¹ (2003) 214 CLR 1.

² (2003) 216 CLR 277.

³ (2005) 221 CLR 99.

⁴ Namely, Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.

⁵ See In re McKerr [2004] 1 WLR 807.

⁶ For example: Mantziaris, Christos, ‘A “Wrong Turn” on the Public/Private Distinction: NEAT Domestic Trading Pty Ltd v AWB Ltd’ (2003) 14 Public Law Review 197Google Scholar; Campbell, Madeline and Nicholas, Peter, ‘Public Law Remedies and Private Bodies’ (2003) 10 Litigation Notes 10Google Scholar; Fraser, Ron, ‘Developments in Administrative Law’ (2004) 40 AIAL Forum 1Google Scholar; Buckland, Andrew and Higgison, Jayne, ‘Judicial Review of Decisions by Private Bodies’ (2004) 42 AIAL Forum 37Google Scholar; Arora, Neil, ‘Not so Neat: Non-statutory Corporations and the Reach of the Administrative Decisions (Judicial Review) Act 1977’ (2004) 32 Federal Law Review 141CrossRefGoogle Scholar; Hill, Graeme, ‘The Administrative Decisions (Judicial Review) Act and “Under an Enactment“: can NEAT Domestic be reconciled with Glasson?’ (2004) 11 Australian Journal of Administrative Law 135Google Scholar; Aronson, Mark, ‘Is the ADJR Act Hampering the Development of Australian Administrative Law?’ (2004) 15 Public Law Review 202Google Scholar; Conde, Caspar, ‘Accountability for the Exercise of “Public” Power: a Defence of NEAT Domestic’ (2005) 46 AIAL Forum 1Google Scholar; Allars, Margaret, ‘Public Administration in Private Hands’ (2005) 12 Australian Journal of Administrative Law 126Google Scholar; Hill, Graeme, ‘Griffith University v Tang: Comparison with NEAT Domestic, and the Relevance of Constitutional Factors’ (2005) 47 AIAL Forum 6Google Scholar; Stewart, Daniel, ‘Griffith University v Tang, “Under an Enactment” and Limiting Access to Judicial Review’ (2005) 33 Federal Law Review 526CrossRefGoogle Scholar; Gangemi, Melissa, ‘Griffith University v Tang: Review of University Decisions Made “Under an Enactment''’ (2005) 27 Sydney Law Review 567Google Scholar; Gageler, Stephen, ‘The Legitimate Scope of Judicial Review: the Prequel’ (2005) 26 Australian Bar Review 303Google Scholar; Will, Michael, ‘Judicial Review of Statutory Authorities’ (2005) 47 AIAL Forum 1Google Scholar; Stewart, Daniel, ‘Non-Statutory Review of Private Decisions by Public Bodies’ (2005) 47 AIAL Forum 17Google Scholar; Kamvounias, Patty and Varnham, Sally, ‘Doctoral Dreams Destroyed: Does Griffith University v Tang Spell the End of Judicial Review of Australian University Decisions?’ (2005) 10 Australia and New Zealand Journal of Law and Education 5Google Scholar; Finkelstein, Raymond, ‘Crossing the Intersection: How Courts are Navigating the “Public” and “Private” in Judicial Review’ (2006) 48 AIAL Forum 1Google Scholar; Mantziaris, Christos and McDonald, Leighton, ‘Federal Judicial Review Jurisdiction after Griffith University v Tang’ (2006) 17 Public Law Review 22Google Scholar; Cassimatis, Anthony E, ‘Statutory Judicial Review and the Requirement of a Statutory Effect on Rights or Obligations: “Decisions Under an Enactment''’ (2006) 13 Australian Journal of Administrative Law 169Google Scholar; and Michael D Kirby, ‘Public Funds and Public Power Beget Public Accountability’ (Paper presented at the Corporate Governance in the Public Sector conference, University of Canberra, 9 March 2006) available via <http://www.hcourt.gov.au/publications_05.html#MichaelKirby> at 23 March 2007.

⁷ NEAT Domestic (2003) 216 CLR 277, 300 [68]; and Tang (2005) 221 CLR 99, 133 [100].

⁸ Tang (2005) 221 CLR 99, 133 [100] (citations omitted).

⁹ Ibid. His Honour's respect for ADJR was not new. He said in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, 94 [157] that the Act was ‘overwhelmingly beneficial', although he did have one complaint, which was that he thought that ADJR's codification of the grounds of review might have ‘retarded’ (at 94 [157]) or ‘arrested’ (at 97 [166]) the common law's development. The author disagrees with that complaint. See Aronson, above n 6.

¹⁰ Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1, 22–3 [67]–[68]. His Honour thought the term might retain some value, as indicating an objective judicial assessment of the content of procedural fairness.

¹¹ Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action (3^rd ed, 2004) 128–9.

¹² Ibid 132–6, 359–64.

¹³ Since R v Criminal Injuries Compensation Board; Ex parte Lain [1967] 2 QB 864; see Aronson, Dyer and Groves, above n 11, 115–17, 132–6.

¹⁴ Aronson, Dyer and Groves, above n 11, 351–8.

¹⁵ R v Panel on Take-overs and Mergers; Ex parte Datafin Plc [1987] 1 QB 815 ('Datafin’). There are signs of unease with this approach, because it appears to treat soft law rules as if they had legal force: R (Norwich and Peterborough Building Society) v Financial Ombudsman Service Ltd [2002] EWHC 2379 (Admin), [68]–[74].

¹⁶ With the consequences that its originating process is different, and it is not heard in the Administrative Court (a Division of the High Court).

¹⁷ Lam (2003) 214 CLR 1, 14 [38] (Gleeson CJ).

¹⁸ See: Lu v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 141 FCR 346; VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117, [80]–[83]; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162, 184–5 [81]–[84]; Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 223 ALR 171, 174 [10], 197 [106], 200-1 [120]–[124].

¹⁹ Lam (2003) 214 CLR 1, 30-2 (McHugh and Gummow JJ).

²⁰ Ibid 45–7 (Callinan J).

²¹ As in A-G (NSW) v Quin (1990) 170 CLR 1.

²² Lam (2003) 214 CLR 1, 27–8, 36–8.

²³ Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1, 22–3 [67]–[68].

²⁴ (1985) 159 CLR 550 ('Kioa’).

²⁵ See, eg, Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648, 652; and Annetts v McCann (1990) 170 CLR 596, 598.

²⁶ Kioa (1985) 159 CLR 550, 616–17.

²⁷ Ibid 617.

²⁸ As where an official gave an undertaking or promise.

²⁹ As in A-G (NSW) v Quin (1990) 170 CLR 1.

³⁰ The Court was highly critical of R v North and East Devon Health Authority, Ex parte Coughlan [2001] QB 213; and R v Secretary of State for Education and Employment; Ex parte Begbie [2000] 1 WLR 1115. The English search for overarching principles has unearthed ‘legitimate expectations', ‘abuse of power', ‘unfairness’ per se, equality of treatment, and ‘good administration', and converted those into review grounds in their own right. The real issue has become when the court chooses to order the administration to deliver a substantive outcome, and on that issue, the cases and commentary are understandably unclear. Their lack of clarity is not assisted by a proliferation of categories. In essence, the cases seem to allow such orders in exceptional cases, where the judge believes that only a few will benefit and where the cost to the state will not outweigh the fairness of enforcing the substantive outcome. See R (Bibi) v Newham London Borough Council [2002] 1 WLR 237; R (Rashid) v Secretary of State for the Home Department [2005] EWCA Civ 744; Abdi v Secretary of State for the Home Department [2005] EWCA Civ 1363; and Steele, Iain, ‘Substantive Legitimate Expectations: Striking the Right Balance?’ (2005) 121 Law Quarterly Review 300.Google Scholar

³¹ In context, the distinction made in the judgments between ‘procedural’ natural justice and ‘substantive rights’ is addressed to the outcome of the case — between insisting on fair procedures, or on a specific outcome. See Lam (2003) 214 CLR 1, 21, 34 [105], 37 [118], 48 [148].

³² In a practical sense, however, one should note that even on the minority approach, someone wanting export consent would have had to persuade AWBI that the latter's markets were not under threat. As the Chief Justice delicately hinted, companies would have been reluctant to reveal too much for fear that AWBI would snaffle the deal for itself: (2003) 216 CLR 277, 287 [19].

³³ (2003) 216 CLR 277, 297 [51]: ‘Thirdly, it is not possible to impose public law obligations on AWBI while at the same time accommodating pursuit of its private interests.'

³⁴ By the Wheat Marketing Amendment Act 2003 (Cth).

³⁵ Wheat Marketing Act, s 5A, inserted in 2003.

³⁶ Commonwealth, Inquiry into Certain Australian Companies in Relation to the UN Oil-for-food Programme, Report of the Inquiry (2006).

³⁷ Wheat Marketing Amendment Act 2006 (Cth).

³⁸ The joint judgment's view that AWBI was not amenable to administrative law remedies was made abundantly clear in two passages: NEAT Domestic (2003) 216 CLR 277, 297 [49]–[50], 300 [64]. Its view on the availability of judicial review's grounds was not so clearly expressed, although there was a statement at 297 [51] that ‘it is not possible to impose public law obligations on AWBI while at the same time accommodating pursuit of its private interests.'

³⁹ (1985) 159 CLR 550, 566–7, 576–7, 593–4, 625, 630.

⁴⁰ See Criminal Code Act 1995 (Cth) ss 135.4(7) and 141.1.

⁴¹ Aronson, Dyer and Groves, above n 11, 466–7.

⁴² NEAT Domestic (2003) 216 CLR 277, 288 [22].

⁴³ NEAT Domestic (2003) 216 CLR 277, 297–8. The joint judgment of Gummow, Callinan and Heydon JJ in Tang (2005) 221 CLR 99, 127–8 [77] confirmed this interpretation of NEAT Domestic in relation to ADJR. Mantziaris and McDonald, above n 6, 43–4 contended that Tang's explanation had overlooked NEAT Domestic's other reasons for denying the availability of judicial review. With respect, however, those other reasons went to the possibility of common law judicial review.

⁴⁴ NEAT Domestic (2003) 216 CLR 277, 298 [54] (emphasis added).

⁴⁵ Although one might point to s 57(6) which (as noted above) talked of ‘anything … done by [AWBI] under this section or for the purposes of this section’ (emphasis added).

⁴⁶ NEAT Domestic (2003) 216 CLR 277, 290–1 [27]–[29].

⁴⁷ Ibid 298–9 [57]–[62].

⁴⁸ Ibid 297 [49]–[50].

⁴⁹ Most recently HWR Wade and CF Forsyth, Administrative Law (9th ed, 2004) 355 (citations omitted, emphasis added).

⁵⁰ See Gianluigi Palombella, ‘The Abuse of Rights and the Rule of Law', and András Sajó, ‘Abuse of Fundamental Rights or the Difficulties of Purposiveness', in András Sajó (ed), Abuse: the Dark Side of Fundamental Rights (2006) 5–27, 29–98 respectively.

⁵¹ See Mayor of Bradford v Pickles [1895] AC 587; Michael Taggart, Private Property and Abuse of Rights in Victorian England: the Story of Edward Pickles and the Bradford Water Supply (2002).

⁵² See: Mantziaris, above n 6; Mantziaris and McDonald, above n 6, 45–7. Mantziaris and McDonald went further than this article, saying that the public/private distinction was the real issue for Tang and also, so far as ADJR was involved, for NEAT Domestic. It is submitted that ADJR's jurisdictional requirement that there be an administrative decision under an enactment cannot be entirely morphed into the common law's public/private power inquiry. It must be taken seriously as an issue of statutory interpretation, albeit one that is inevitably influenced by normative considerations. That is an unfortunate consequence of ADJR's design; see Aronson, above n 6, 207–9. If there is any part of ADJR which could serve to incorporate the function of the common law's public/private distinction, it must be found in ss 5, 6 and 7 which all allow applications for ‘an order of review’ for various grounds, and in s 16's description of those ‘review’ orders, a description which amounts to a list of the remedies typically available in judicial review at common law. Cf the case law on s 9 of ADJR: Aronson, Dyer and Groves, above n 11, 80–2.

⁵³ The leading English case is Datafin [1987] 1 QB 815. Australian reactions to Datafin are difficult to gauge: Aronson, Dyer and Groves, above n 11, 127–32.

⁵⁴ Only Kirby J saw Datafin's relevance to the issues in NEAT Domestic (2004) 216 CLR 277, 313–14 [112]–[115].

⁵⁵ Judicial Review Act 1991 (Qld) s 4(a) ('JRA’).

⁵⁶ General Newspapers Pty Ltd v Telstra Corporation (1993) 45 FCR 164.

⁵⁷ (2005) 221 CLR 99, 130–1 [89].

⁵⁸ It is particularly welcome for overturning some Federal Court cases which were ambivalent about implied statutory authority for decisions, and others which turned on the proximity between the challenged decision and the relevant Act.

⁵⁹ If there is a dominant image of administrative power, it is that it is discretionary.

⁶⁰ R v Disciplinary Committee of the Jockey Club; Ex parte Aga Khan [1993] 1 WLR 909 ('Aga Khan’); and Hampshire County Council v Supportways Community Services Ltd [2006] EWCA Civ 1035. Aga Khan has been frequently criticised for its treatment of all contracts as ‘consensual', but it is still good law. See Black, Julia, ‘Constitutionalising Self-Regulation’ (1996) 59 Modern Law Review 24CrossRefGoogle Scholar; and R (Mullins) v Appeal Board of the Jockey Club [2005] EWHC 2197 (Admin) ('Mullins 2005’). The English courts assess the lawfulness of disciplinary decisions of professional organisations according to the same grounds (they call them ‘supervisory’), regardless of whether the organisation is legislatively or contractually based. Only the procedure for invoking the court's jurisdiction is different. See: Mullins 2005 [2005] EWHC 2197 (Admin); Bradley v Jockey Club [2005] EWCA Civ 1056; National Greyhound Racing Club Ltd v Flaherty [2005] EWCA Civ 1117; Mullins v McFarlane [2006] EWHC 986 (QB); and Fallon v Horseracing Regulatory Authority [2006] EWHC 2030 (QB).

⁶¹ Tang (2005) 221 CLR 99, 128–9 [81]–[82].

⁶² Ibid 129 [82].

⁶³ Ibid 131 [91].

⁶⁴ Ibid 132 [95]–[96].

⁶⁵ Re Judiciary and Navigation Acts (1921) 29 CLR 257, 265 (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ).

⁶⁶ Tang (2005) 221 CLR 99, 131 [90].

⁶⁷ See Mantziaris and McDonald, above n 6, 30–41; Lindell, Geoffrey, ‘The Statutory Protection of Rights and Parliamentary Sovereignty: Guidance from the United Kingdom?’ (2006) 17 Public Law Review 188, 204–7.Google Scholar

⁶⁸ O 25, r 5 (UK) (emphasis added). Every Australian Supreme Court has an equivalent provision, as does the Federal Court.

⁶⁹ (1978) 142 CLR 1, 23.

⁷⁰ Civil Procedure Rules 1998 (Eng) Pt 40.20.

⁷¹ Re S [1996] Fam 1, 18. See also Re F [2001] 3 Fam 38; HL v United Kingdom (2004) 81 BMLR 131 (ECtHR); but cf Re V [1997] 2 FCR 195.

⁷² Johnco Nominees Pty Ltd v Albury-Wodonga (NSW) Corp [1977] 1 NSWLR 43, 65.

⁷³ McClelland v Burning Palms Surf Life Saving Club (2002) 191 ALR 759.

⁷⁴ See Aronson, Dyer and Groves, above n 11, 785–8. However, Cooper J said in Direct Factory Outlets Pty Ltd v Westfield Managements Ltd (2003) 132 FCR 428, 433–4 that rights, duties or liabilities must still be at stake, although these can relate or belong to a third party. In other words, his Honour saw the liberalisation of the declaratory jurisdiction as going no further than freeing the need for the opposing parties to have correlative interests.

⁷⁵ (2005) 221 CLR 99, 117 [44].

⁷⁶ Ibid 144 [135], 152 [152].

⁷⁷ Guss v Deputy Commissioner of Taxation (2006) 152 FCR 88; SLR in Guss v Deputy Commissioner of Taxation [2006] HCATrans 628.

⁷⁸ That much is obvious from Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591.

⁷⁹ General Newspapers Pty Ltd v Telstra Corporation (1993) 45 FCR 164, 173 had thought that ADJR might apply to such decisions, but critics have asked how a decision's illegality could make it a decision under an enactment when it is not under an enactment if made legally. See Mantziaris and McDonald, above n 6, 42–3.

⁸⁰ (1992) 175 CLR 564.

⁸¹ Ibid 582–3.

⁸² Ibid 584–5.

⁸³ Most of the cases concerned the natural justice grounds, but the debate extends in principle to other grounds.

⁸⁴ Aronson, Dyer and Groves, above n 11, 96–113.

⁸⁵ Ainsworth (1992) 175 CLR 564, 584–5.

⁸⁶ Ibid 585–6.

⁸⁷ And it could not have been, in either Kioa or Ainsworth.

⁸⁸ (1990) 170 CLR 1, 36.

⁸⁹ Ibid 35–6.

⁹⁰ Ibid 36.

⁹¹ (2005) 223 ALR 171, [16].

⁹² (2005) 221 CLR 99, 131 [91].

⁹³ Ibid.

⁹⁴ (1996) 68 FCR 87, 96–7.

⁹⁵ Ibid 103–4.

⁹⁶ (2003) 214 CLR 1, 27–8 [81]–[83], 48 [148].

⁹⁷ (2005) 221 CLR 99, 131–2 [92].

⁹⁸ Of course, a statute such as a Bill of Rights could impose natural justice obligations upon administrative decision-makers exercising non-statutory powers: see Lamb v Massey University [2006] NZCA 167.

⁹⁹ That cross-over is complete in England: Mullins 2005 [2005] EWHC 2197 (Admin); Bradley v Jockey Club [2005] EWCA Civ 1056; National Greyhound Racing Club Ltd v Flaherty [2005] EWCA Civ 1117; Mullins v McFarlane [2006] EWHC 986 (QB); and Fallon v Horseracing Regulatory Authority [2006] EWHC 2030 (QB).

¹⁰⁰ Kioa (1985) 159 CLR 550; Ainsworth (1992) 175 CLR 564.

¹⁰¹ JRA s 4(b).

¹⁰² Tang (2005) 221 CLR 99, 118–19 [48]–[49].

¹⁰³ Unless some judicial review principles apply, JRA's subjection of non-statutory decision-making to judicial review's remedies would have been pointless.

¹⁰⁴ An argument advanced by Sir Gerard Brennan, ‘The Review of Commonwealth Administrative Power: Some Current Issues’ in Robin Creyke and Patrick Keyzer (eds), The Brennan Legacy: Blowing the Winds of Legal Orthodoxy (2002) 9, 9–37.

¹⁰⁵ Administrative Review Council, Review of the Administrative Decisions (Judicial Review) Act: the Ambit of the Act, Report No 32 (1989) 40–1. The Council's timidity and the Commonwealth's response are discussed in Aronson, Dyer and Groves, above n 11, 79–80.

¹⁰⁶ The Administrative Review Council was proposing an extension of Federal Court power. Unlike the State Supreme Courts, the Federal Court has no inherent jurisdiction. Statute was therefore necessary to effect such an extension.

¹⁰⁷ Soft law's relevance to the exercise of statutory power raises other issues — principally estoppel and natural justice.

¹⁰⁸ Aronson, Dyer and Groves, above n 11, 140–6.

¹⁰⁹ As in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.

¹¹⁰ [1967] 2 QB 864, discussed in Aronson, Dyer and Groves, above n 11, 115–17, 128, 133–6.

¹¹¹ Mantziaris, above n 6, 200–1; Mantziaris and McDonald, above n 6, 43, 45–8.

¹¹² Jenny Stewart, ‘Administrative Law in the Age of the Contract', in John McMillan (ed), Administrative Law Under the Coalition Government (1997) 152, 154.