though there was a subsequent determination in 2022, the decision of 26 August 2021 may be reviewed and should be reviewed as the outcomes are relevant to the Commission's ongoing role in price determinations for the applicant and other affected entities.

1. In order to determine whether the Commission failed to properly perform its function of conducting a review, it is necessary to understand what the Commission was required to do. That exercise is undertaken by a consideration of the statutory scheme.

1. The decision-maker, being the Commission, is a body corporate established by the ESC Act and has all of the powers of a natural person together with the powers conferred by or under the ESC Act or another Act.[2] The Commission is constituted of a Commissioner appointed by the Governor as Chair and such additional full-time or part-time Commissioners as the Governor appoints.[3] The Tribunal was informed that the Commission is currently constituted by four members, one of whom is appointed as the Chairperson.
2. Qualification for appointment attaches "because of the person's knowledge of, or experience in, one or more of the fields of industry, commerce, economics, law or public administration".[4] Commissioners' appointments are for terms and on conditions determined by the Governor.
3. The Commission conducts its business in meetings convened by the Chairperson, and decides matters by majority decision making with a quorum being a majority of the office-holding commissioners.[5] The Chair has a casting vote in the event it is required and the Commission may otherwise regulate its own procedure.
4. Relevantly, the Commission may employ staff[6] and does so. It may engage consultants,[7] and did so in this process. It may establish advisory committees to provide advice on specified aspects of the Commission's functions.[8] It does not appear that the Commission did so in this process. The Commission may also "delegate functions or powers to a Commissioner or any person or body of persons that is, in the Commission's opinion, competent to perform or exercise the relevant functions or powers".[9] It appears that the Commission did not seek to exercise the power of delegation in relation to the creation of the May 2021 price determination or the conduct of the internal review which led to the August 2021 determination.
5. The Commission's functions are described in s 5:

5 - Functions > > The Commission has the following functions:

(a) to regulate prices and perform licensing and other functions under relevant industry regulation Acts;

(b) to monitor and enforce compliance with and promote improvement in standards and conditions of service and supply under relevant industry regulation Acts;

(c) to make, monitor the operation of, and review from time to time, codes and rules relating to the conduct or operations of a regulated industry or regulated entities;

(d) to provide and require consumer consultation processes in regulated industries and to assist consumers and others with information and other services;

(e) to advise the Minister on matters relating to the economic regulation of regulated industries, including reliability issues and service standards;

(f) to advise the Minister on any matter referred by the Minister;

(g) to administer this Act;

(h) to perform functions assigned to the Commission under this or any other Act;

(i) in appropriate cases, to prosecute offences against this Act or a relevant industry regulation Act.

1. These proceedings concern the function of price regulation. A price determination is made in accordance with the scheme established by ss 25-27 inclusive. Section 25 provides:

25 - Price regulation > > (1) The Commission may make determinations regulating prices, conditions relating to prices and price-fixing factors for goods and services in a regulated industry. > > (2) The Commission may only make a price determination if authorised to do so by a relevant industry regulation Act or by regulation under this Act. > > (3) A price determination may regulate prices, conditions relating to prices or price-fixing factors in a regulated industry in any manner the Commission considers appropriate, including - > > (a) fixing a price or the rate of increase or decrease in a price; > > (b) fixing a maximum price or maximum rate of increase or minimum rate of decrease in a maximum price; > > (c) fixing an average price for specified goods or services or an average rate of increase or decrease in an average price; > > (d) specifying pricing policies or principles; > > (e) specifying an amount determined by reference to a general price index, the cost of production, a rate of return on assets employed or any other specified factor; > > (f) specifying an amount determined by reference to quantity, location, period or other specified factor relevant to the supply of goods or services; > > (g) fixing a maximum average revenue, or maximum rate of increase or minimum rate of decrease in maximum average revenue, in relation to specified goods or services; > > (h) monitoring the price levels of specified goods and services. > > (4) In making a price determination, the Commission must (in addition to having regard to the general factors specified in Part 2) have regard to - > > (a) the particular circumstances of the regulated industry and the goods and services for which the determination is being made; > > (b) the costs of making, producing or supplying the goods or services; > > (c) the costs of complying with laws or regulatory requirements; > > (d) the return on assets in the regulated industry; > > (e) any relevant interstate and international benchmarks for prices, costs and return on assets in comparable industries; > > (f) the financial implications of the determination; > > (g) any factors specified by a relevant industry regulation Act or by regulation under this Act; > > (h) any other factors that the Commission considers relevant. > > (5) In making a price determination under this section, the Commission must ensure that - > > (a) wherever possible the costs of regulation do not exceed the benefits; and > > (b) the decision takes into account and clearly articulates any trade-off between costs and service standards. > > (6) Subsections (3), (4) and (5) have effect in relation to a regulated industry subject to the provisions of the relevant industry regulation Act for that industry. > > (7) In this section - > > price includes a price range. > > (6) A price determination takes effect on the date on which notice of its making is published in the Gazette or a later date of commencement specified in the determination. > > (7) A price determination has effect until it is revoked or until an expiry date specified in the determination. > > (8) A price determination may be varied or revoked by subsequent determination.

2. A draft determination must be sent to various parties, including the regulated entities to which the determination is proposed to apply. In this case, the only regulated entity was the applicant. The draft is also required to be provided to any person who made a submission to the inquiry to which the determination relates, and make it available to the public.[10]
3. Once fixed, it is an offence for a regulated entity to contravene a price determination.[11]
4. The applicant asserts that the development of the price determination in question took the Commission approximately four years to develop.

1. In May 2021, the Commission issued a price determination that was the culmination of various targeted and public consultations and enquiries made and undertaken by the Commission's staff.[12] The seven-page determination contains, amongst other things, a prohibition on the applicant exceeding the specified (in dollars) maximum revenue control, a prohibition on exceeding specified maximum supply charges and tier 1, 2 and 3 charges, and an obligation to use a specified formula.
2. Whilst the specific components of the determination are at the heart of the substantive dispute, they do not require further elaboration for the purposes of answering the questions that the Tribunal is answering in this decision.

1. The applicant was dissatisfied with the price determination. Its application for internal review was governed by s 31 which provides:

31 - Review by Commission > > (1) An application may be made to the Commission - > > (a) by the Minister, or by a regulated entity to which the determination applies, for a review of a price determination; or > > (b) by a person of whom a requirement has been made by written notice under Part 5 for a review of the decision of the Commission to make that requirement; or > > (c) by a person who has been given written notice under Part 5 of the proposed disclosure of information that the person claimed to be confidential information for a review of the decision of the Commission to disclose the information. > > (2) An application for a review must - > > (a) be in writing; and > > (b) set out the price determination or part of the price determination, or the decision, to which the application relates; and > > (c) set out in detail the grounds on which the applicant seeks review and the decision sought on the review; and > > (d) be accompanied by any information that the applicant considers should be taken into account by the Commission on the review; and > > (e) be lodged with the Commission within 20 working days after the price determination is published or within 10 working days after receipt of the written notice referred to in subsection (1) (as the case requires). > > (3) If an application is made for a review of a price determination - > > (a) the Commission must give a copy of the application to each other person who could also have applied for review of the determination; and > > (b) invite each such person to join as a party to the review and make submissions on the matter the subject of the review, within 20 working days after receiving a copy of the application, and in a manner specified by the Commission. > > (4) The Commission may stay the operation of the price determination or decision to which the application relates. > > (5) If a price determination is stayed, the Commission must cause notice of the stay of the determination - > > (a) to be given to the Minister, the industry Minister and to each regulated entity to which the determination applies; and > > (b) to be published in the Gazette. > > (6) A review must be decided - > > (a) in the case of a review of a price determination - within 10 weeks of the application being lodged with the Commission; and > > (b) in the case of a review of a decision of the Commission under Part 5 - within 6 weeks of the application being lodged with the Commission. > > (7) If a review is not decided within the relevant period, the Commission is to be taken to have confirmed the price determination or decision. > > (8) After considering the application, the Commission may confirm, vary or substitute the price determination or decision. > > (9) The Commission must give the applicant and any other person who joins as a party to the review written notice of the Commission's decision, and the reasons for the decision, on the review. > > (10) If the Commission decides on a review of a price determination to vary or substitute the determination, the Commission must vary or substitute the determination by a further determination in accordance with Part 3 but that further determination may not be made the subject of an application for a review under this section.

2. The applicant's grounds for internal review were set out in a 21-page document containing the applicant's complaints about the process and outcome, dated 23 June 2021.[13] It asserted that the Commission had failed to properly assess the factual bases of its March 2017 application for a pricing determination, and had failed to properly apply the National Water Initiative Pricing Principles (NWIPP). In particular, the applicant argued that:
   • The Commission should not have extended the ambit of the determination to include a non-residential customer;
   • The pricing submissions that it put forward complied with the 2013-17 regulatory determination and the NWIPP and should have been relied upon;
   • The Commission failed to put appropriate weight on Robusto's evidence as to the value of the asset base and an appropriate return on capital;
   • The Commission reached erroneous conclusions as to the financing that Robusto could be expected to secure;
   • The Commission's reasons contained errors in the treatment of the regulated asset base;
   • Insufficient consideration was given to the contents of the infrastructure condition report provided by Robusto, and excessive reliance was placed upon an alternative report;
   • Its operating costs should be accepted as efficient and reasonable and should be used as the basis for determining a maximum revenue cap for recovery; and
   • The Ernst & Young advice as to the return on assess ought to have been relied upon.
3. As a result of these alleged deficiencies or errors, the applicant contended that there should have been, on internal review, an interim variation of the determination addressing the issue of the inclusion of the non-residential customer and a variation of the determination to increase the maximum revenue control figure for the period of the determination and a variation to increase the maximum supply and consumption charges in amounts specified in the application.

1. The Commission engaged economists HoustonKemp to assist in the internal review process. It appears that it may have done so in deference to the applicant's request that those Commission staff involved in the making of the original decision not be involved in the provision of recommendations to the Commissioners as to the internal review. Though it is immaterial to central aspects of this decision, that deference was, in the Tribunal's view, misplaced in that it appears to the Tribunal that the involvement of Commission staff in the provision of advice on the internal review is unlikely to have vitiated the Commission's decision.
2. In close reliance upon a report produced by HoustonKemp, the Commission affirmed much of its determination of 21 May 2021, but decided to vary the determination by altering the maximum revenue control for drinking water retail services. This resulted in changes to the quarterly charges and each of the tier charges. In accordance with s 31(1) of the ESC Act, the Commission issued a further determination reflecting the variation on 26 August 2021, with a statement of reasons.
3. For the purposes of this decision, it need only be noted that the variation entailed a rejection of much of the applicant's argument.

1. The applicant remained dissatisfied with the varied determination and filed an application for review in the Tribunal, under s 32 of the ESC Act. That section provides that a person dissatisfied with a price determination or decision confirmed, varied or substituted on internal review may apply to the Tribunal, and that the review is governed by s 34 of the SACAT Act.

1. The Tribunal's review is governed by s 32 of the ESC Act and s 34 of the SACAT Act. The conferral of jurisdiction occurs by s 32 of the ESC Act, which provides:

32 - Review by Tribunal > > (1) The applicant for a review by the Commission under section 31, or any other party to the review who made submissions on the review, who is dissatisfied with the price determination or decision as confirmed, varied or substituted by the Commission on the review may apply to the Tribunal for a review of the determination or decision under section 34 of the South Australian Civil and Administrative Tribunal Act 2013. > > (2) For the purposes of proceedings before the Tribunal under this section, a panel of assessors must be established under section 22 of the South Australian Civil and Administrative Tribunal Act 2013 consisting of persons with knowledge of, or experience in, a regulated industry or the fields of commerce or economics. > > (2a) In any proceedings under this section, the Tribunal may, if the President of the Tribunal so determines, sit with 1 or more assessors. > > (3) An application for review by the Tribunal must be made to the Tribunal - > > (a) within 10 working days after receipt of the written notice of the decision of the Commission on the review; or > > (b) if the Commission failed to make a decision on the review within the allowed period, within 10 working days after the end of that period, > > (or within such longer period as the Tribunal may allow). > > (4) If an application for review by the Tribunal is made under this section, any other party to the review by the Commission who made submissions on the review must be given notice of the application for review and may apply to be joined as a party to the review by the Tribunal. > > (5) If a price determination is stayed by the Commission or the Tribunal, the Commission or the Tribunal must cause notice of the stay of the determination - > > (a) to be given to the Minister, the industry Minister and to each regulated entity to which the determination applies; and > > (b) to be published in the Gazette. > > (6) Section 37(1)(b) and (c)(i) of the South Australian Civil and Administrative Tribunal Act 2013 do not apply to a review by the Tribunal under this section.

34 - Decisions within review jurisdiction > > (1) If the matter that a relevant Act gives the Tribunal jurisdiction to deal with is a matter that expressly or necessarily involves a review of a decision (a reviewable decision), the matter comes within the Tribunal's review jurisdiction. > > (2) For the purposes of subsection (1) (and the other sections of this Division), and subject to the provisions of a relevant Act, a reviewable decision is -

(a) a decision made by the Crown or an agency or instrumentality of the Crown; or

(b) a decision made by a prescribed person or body; or

(c) a prescribed decision or class of decision,

but does not include a decision made by a person or body or a decision, or class of decision, excluded by the regulations.

(2a) For the purposes of this Act -

(a) unless paragraph (b) applies - the decision‑maker for a reviewable decision is the person or body that made or is taken to have made the reviewable decision;

(b) the rules may provide -

(i) that the decision‑maker for a reviewable decision will, instead of being the person or body under paragraph (a), be a person or body that is assigned by the rules as being a suitable entity to act as the decision‑maker for the purposes of this Act (or specified provisions of this Act); or

(ii) that a reference to the decision‑maker for a reviewable decision in this Act (or specified provisions of this Act) will be taken to include a reference to a person or body that is designated by the rules as being a suitable entity to act jointly with the person or body under paragraph (a) for the purposes of this Act (or specified provisions of this Act),

and rules made under this paragraph will then have effect in accordance with their terms.

(3) Subject to subsections (4), (5) and (6), the Tribunal will, in exercising its review jurisdiction, examine the decision of the decision‑maker by way of rehearing.

(4) On a rehearing, the Tribunal must reach the correct or preferable decision but in doing so must have regard to, and give appropriate weight to, the decision of the original decision‑maker.

(5) A procedure on a rehearing will include -

(a) an examination of the evidence or material before the decision‑maker (unless any such evidence or material is to be excluded under another provision of this Act or under any other law); and

(b) a consideration of any further evidence or material that the Tribunal decides, in the circumstances of the particular case, to admit for the purposes of rehearing the matter.

(6) In exercising its review jurisdiction, the Tribunal is to deal with a matter in accordance with this Act and the relevant Act.

(7) Furthermore, the relevant Act may modify the operation of this Act in relation to a matter that comes within the Tribunal's review jurisdiction.

1. Section 37 provides that on a review the Tribunal may affirm or vary the decision under review or set it aside and substitute its own decision or send the matter back to the decision-maker for reconsideration.[14]
2. The effect of these provisions together is to describe a particular species of merits review that requires the Tribunal, amongst other things, to determine the weight to be attributed to the decision under review in the process of reaching the correct or preferable decision.
3. The function of attributing weight to the earlier decision is informed by the questions raised in this ruling on particular aspects of the proceedings. If that process is vitiated by error, it may follow that the weight to be attributed to the Commission's decision is reduced and the question arises as to whether the Tribunal's jurisdiction has been invoked at all.
4. It was during the first substantive hearing before the Tribunal and in particular after evidence was given by Mr Houston in relation to his report, that questions about the Commission's process on its internal review arose.
5. In order to answer the first question concerning the validity of the decision and its effect on jurisdiction, it is necessary to examine what occurred in more detail.

1. An affidavit of Jacquelyn Gail Norman sworn on 8 October 2022 sets out the Commission's account of how the internal review was conducted. Ms Norman deposes to the following events, which will for the purposes of this ruling be assumed to be established.
2. The Commissioners decided that the staff who were involved in the preparation of the determination of 25 May 2021 should not advise on the internal review.[15] They agreed that an external consultant should be engaged.[16] They agreed that Greg Houston should be engaged through his company, HoustonKemp Economists.
3. An agreement dated 30 June 2021 was entered into between the Commission and HoustonKemp Economists. The agreement was for the consultant to "undertake an independent review of the [the Commission's] regulatory determination that applies to Robusto Investments... made ... on 25 May 2021." It continued:

The Consultant's review of the merits of the determination must provide advice to the Principal [the Commission] on whether or not the determination... should be varied, substituted, or remain the same. If the Consultant's advice recommends a variation to the Principal, the advice must include the particulars of both the recommended variation and the resulting price and/or revenue amounts.[17]

4. These statements seem to contemplate two actions by HoustonKemp. First, Mr Houston would conduct a review of the earlier determination. Then he would advise the Commission as to the action the Commission should take.
5. Mr Houston prepared a draft report which was provided to the Commissioners on 5 August 2021 to be considered at the Commission's meeting on 11 August 2021.[18] The minutes of that meeting record the Commission as having "reviewed and discussed the draft report by HoustonKemp, and requested that HoustonKemp update the report to provide further details regarding certain matters".[19]
6. On 13 August 2021, HoustonKemp provided a revised report to the Commissioners via 'Diligent', a board management software platform used by the Commission to provide Commissioners with documents. The platform enables each Commissioner to view and comment on uploaded documents, and interact with each other's comments in an online conversation.[20] The provision of the revised draft was to facilitate the Commission making an internal review decision out-of-session on 16 August 2021.[21]
7. There were comments on the report by two Commissioners. One Commissioner's comments suggested three corrections of a grammatical nature.[22] Another Commissioner made a general comment of support and queried the effect of a proposed redaction on the readability of that section of the report.[23]
8. The Commission issued a decision and Statement of Reasons attaching the HoustonKemp report dated 26 August 2021[24] and published a subsequent determination in the Gazette that day.
9. The out-of-session decision was then ratified by the Commission in a meeting on 28 September 2021 and the ratification was recorded in the minutes of that meeting.[25]

The applicant's complaint that the Commission did not make a decision

1. The applicant complains that the evidence discloses that, although there was no purported delegation of the function of conducting a review, to the extent that the applicant's submissions were considered, that consideration was undertaken by the consultant and not the Commissioners. The applicant submits that the Commissioners' input was confined to minor edits of the HoustonKemp report and that the Commissioners otherwise adopted the content of the report without bringing their own active intellectual engagement to the task. In those circumstances, it was argued that the Commission had not, in fact, made a decision on the internal review in the sense contemplated by the ESC Act. The applicant submitted that what occurred was effectively a delegation of the function to HoustonKemp without any formal instrument of delegation in place.
2. The respondent contends that the Commission intended to make the decision on internal review itself and did so. It turned its collective mind to the relevant issues before making a decision on internal review and varying the original determination. The respondent maintained that there was no delegation of the task to the consultant, but rather a use of the consultant's work to inform its own decision.

What is required of a decision-maker to make the decision?

1. The Commission's statutory duty on internal review is expressed in s 31 of the ESC Act as an obligation to consider the application and then confirm, vary or substitute the earlier decision. The meaning of "consider" has often been judicially analysed in the context of a Ministerial decision to make a decision in respect of a visa application under Commonwealth law. [26] The task of consideration as reposed in an administrative decision-maker was described by Gummow J in Khan v Minister for Immigration and Ethnic Affairs[27] as being to "give proper, genuine and realistic consideration to the merits of the case...". This was subsequently endorsed by the High Court in Minister for Immigration and Citizenship v SZJSS.[28] The formula has since also been applied to the task as given to decision-makers under State laws. [29]
2. It is appropriate to refer briefly to the High Court's remarks about a decision-maker's obligations in considering an applicant's submissions, in Plaintiff M1/2021 v Minister for Home Affairs.[30] In that case, the High Court considered, on a case stated, what was encompassed by the phrase "another reason". The Minister had declined to revoke a cancellation of the plaintiff's visa in circumstances in which the plaintiff did not pass a character test (having been convicted of a serious offence) but made representations that another reason existed to justify the revocation, namely the plaintiff's representation that he would be subject to torture on his return to South Sudan. In the course of its analysis, the High Court considered the Minister's obligations with respect to the treatment of the plaintiff's representations. The High Court followed a line of authority to the effect that the decision-maker was required to "read, identify, understand and evaluate" the representations.[31] The decision-maker is required to engage with the representations within the bounds of rationality and reasonableness.[32] In the context of judicial review by a court, the description of the court's obligation to be one of analysing the original decision-maker's activity for evidence of "active intellectual process" or "proper, genuine and realistic consideration" is liable to place the court at risk of conducting a merits review rather than a more limited judicial review.[33] Of course, a merits review (of some type) was in fact what the Commission was required to undertake in respect of its earlier decision, and what this Tribunal is required to undertake in respect of the Commission's decision. The warnings issued by the High Court are not directed at the task that the Tribunal is required to undertake.
3. Both parties made submissions concerning the application of the formula requiring "proper, genuine and realistic consideration" in Carrascalao v Minister for Immigration and Border Protection.[34] That case concerned two applicants, each of whom had had the cancellation of their visas set aside by the Full Court of the Federal Court. Within four hours of the Court's decisions, the Minister made fresh visa cancellation decisions based on new briefs from the Department. The cancellations related to character tests. The fresh cancellation decisions were challenged on the ground that the Minister had failed to give proper, genuine and realistic consideration of the merits of their cases.
4. The Court considered the obligation on a decision-maker to "consider" the matter and affirmed the characterisation of that task as one that entailed an "active intellectual process".[35]
5. The Court saw no bar to the achievement of that task in the receipt of "accurate and sufficiently comprehensive summaries of information prepared by his staff or departmental officers".[36] The Court also noted that the particular statutory context informed the duty,[37] but that it was necessary to avoid scrutiny of the decision-maker's reasons in a manner that is "attuned to error".[38]
6. Counsel for the applicant submitted that the evidence disclosed that the Commissioners had not engaged in an active intellectual process with respect to the grounds of review or the evidence submitted by the applicant. It was complained that the affidavit material disclosed an exchange between the Commissioners that was limited to minor editorial detail, and did not disclose any debate about the issues.
7. Counsel for the respondent pointed to the fact that the Commissioner's had, merely weeks before, approved the original determination and could be understood to have a deep and thorough knowledge of the material, making it unsurprising that the communications between them on the online platform regarding the second iteration of the report did not disclose a close examination of the issues as would be expected if they were engaging with them for the first time. However, the fact that a variation was made demonstrated engagement, and it was evident from the wording of the decision that the Commission made the decision itself.
8. Heeding the Federal Court's observation of the significance of the statutory context, the Tribunal observes that the Commission's power to delegate is significant. Whilst it was not exercised here, its presence is consistent with the Commission not being required to bring a discretion to bear on the decision, or knowledge or opinion residing peculiarly in the Commission, as might be said to follow from the reposing of a non-delegable power in a Minister a component of which entails consideration of, for example, the national interest.
9. The fact that the Commission was entitled to delegate the decision lends weight to the proposition that its obligation is to be understood as being one in relation to which reliance on the views or summaries of others is within the proper bounds of the Commission's decision-making process.
10. Assessment of whether an "active intellectual process" occurred is different as between an individual and a body corporate. It might perhaps be expected that any exchanges between members of the body corporate provide greater opportunity to disclose such a process. However, the risk of being attuned to error is greater in relation to the process undertaken by a group. Much of the intellectual process in an individual is opaque except as it is revealed in the written reasons. A group decision-making body is not to be assessed by more stringent criteria than an individual. Just as an individual's inelegant draft does not derogate from a well-reasoned decision, a group decision-maker's exchanges in deliberations are not evidence of a defective decision, with the exception of evidence of actual bias which is not germane to this application. The Tribunal does not place great store on the depth or otherwise of the debate as evidenced on Diligent, other than to note that it does not positively establish active engagement by the Commissioners with the issues before them.
11. As observed by the Court in Carrascalao, the decision-maker's engagement with the issues must be understood in the light of their existing understanding of relevant background information.[39] The engagement by the Commissioners is therefore to be understood against several significant features of the decision-making process that might be recognised as differing from other decisions in relation to which the formula is applied.
12. The first is that the decision and determination are technical and factually dense. The determination is reached by the application of legislative formulae and economic principles to a range of data. "Consideration" in this context cannot be understood to be a straightforward or brief undertaking.
13. However, the second significant matter that distinguishes the task of "consideration" in the context of the internal review is that it is, for these commissioners, a re-consideration of much of the material. A significant factor in the assessment of what might be expected of the Commission in its decision-making is the fact that the decision with which it was required to engage was in the nature of a review of its own, relatively recently made, earlier decision. What is entailed in consideration to achieve an "active intellectual process" and the giving of "proper, genuine and realistic consideration to the merits of the case" is to be assessed against a background in which the Commissioners had, some three months earlier, made the original determination that they were now being asked to review. There was no submission put to the Tribunal that the Commissioners had not previously engaged with the issues in a way that was consistent with their statutory duty. Against this background, the force of the complaint that the Commissioners merely adopted the Consultant's report and otherwise engaged only to the extent of making editorial changes, is diminished.
14. Having said that, as will become apparent, we have ultimately concluded that the consultant engaged by the Commission did not properly understand the task to be undertaken by the Commission and, as a consequence, the report completed by the consultant (which was adopted by the Commissioners verbatim), addressed itself to the wrong questions. It has not escaped our notice that, if the Commissioners did examine the consultant's report critically in order to give proper, genuine and realistic consideration to the merits of the case, it is surprising that they misunderstood their task in precisely the same way the consultant did, and were content to adopt "word for word" the language used by the consultant to describe that misunderstanding.
15. There remains a possibility in our minds that the Commissioners in fact relied so heavily on the consultant's report that they did not engage with the issues to the extent required of them. However, as we will proceed to explain, it has not ultimately been necessary for us to resolve this question.

1. In any event, the Tribunal considers that the Commission's adoption of the report raises a question separate to whether the Commission's engagement with the issues was sufficient.
2. The evidence supports a finding that the Commission made a strong and clear adoption of the consultant's process, the reasoning of report and its conclusions.[40] Given the heavy reliance on the report and the reasoning within, the Commission's decision must be assessed by reference to the content of the report and its conclusions.
3. The consultancy agreement with HoustonKemp specified, at attachment 5, the work to be undertaken by the consultant. It details:[41]

The Principal is engaging the Consultant to undertake an independent review of the Principal's regulatory determination that applies to Robusto Investments Pty Ltd (Robusto), made by the Principal on 25 May 2021. > > ... > > The Consultant's review of the merits of the determination must provide advice to the Principal on whether or not the determination applying to Robusto Investments Pty Ltd should be varied, substituted, or remain the same... > > ... > > The Consultant's advice on the review must be provided to the Principal in the form of a written report.

4. The letter of engagement is clear that the Consultant's role was to advise the Commission. There is no description, however, of the nature of the internal review task or of the significance of the fact that the Commission had already reached a conclusion which was being challenged on the basis of material that the applicant was advancing, and that the task of the Commission is to determine whether, based on that material, the decision should be confirmed, varied or set aside and substituted with a new decision. The significance of this lies in the fact that the Consultant's conclusions are not couched in the language appropriate to the Commission's task. The Consultant did not provide advice to the Commission as to whether, having regard to the submission and further evidence provided by Robusto, it was appropriate to vary the determination.
5. Rather, the Tribunal concludes that the task and question posed by the Consultant was to review the original decision broadly and give an opinion on whether the Commission had acted reasonably in reaching the conclusion that it did, as evidenced by the following:

We find the Commission's approach to valuing Robusto's opening asset base to be reasonable.[42] > > ... > > We find the Commission's approach to the roll forward of the RAB to be reasonable, because...[43] > > ... > > We find the Commission's approach and conclusion in relation to an appropriate return on capital allowance to be reasonable, and not warranting adjustment.[44]

6. Throughout the report, the consultant demonstrates an approach of applying its expertise to an assessment of whether the Commission has adequately considered all of the factors relevant to the making of the determination, and whether the Commission's conclusions met its statutory obligations and withstood analysis by reference to accounting principles and approaches taken by other regulators. For example,

In conducting our review of the reasonableness of the Commission's final determination, we have considered whether it is likely to promote the principles and objectives set out in the WI Act and ESC Act, and the NWI pricing principles.

7. The consultant also appeared to consider that the task it was to perform entailed excluding consideration of new information provided by the applicant. The report said:

We note that Robusto provided a range of further information by way of support for its request for review, including minor changes to its proposed opex allowance and new information on asset lives. We have not considered this new information when assessing the reasonableness of the Commission's determination, since this further information was not available at the time the Commission made its determination.[45]

8. Whilst the report considered the Commission's determination by reference to the applicant's submissions, they were the submissions made prior to the determination, and not those made on review.
9. The Tribunal's view however is that the Commission was required to consider the submissions made by the applicant on the internal review and decide whether, in light of those submissions and any further evidence, its determination required variation or substitution with a new determination. It is apparent from the report that this was not the approach taken by the consultant.
10. In its conclusion, the report stated:

We have been asked to consider whether the Commission's final determination was reasonable.[46] > > ... > > We have assessed the reasonableness of the Commission's:

• Approach to setting Robusto's revenue requirement (including opex, return of capital and return of capital);
• Decision to include non-residential customers in its determination and approach to setting prices for residential customers, and
• Its decision not to approve Robusto's claims of amortised losses.[47]

1. Given that the Commission adopted the report and its reasons, the Consultant's approach must be understood to have been adopted by the Commission except to the extent that the Commission has expressly disavowed it.
2. The task to which the Commission addressed itself is also illuminated by the comments exchanged between the Commissioners in the lead up to the making of the decision. These were recorded on the 'Diligent' software as annotations to the revised draft report. The Diligent entries are annexed to Ms Norman's affidavit. They reveal that there were some editorial corrections that Commissioners wished to have made to improve the readability of the report, and some queries as to how prices had been set or the period they covered. One Commissioner, Ms Williams, commented:

I have flicked through the body of this redrafted report, and read the conclusions in detail. > > I support our final determination being written to take this report into account, and accept the HK revision. I am glad that HK did the extra work, and said their proposed revised efficient cost for bad debt etc was material. When I see it affects consumer prices by more than 5 per cent, I agree. ...[48]

3. That comment is consistent with a view that the Commission's review is separate from the consultant's report, and leaves open the possibility that what the Commission understood the task to be was not necessarily synonymous with the description of the task in the consultant's report. However, another Commissioner, Mr Swift, made the comment on the draft Statement of Reasons that:

This does not clearly state that Houston Kemp's review confirmed 95% of our work was reasonable. It jumps straight to the bit we are changing, that does not read well to me. > > ie should we say: Houston Kemp found that: the Commission has followed a thorough and comprehensive process to reach its final decision" ...[49]

4. This comment tends to support the view that the internal review was understood, by Commissioner Swift, to entail a review of the original decision in terms of its reasonableness as opposed to the making of a fresh decision taking into account new material.
5. However, as stated earlier in these reasons, the comments of individual commissioners should not be elevated to the Commission's decision or its reasons. In the Commission's Statement of Reasons dated 26 August 2021 the Commissioners state that their decision was to:
   1. ... confirm that price determination for the reasons set out in the HoustonKemp report... dated 16 August 2021, which, after careful consideration, the Commission accepts and adopts as its own reasons for its decision on review, in conjunction with this overarching decision document (together, the Statement of Reasons), and
   2. For the reasons set out in the Statement of reasons, vary that price determination as follows:

(a) The prudent and efficient operating cost allowance for bad debt, mediation and dispute resolution expenses made within the overall revenue allowance is varied from $15,000 ... to $625 ... > > (b) Consequentially, the maximum revenue that Robusto Investments can recover from residential customers and Mount Compass Sand and Loam is varied... > > (c) Consequentially, prices set under the price determination are varied as follows ...

3. Make a subsequent determination under Part 3 of the Essential Services Commission Act 2002 ...[50]

1. The Statement of Reasons contains a section titled 'Conduct of the review', which relevantly describes how HoustonKemp came to be brought on as a consultant, and how its report was treated in the process of decision-making:

3.5 The Commission's role on the review is to consider, in light of the issues raised by Robusto Investments in its review application and in the context of the overall statutory scheme, whether or not the price determination made by the Commission should be confirmed, varied or substituted. In that regard, while the Commission gave careful consideration to the specific matters raised by Robusto Investments in its application, it considered the determination in its entirety. > > 3.6 As part of its review application, Robusto Investments noted that s 31 of the ESC Act requires the Commission to review its own determination. Robusto Investments requested confirmation that different personnel (within the Commission or external to it) would assist and advise the Commission in its conduct of the review process. > > 3.7 The Commission agreed that, rather than relying on its own staff, it would engage an independent economic consultant, HoustonKemp, to advise it on the matters relating to the review in the place of its staff and advised Robusto Investments of that fact. ... > > 3.8 In doing so, the Commission put in place measures to ensure that its staff were not in any way involved in the consideration of the merits of the matters raised on review nor in providing advice to the Commission; it only relied on its staff to the extent necessary to give effect to administrative arrangements (for example, recording the proceedings of Commission meetings and facilitating communications between the Commission and HoustonKemp). > > 3.9 HoustonKemp provided written advice to the Commission (HoustonKemp report), a copy of which is published alongside this decision document. The Commission has carefully considered that advice, and the reasons contained within it, and adopts the HoustonKemp report, in conjunction with this overarching decision document, as its Statement of Reasons.[51] (Emphasis added)

2. The above describes a process of the Commission seeking advice from HoustonKemp regarding the internal review, which it considered in making a decision that was clearly its own. However, the decision that was its own was also clearly the decision of the consultant. In effect, the Commission adopted in its entirety the decision of the Consultant, and the consultant's reasons for that decision.
3. The task of the Commission on internal review was to consider the submissions and information advanced by Robusto to determine their effect on the original decision. If those submissions and information demonstrated no error in or basis for changing the original decision then, absent any other reason that occurred to the Commission that suggested that its own earlier decision was wrong or could be improved, it would confirm the decision. If, on the other and, the consideration led to the conclusion that the earlier decision and determination was in some way defective or a different decision was preferable, it would vary or substitute the determination with another.
4. The Tribunal considers that the Commission adopted as its own reasons for its decision an approach that did not ask the correct question. As we have already alluded to, having not asked the correct question, doubt attends whether the conclusions reached by the consultant and adopted by the Commission meet the Commission's obligation to 'consider the application'. The internal review process did not entail answering whether the Commission's approach in its original decision was reasonable. Rather, it entailed considering, informed by the original material and any new material advanced in the application, whether the original decision should be confirmed, varied or substituted.

What flows from the Tribunal's conclusion that the Commission's internal review was vitiated by error?

1. Despite the questions raised by the Tribunal as requiring answers, for the following reasons it is neither necessary nor desirable to reach a conclusion as to whether the Commission's decision was invalid; it is sufficient for the Tribunal to form a view as to the weight that should be attributed to that earlier decision.

1. The first step in that reasoning is the proposition is that, even if the Tribunal were to find that the Commission's decision was invalid, the Tribunal would nevertheless have jurisdiction to determine the matter. Therefore, invalidity is not determinative of the Tribunal proceeding with its review.
2. Consistent with Brian Lawler Automotive Pty Ltd v The Collector of Customs, New South Wales,[52] the Tribunal should be understood to enjoy jurisdiction to fulfil its function irrespective of whether the original decision was validly made or not.
3. In Lawler, President Brennan (as he then was), constituting the Administrative Appeals Tribunal, was required to review a purported decision by the Collector of Customs which purported to revoke a warehouse licence that the applicant relied upon for the store of dutiable goods at particular premises. The Collector was the delegated issuer of the licence and it was not in dispute that the applicant held a valid licence. The purported revocation was undertaken on the basis that the applicant was not a fit and proper person to hold a licence. On review, the applicant challenged the Collector's power to revoke. After conducting an analysis of the statutory scheme, the President concluded that the Collector lacked the power to revoke and the purported decision of the Collector had "neither legal foundation nor the legal consequences intended". Brennan P proceeded to observe of the AAT that, "This Tribunal does not exercise judicial power; it exercises the non-judicial power conferred upon it by its constituting statute."[53]
4. His Honour then posed himself the following questions:[54]

... first, is a decision made without statutory power amenable to review by the Tribunal? And second, what order may the Tribunal make to give effect to the view that the decision to revoke was made without statutory power?

5. The Tribunal observed that its powers authorised it to affirm, vary or set aside the decision under review and to make a substituted decision. In that conferral of power to make a substituted decision, Brennan P discerned a flexible power in the same terms as the original decision-maker. The Tribunal proceeded to consider whether, if the original decision was made without power, the Tribunal could be said to have jurisdiction over it.
6. Brennan P observed that the Tribunal's power derived from s 25(1) of the Administrative Appeals Tribunal Act 1975 which confers jurisdiction on the AAT "for review of decisions made in the exercise of powers conferred by [another] enactment" and construed the function of review to operate where the decision was made in the exercise or purported exercise of power. The President said,

Part of the Tribunal's function in securing sound administration consists in confining the administrator to the powers conferred upon him and to the lawful mode of exercising those powers; and the effectiveness of the Tribunal's function would be grievously weakened if it were impotent to check excesses of power. > > Yet a literal construction of the phrase "made in the exercise of powers conferred by an enactment" in s 25(1) would exclude the availability of the Tribunal's remedies from those decisions or parts of decisions which a court would hold to be outside the decision-maker's powers. It is manifestly inconvenient to deny the Tribunal's remedies to correct an error affecting an administrative decision merely because the error would lead a court, if the matter were litigated, to hold that the decision was invalid. > > When an enactment confers a power, and defines expressly a condition of its exercise (whether as a condition precedent to the power being available for exercise or as a condition governing the manner in which the power is to be exercised), an attempt to exercise the power without fulfilling or observing the condition falls outside the power conferred. Equally, the conditions implicit in the grant of a statutory power conditions which the general law defines according to the terms of the statute and the nature of the power must be fulfilled and observed, else an attempt to exercise the power will fall outside it (see per Barwick CJ in Salemi v Minister for Immigration and Ethnic Affairs (No.2) [1977] HCA 26; (1977) 14 ALR 1 at p4). > > If a literal construction of s25(1) were adopted, the non-fulfilment or non-observance of the conditions governing the valid exercise of powers would go without correction by the Tribunal. Further, its remedies would be excluded if the decision-maker took irrelevant considerations into account in exercising a discretion or used his discretion to thwart or run counter to the policy of the statute (Padfield v Minister of Agriculture and Fisheries [1968] UKHL 1; [1968] AC 997), or, misunderstanding the nature of the matter for his decision, failed to decide it (Green v Daniels [1977] HCA 18; (1977) 13 ALR 1) or did not act fairly in exercising his power (Heatley v Tasmanian Racing and Gaming Commission [1977] HCA 39; (1977) 14 ALR 519). The inconvenience of this construction would appear even more manifest if the invalidity should appear only in the course of a hearing before the Tribunal. Then the Tribunal, perceiving the injustice done by the excess of power, would be constrained to send the applicant away without remedy, comforting him with the advice that if he should bring proceedings in a court of competent jurisdiction to challenge the validity of the decision, and if the court should determine the issues in the same way as they appeared to the Tribunal, the decision would be held invalid, and the applicant might then expect that the decision-maker should start again and, provided the decision-maker did not make a similar error, a fresh unfavourable decision could be brought up for review before the Tribunal once more. It seems absurd that immunity from review could be secured by proof that the decision-maker's exercise of power so far miscarried as not to be a valid exercise of the power at all. > > As the literal construction of s25(1) leads to such manifest inconvenience and absurdity, the subsection should be so construed, if it be capable of such a construction, to avoid that inconvenience (R v Tonbridge Overseers [1884] LR13 QBD 339 at p.342), for the literal construction would substantially defeat the intention of the Act (Stock v Frank Jones (Tipton) Ltd [1978] 1 WLR 231 per Lord Scarman at p.239). > > The inconvenience arises in part from the administrator's difficulty in defining for himself the extent of the power which he may lawfully exercise. Where an attempt to exercise a statutory power falls outside the limits of the power conferred (whether because the repository of the power acts under a misconception of the limits of the power, or because he acts under a mistake as to the fulfilment of a condition precedent, or because he does not observe a condition governing the exercise of the power) it is immaterial that, in good faith, the repository intended to act and believed he was acting within power. Given good faith, the validity of the attempted exercise of power depends not upon the state of mind of the actor, but upon the extent of the power granted. The extent of that power can be determined, in a doubtful case, only by judicial pronouncement. Yet neither the administrator nor the Tribunal (which may be called on to stay his order or its implementation pending the determination of a substantive application (s41(2)), can know definitively whether the decision made is within power and valid. The inconvenience in the literal interpretation of s25(1) arises because the power of the administrator and the jurisdiction of the Tribunal would be made to depend upon the legal analysis of a statutory power and of its relationship with a decision, rather than upon the administrator's perception of the power which he is exercising. If the jurisdiction of the Tribunal to review a decision be determined by reference to the decision-maker's intention to exercise the power conferred upon him by an enactment, the inconvenience is avoided. Section 25(1) is reasonably open to this construction. The limitation which this construction places upon the jurisdiction to review would include in the category of reviewable decisions those decisions which an administrator takes in reliance upon powers specified in the various enactments which confer jurisdiction. Adapting the words of s25(1), the criterion of jurisdiction is whether the decision is made in the intended exercise of a power conferred by an enactment, not whether the decision is made in the valid exercise of such a power. In my view, this places the correct construction on the phrase.

7. This now well-accepted construction must be understood to have underpinned the conferral of power on this Tribunal. SACAT has the jurisdiction conferred on it by the SACAT Act and other enactments that confer jurisdiction: s 31. It has original and review jurisdiction: s 32. Section 34 provides:

(1) If the matter that a relevant Act gives the Tribunal jurisdiction to deal with is a matter that expressly or necessarily involves a review of a decision (a reviewable decision), the matter comes within the Tribunal's review jurisdiction. > > (2) For the purposes of subsection (1) (and the other sections of this Division), and subject to the provisions of a relevant Act, a reviewable decision is - > > (a) a decision made by the Crown or an agency or instrumentality of the Crown; > > or > > (b) a decision made by a prescribed person or body; or > > (c) a prescribed decision or class of decision, > > but does not include a decision made by a person or body or a decision, or class of decision, excluded by the regulations.

8. The application of President Brennan's reasoning to s 34 of the SACAT Act requires "decision" to include a purported, but invalid, decision. The Tribunal does not lack jurisdiction because, or upon finding, that a decision it has been asked to review is invalid.
9. Having established that a purported or intended exercise of power is sufficient to enliven jurisdiction in the Tribunal, Brennan P proceeded to consider what the Tribunal could do in respect of the legal consequences of the purported decision made in the absence of power. His Honour said,

Where a decision is made beyond power, the legal effect which the decision-maker seeks to achieve is denied; but that says nothing as to whether the decision may be reviewed, quashed, or otherwise affected by order of a court or of an appeal tribunal. The denial of the legal effect desired does not itself prevent the decision from having the effect of enlivening a jurisdiction conferred by law upon a court or appeal tribunal to review, quash or otherwise affect the decision. The right to invoke the jurisdiction depends upon the terms of the law creating that right and conferring jurisdiction to grant relief against the decision in question. Where "decision" is used in the provisions of the Administrative Appeals Tribunal Act relating to a right to apply for review, it is referring to a decision made in fact, and not to the effect which the decision may have under the power in the intended exercise of which it was made. > > ..... > > The ability of a decision by an appellate administrative authority to "cure" a vitiating defect in a decision from which the appeal is brought implies that the vitiating defect does not defeat the right to appeal to the appellate authority. In Twist v Randwick Municipal Council [1976] HCA 58; (1976) 12 ALR 379, Mason J referred to the effect which an original decision-maker's failure to accord natural justice may have upon the decision reached by an appellate administrative authority (at p 387): > > "But if the right of appeal is exercised and the appellate authority acts fairly and does not depart from natural justice the appeal may then be said to have 'cured' a defect in natural justice or fairness which occurred at first instance." > > The placing of quotation marks around "cured" may suggest that Mason J was using a convenient shorthand description of the effect of a valid supervening decision by the appellate authority, rather than describing the validating effect of the appellate authority's decision upon the original (and operative) decision. An interesting discussion of the cases bearing on the subject may be found in the judgment of Rath J in Calvin v Carr [1977] 2 NSWLR 308 at pp 341 et seqq. Whichever explanation of the "cure" be adopted, it is clear that there is no impediment against giving recognition and effect to a right of appeal to an administrative tribunal from an administrative decision which is made beyond power. A right to seek a review by this Tribunal of a decision made in the intended exercise of a power specified in the Schedule or in an enactment to which s 25(1) refers is not defeated if that decision is made beyond power. Where this Tribunal reviews a decision and for that purpose draws upon those powers (which s43 confers upon it) corresponding with the powers of the original decision-maker, it is this Tribunal's decision which is the operative decision.

10. It must be borne in mind that the task with which the Tribunal is charged is to reach the correct or preferable decision in respect of the matter that the Commission was required to decide. The possible invalidity of the Commission's decision is no barrier to the Tribunal discharging its function, but is also no answer to it. The issue of invalidity is relevant only to the weight to be attributed to the earlier decision.
11. However, the criticisms of the Commission's process and decision on the internal review process are relevant to the weight to be afforded to the internal review decision by this Tribunal. That weight may, by virtue of the criticisms properly made of a process, be so low that - even absent invalidity - the Tribunal is properly entitled to conduct a more fulsome review than may be necessary or appropriate where the attack on the internal review process is limited to particular aspects.
12. It being neither prohibited nor necessary to reach a conclusion as to the validity of the Commission's decision, we observe that there is no reason, in this case, for the Tribunal to make a finding about invalidity. Such a finding would not be determinative in a legal sense as only a court could issue a declaration to that effect.
13. The first of the questions posed was:
    1. Whether the decision the subject of the application was validly made and, if not, whether the Tribunal has jurisdiction to determine a review of that decision, or the preceding primary decision;
14. We consider that the question is best answered as follows:

The Tribunal has jurisdiction to conduct a review of the Commission's decision irrespective of whether the decision was vitiated by the type of error about which the applicant complains, namely that the Commission did not engage with its task.

1. It is not necessary to determine whether the decision was invalid but it is necessary to determine the appropriate weight to attribute to the original decision in the course of determining whether the decision should be affirmed, varied or substituted.
2. We consider that the evidence discloses that the Commission adopted a report which did not answer the question that the Commission was required to answer in order to fulfil its function on internal review. That question was whether, in light of the applicant's complaints, submissions and fresh evidence, the Commission's original determination should be confirmed, varied or substituted. The report did not address the applicant's complaints, submissions and evidence sufficiently and that precluded the proper fulfilment of the function.
3. In relying on the report, the Commissioners either asked themselves the wrong question, or to the extent that they recognised the erroneous focus on reasonableness in the report, they failed to engage sufficiently with the actual issues that they were required to engage with. Accordingly, the decision on internal review should be afforded little weight and the Tribunal should proceed, constituted with its original Members, to undertake the task as it should have been undertaken.

1. The Tribunal as currently constituted was also charged with the task of answering the following question:
   1. Whether (by virtue of the 2022 determination) the decision under review is operative or spent; and, if spent:

(i) whether the Tribunal has jurisdiction to determine a review of that decision; and, if so > > (ii) whether there is utility in the Tribunal reviewing the decision.

2. The period covered by the decision under review has expired and a subsequent determination addressing a subsequent period (the 2022 determination) was made by the Commission. The determination under review has no ongoing effect.
3. The Tribunal has jurisdiction to review decisions and that jurisdiction does not only operate upon current, operative decisions. The short answer to question 2(i) above is "yes". The question of whether there is utility in reviewing the decision must be answered by reference to the Tribunal's power to dismiss applications that are lacking in substance: s 48(1) of the SACAT Act.
4. In this case, both parties agree that the issues raised by the review have substance, in the sense of utility. Those issues are directly relevant to the current determination and future determinations with respect to the supply of water by this applicant in this location. We are satisfied that the second question posed should be answered thus:

The decision is not operative. The Tribunal nevertheless has jurisdiction to review it. In the circumstances of this matter, there is utility in the Tribunal reviewing the decision.

Is the 1 July 2022 determination before the Tribunal?

1. There is a final issue that can usefully addressed in this ruling. In the course of putting submissions on these issues, the applicant appears to have pressed an argument that the Tribunal is arguably seized with the task of reviewing the respondent's determination of 1 July 2022 which was not the subject of any application for internal review. The Tribunal addressed this issue with an oral ruling made on 16 August 2022,[55] finding that the determination was not before the Tribunal. However, the Tribunal authorised further submissions on the issue in a direction issued 14 September 2022, such that the matter might be understood not to have been finally determined. To some extent the issue is now moot, as the Tribunal has, in this ruling, acknowledged the utility of proceeding to review the previous determination despite the fact that it has been superseded by the determination of 1 July 2022. For completeness, however, the Tribunal as currently constituted confirms that the determination of 1 July 2022 is not before it. That determination is not open to be reviewed by the Tribunal because it has not been the subject of an internal review pursuant to s 31 of the ESC Act.

Question 1: The Tribunal has jurisdiction to conduct a review of the Commission's decision irrespective of whether the decision was vitiated by the type of error about which the applicant complains, namely that the Commission did not engage with its task.

(i) The decision is not operative. The Tribunal nevertheless has jurisdiction to review it.

(ii): There is utility in the Tribunal reviewing the decision.

1. The matter is to be determined in accordance with this ruling by the Tribunal constituted by Member Bean (Presiding) and Ms Shaw Rungie.

[1] GKZ v Department for Child Protection & Anor (No 2) [2022] SACAT 75 (24 August 2022).

[12] Section 35 Book of Documents, p 267.

[14] The language of s 32 of the ESC Act is slightly different from that of s 34 of the SACAT Act. The ESC Act provides for the decision to be confirmed, varied or substituted, whereas the SACAT Act refers to the decision under review being affirmed, varied or substituted. There was no submission that this difference is material. The wording of the ESC Act should prevail in accordance with s 4 of the SACAT Act to the extent that the different wording represents an inconsistency.

[19] JGN at 13; Section 35 Book of Documents, p 1195-1201.

[24] Section 35 Book of Documents, p 15.

[26] See, for example, Yammani v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 87.

[27] [1987] FCA 457, 14 ALD 291.

[28] [2010] HCA 48, 85 ALJR 306 at [26].

[29] See, for example, Dare, Bilney & Ors v Kelaray Pty Ltd, Premier of South Australia [2022] SASC 91; Kikiras v Commissioner of Police, NSW Police Force [2023] NSWCATAD 27.

[30] [2022] HCA 17.

[31] At [24] per Kiefel CJ, Keane, Gordon and Steward JJ.

[34] [2017] FCAFC 107 (Griffiths, White and Bromwich JJ).

[40] JGN10, p 410; Statement of Reasons, p 1.

[45] Applicant's Documents, p 436, 437.

[50] JGN10, p 410; Statement of Reasons, p 1.

[51] JGN10, p 413; Statement of Reasons, p 4.

[52] [1978] AATA 49 (21 July 1978).