Not So Neat: Non-Statutory Corporations and the Reach of the Administrative Decisions (Judicial Review) Act 1977
| Date | 01 March 2004 |
| DOI | 10.22145/flr.32.1.6 |
| Published date | 01 March 2004 |
| Subject Matter | Comment |
COMMENT
NOT SO NEAT: NON-STATUTORY CORPORATIONS AND
THE REACH OF THE ADMINISTRATIVE DECISIONS
(JUDICIAL REVIEW) ACT 1977
Neil Arora*
INTRODUCTION
From 1 July 1999, a new Commonwealth statutory scheme for the regulation of wheat
exports took effect. Unlike the previous regulatory scheme, the Wheat Marketing
Legislation Amendment Act 1998 (Cth) ('the amending Act'), which amended the Wheat
Marketing Act 1989 (Cth) ('the Act'), introduced a novel element. The amending Act
altered the scheme so that supervision and implementation of the scheme, which had
previously been ascribed to a single statutory authority, were divided over two
entities. Supervision of the scheme remained with a statutory authority, whilst a
grower-owned company, incorporated under the Corporations Law of Victoria,1 was
charged with implementation of the scheme.2
The case presented in NEAT Domestic Trading Pty Limited v Australian Wheat Board
Ltd, 3
the subject of this comment, raised an important question as to the reach of
statutory administrative law, set against the background of the amended wheat export
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* B Com, LLB (Hons) (ANU); Associate to the Honourable Justice WMC Gummow, AC. The
views expressed in this article are those of the author.
1 I will interchangeably use the term 'non-statutory corporation'. Note, at the time the
grower-owned company was incorporated the Corporations Law was in force. Thus, for ease
of reference I will refer only to the Corporations Law and not to the Corporations Act 2001
(Cth), which reproduced the relevant provisions.
2 The High Court has confirmed that the Commonwealth can legislate to create whatever
vehicle it wishes to carry out a valid function or objective: Australian National Airways Pty
Ltd v Commonwealth (1945) 71 CLR 29. Also see Heiner v Scott (1914) 19 CLR 381, 392; and
Bank of New South Wales v Commonwealth (1948) 76 CLR 1, 361.
3 NEAT Domestic Trading Pty Limited v Australian Wheat Board Ltd (2003) 77 ALJR 1263 ('NEAT
Domestic').
142 Federal Law Review Volume 32
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scheme. Specifically, the question in NEAT Domestic was whether decisions made by
the grower-owned company denying NEAT Domestic Trading Pty Ltd ('NEAT')
permission to export wheat were 'decisions of an administrative character made under
an enactment' within the meaning of s 3(1) of the Administrative Decisions (Judicial
Review) Act 1977 (Cth) ('the ADJR Act'), thereby giving the Court jurisdiction. More
generally, Kirby J described the question of principle raised, and the importance of it
vis-à-vis the changing face of the delivery of governmental services, as
whether, in the performance of a function provided to it by federal legislation, a private
corporation is accountable according to the norms and values of public law or is cut
adrift from such mechanisms of accountability and is answerable only to its shareholders
and to the requirements of corporations law or like rules.
Given the changes in the delivery of governmental services in recent times, performed
earlier and elsewhere by ministries and public agencies, this question could scarcely be
more important for the future of administrative law.4
A majority of the Court (McHugh, Hayne and Callinan JJ; Gleeson CJ and Kirby J
dissenting)5 held that decisions made by non-statutory corporations did not fall within
ADJR Act jurisdiction. At a superficial level, the conclusion in NEAT Domestic means
that by transferring a function from a statutory to a non-statutory body, review under
the ADJR Act can be avoided. This conclusion is alarming and demands examination.
In my opinion, the majority's decision was incorrect. Their Honours reached their
decision by reasoning at a very general level. Such reasoning was not warranted by the
question raised. Instead, what was required of the Court was an exercise in statutory
construction. In my view, decisions made by a non-statutory corporation in pursuance
of a role granted to it under legislation are subject to review under the ADJR Act. This
comment will seek to show why this is the case.
In part I of this comment I sketch out the background to the regulation of wheat
exports in Australia, and the facts of NEAT Domestic and the framework within which
those facts arose. In part II I discuss the reasons given by the Court, and in particular I
seek to show that the reasons offered by the majority were flawed such that the
conclusion is unsustainable. In part III I propose an alternative approach to
determining the question of ADJR Act jurisdiction which relies, in part, on reasoning
adopted in the constitutional context, and on the affinity that exists between s 3(1) of
the ADJR Act and s 76(ii) of the Constitution. Finally, in part IV I discuss the procedural
choices made by NEAT as to how to pursue its case, and whether those choices were
likely to succeed even if the issue in dispute had been determined in its favour.
I BACKGROUND TO NEAT DOMESTIC
A Regulation of wheat exports
In 1939 the Commonwealth government established the Australian Wheat Board ('the
Board'), a statutory authority charged with the responsibility of marketing Australian
wheat. In 1989 the domestic market for wheat was de-regulated, but strict regulation
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4 NEAT Domestic (2003) 77 ALJR 1263, 1276 [67]–[68].
5 As to the result, Gleeson CJ also formed part of the majority. However, in respect of the
issue discussed in this comment, his Honour the Chief Justice was in dissent. Accordingly,
I refer to his Honour's judgment as a dissenting judgment, and the joint judgment as the
majority judgment.
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