Steps taken to define a ‘decision’:
-   is it a final decision? Yes
-   Is it a recommendation/ report made consistently with stat duty to make the report? Making report a condition precedent- in nature of a jurisdictional fact that must be satisfied before the decision. Yes
-   Or is it simply an investigation being made prior to ultimate decision. No

Held (per Toohey & Gaudron JJ - dissent):
-   Decisions reviewable are not confined to acts involving exercise of or refusal to exercise a substantive power
-   Act applies to decisions forming part of the process or made in the course of other decisions
-   Acts confined by requirement of ‘under an enactment’- this is the phrase we should look at and the way of putting restrictions on the ADJR Act.
-   T’s findings re licensees = decision
-   T’s conclusion re bond not itself ‘decision’
-   Findings and conclusions though not required may bear on the issue for determination under an enactment
-   Any error attending conclusions or findings must be analysed to see if its reviewable under s5 of the act.

Policy considerations: ABT v Bond has been used to deny justiciability under ADJR Act where proceedings are a ‘step along the way’. Although s39B Judiciary Act is still available (review officer of CW) or at CL what important procedural entitlement is lost if there’s no ADJR Act. 

1.2.3    Of an “Administrative Character”

* Evans v Friemann (1983) 35 ALR 428  

Facts: A solicitor was informed by the Board of Examiners of Patent Attorneys that he had failed two out of three subjects in examinations for admission as a patent attorney. He requested the board to give statement of reasons under s13 ADJR act and requested copies of the answers in the subjects he failed. They gave him the reasons but not his answers. Sought review of decisions to fail him and give him his answers under the ADJR Act.

Issue: is the examination process the kind of decision we can regard as of an administrative character?

PRINCIPLE: to determine whether an activity is reviewable, it must be classified as administrative, as distinct from legislative or judicial. The process of examination is administrative. Note: a factor is whether there is any other means of redress; remedial statute. Non judicial tribunals should be subject to the act.

Held:
•    There was a decision w/in s3(1) of the Act
•    Classification of the activity (functions i.e. b/w legislative, judicial and administrative) remains necessary (NB: under PF said don’t need to classify decisions) to ascertain whether the person is making a decision of an administrative character.
•    ADJR Act maintains the constitutional trichotomy.
•    There can be no review of legislative or judicial actions w/in the act. This means no judicial review of subordinate legislation  (this is a decision of a legislative nature- cant use ADJR to challenge CW regs) or judicial decisions/ (cant review decisions by judges).
•    Problem: the concept of ‘administrative’ is not by itself clear and distinctive
•    Non judicial tribunals created under an enactment should be subject to the act (even though their functions are quasi-judicial- tribunals are part of the administrative arm of govt so their decision making is reviewable).
•    Act is remedial and should be given wide construction and application. Need to examine the decision itself, not its subject matter.

Process of examination is ‘administrative’- so applicant can rely on ADJR Act:
“In the present case the decision to fail a candidate in an examination could be classified…in my opinion…as an incident in an administrative process and as of an administrative character. The role of the Board of Examiners is one of carrying out a purpose of the Patents Act…the process of arranging for, and promulgating the results of examinations are distinctly administrative”
•    Court said it may be that university exams are also subject to judicial review bc unis exercise stat powers as well. Wont decide now bc  it may be that a person can resort to the uni appeal process- resort could be had to a visitor s10(2)(b)(ii).
•    Here there was none the applicant could go to except the board of examiners
•    Also no doubt ‘under an enactment’ – Patent Attorney Regulations.
Lamb v Moss (1983) 49 ALR 533 

*Queensland Medical Laboratory v Blewett (1988) 84 ALR 615

Facts: Pursuant to S 4 Health Insurance Act the Minister for Community Services and Health placed a new pathology table in Sch 1A to the Act. Meant that Medicare benefits for pathology would be calculated according to the new table. Minister acted upon recommendations from the Pathology Services Advisory Committee as established in the Act. There was no calculation before the committee supporting the finding of a 5-8% reduction income and the only material dealing with various costs consisted of notes of limited inquiries made by one committee member. The members of the Australian Association of Pathology Practices claimed the new table would reduce pathologists practice income by 15 –20%. They bought proceedings against the Minister and committee seeking review. Minister argued it was a legislative,
not administrative decision.

PRINCIPLE: There’s a distinction b/w formulation of new rules of law of general application (legislative) and application of general rules to particular case (administrative). The making of delegated legislation, whether it be by the minister or his delegate under a statutory power is legislative in character in a direct and immediate sense. It will thus be excluded from review from the ADJR Act.

Held:
•    Legislature determines the content of the law, executive applies it.
•    Here making delegated legislation, whether it be by the minister or his delegate under a statutory power is legislative in character in a direct and immediate sense. It will thus be excluded from review from the ADJR Act.
•    There’s a distinction b/w formulation of new rules of law of general application (legislative) and application of general rules to particular case (administrative).
•    Where apply general rules to individual cases = making an administrative decision. Minister’s determination was legislative (making a new rule) not administrative (applying a rule). It was to apply to all pathology services.
•    The minister was required to make a determination as to whether or not to change the schedule.
•    Had the minister’s decision been to not to make a determination, it would have been a decision of an administrative character. Bc legis says ‘you may make a decision’.
•    However, a determination made by the minister to change the schedule to the act is a decision of a legislative character and is not reviewable under the ADJR Act. He is executing a law of the CW.
•    When the minister makes a determination that the table specified in the determination be substituted for the pathology services table…he is making a decision of a legislative rather than an administrative character. The law was a permitted delegation by the Parliament of legislative authority and to exercise the power conferred by the law is to act as delegate of the Parliament and thus to act legislatively.
•    the ADJR Act is not applicable.

1.2.4    “Under an Enactment”?
•    ADJR Act s3(1) – “enactment” means an Act or an instrument (including rules, regulations or by-laws) made under such an Act

* Australian National University v Burns (1982) 43 ALR 25  

Facts: The issue here was whether the termination of a persons employment by a university was under an enactment.  S23 of the Australian National University Act (Cth) gave the ANU’s council a broad power to appoint staff and manage the university, but no express provision was under the Act or any delegated legislation that empowered the council to terminate appointments.  Burns’ contract with the uni provided that ‘the Council may terminate the appointment of … any professor who has become permanently incapacitated from performing the duties of his office’. When Burns was served his termination, (the Council acted on a medical report saying Burns was seriously ill) he took ANU to court demanding a statement of reasons as per s13 of the ADJR.  Initially, Burns was granted the request by the court on the grounds that the decision was made under an enactment.  The uni appealed. 

Held: Bowen CJ and Lockhart J-

PRINCIPLE: whether a decision is made under an enactment is a question of substance. Where a contract is entered into that governs the rights and liabilities b/w the govt and 3rd parties, actions taken in accordance with its provisions cannot be said to be made ‘under an enactment’.

•    All universities do operate under Cth statute, Q is whether termination of contract of employment is ‘under an enactment’
•    S 23 is the source of power to enter contracts, once a person is employed, that relationship is governed by contract. Concluded that the rights and duties between the uni and Burns was derived under a contract, and so the law of contract governed the relationship.
•    However it would be characterised as “under an enactment” if:
o    Uni council (which has power to make by-laws) had made a statute stipulating when profs could be dismissed/ enunciating their rights; and
o    Provisions of statute incorporated into contract
•    ADJR Act, “should not be confined to cases where the particular power is precisely stated.  In each case the question to be asked in one of substance, whether, in effect, the decision is made ‘under an enactment’ or otherwise.” 
•    They also rejected the test that ‘under an enactment’ is if a decision ‘lies at the very heart of those functions for which the body was established by statute,’ i.e. the particular position of a person (professor, lecturer, librarian etc) is not itself determinative of the question whether a decision of the Council was made under the Act. Since the decision arose from the contract it was not reviewable under the ADJR Act.
•    However, because Burns was dismissed on a particular ground, (permanent incapacity), provided for in the contract of engagement, then the rights and duties of the parties to the contract of engagement were derived under contract law and not the Uni Act.
•    Impact: As soon as govt enters into a contract, the 3rd parties’ rights must be enforced/actions brought in contract- a private law remedy.
•    Government’s personal capacity to enter contracts under CL or regs (Hawker), not under an enactment
Note: however, the two situations where it would have been different.

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