* General Newspapers Pty Ltd v Telstra (1993) 117 ALR 629 

Facts: Telecom had indicated that it was interested in tenders for printing the white and yellow pages.  It went and inspected the premises of General Newspapers and they believed that they would have been called for a tender. Telecom went in house, and did not inform GN, and did not call for tenders.  GN appealed.

Issue: whether this was justiciable under ADJR Act

Principle: A contract entered into by a corporation under a general power to enter into contracts is not given force and effect by the empowering statute.  The empowering statute merely confers capacity to contract, whilst the validity and effect of the contract is determined by the ordinary laws of contract. The decision to contract is not justiciable under the ADJR Act as being made ‘under an enactment’.

Held: per Davies and Einfeld JJ
•    The term ‘decision’ meant, “an ultimate or operative determination which has force and effect by virtue of an enactment.  A contract entered into by a corporation under a general power to enter into contracts is not given force and effect by the empowering statute.  The empowering statute merely confers capacity to contract, whilst the validity and effect of the contract is determined by the ordinary laws of contract.” 
•    Applying this principle here, GN was challenging the conduct that led into making a contract, and no statute provided specific provisions for this
•    What this case may mean: Shows that the conduct behind entering into a contract by a statutory body like Telecom, is not to be considered as a decision which is ‘under an enactment.’
•    Do get contractual capacity from statute, but the minute enter into contracts is private law.

INTERESTING ISSUES:

•    there a difference b/w ANU and here as here the contract hasn’t been entered into yet- so why is court insisting that Telstra is not engaging in conduct under an enactment?
•    Argument: court too fixated on contract and too willing to cut out of justiciability questions all sorts of govt contracts.
•    should such decisions be justiciable?
•    Implications for GBEs are serious – bc saying even before GBEs contract- in all preliminary stages before finalising contracts the process isn’t justiciable. Authority now excludes contractual decisions of GBEs from justiciability under the ADJR Act. Giorgas v Federal Airports Corporation
•    Courts are reluctant to make GBEs accountable in judicial review.
•    Consider thought: corporatised and privatised GBEs continue to exercise public power
•    Domestic bodies are reviewable for PF; why shouldn’t GBEs also be?

Neat Domestic Trading Pty Ltd v AWB Limited [2003] HCA 85
See Essay

“Conduct engaged in for the purpose of making a decision”

* Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321  
Held: per Mason CJ:

PRINCIPLE: Conduct points to action taken in the decision making process and the way proceedings have been conducted as distinct from decisions made along the way or the final decision made. It is a procedural issue. It does not include findings of fact and inferences drawn from them, unless there has been a breach of procedural requirements.

•    Conduct points to an action taken rather than a decision made.  The concept of conduct looks to the way in which the proceedings have been conducted, the conduct of the proceedings, rather than decisions along the way with a view to the making of a final determination – it is essentially procedural in character. (at 341-2)
•    “A challenge to conduct is an attack upon the proceedings engaged in before the making of a decision…. In relation to conduct, the complaint is that the process of decision-making was flawed; in relation to a decision, the complaint is that the actual decision was erroneous.” (at 342)
•    “It follows, therefore, that substantive decisions, findings of fact and inferences from findings of fact generally are not capable of review
as “conduct” unless what is alleged is some breach of procedural requirements in the course of the conduct involved in the reaching the relevant conclusion, although it is possible that they may give rise to subsequent conduct which is reviewable.” (at 343)
•    Any conclusions cannot be seen as procedural; the conclusion about Bond was  not procedural as it was no more than a step in the reasoning process.

Toohey and Gaudron JJ: Only review conduct if it is conduct for the purpose of making a decision

2.    Justiciability: Decisions that courts may decline to review
•    Justiciability at general law
•    Justiciability rested traditionally upon distinction between statutory/non-stat powers and doctrine of Crown immunity.

R v Toohey (Aboriginal Land Commissioner); Ex p Northern Land Council (1981) 151 CLR 170 at 219-221 (Mason J) and 282-283 (Wilson J)  

Facts: A claim was made under the Land Rights Act for traditional Aboriginal land in Cox Peninsula NT. Commissioner held large part of this land came under a ‘town’ within the Act and could not be claimed. Administrator of NT made regulations under an Act specifying areas to be treated as towns. It was alleged that this regulation was invalid on its face or that it was made for the purpose of defeating the claim. Commissioner held that as the regulations were made by a representative of the Crown, bad faith could not be imputed to him and therefore his motives could not be called into question.

PRINCIPLE: The rule that acts of crown cannot be impugned not applicable to exercise of a statutory discretion. - Decision of the Administrator of the Northern Territory was held justiciable on the grounds of bad faith and improper purpose

Held: per MASON J:
•    The old rule was that “the King can do no wrong”.
•    Two reason tending to lead to affirmation of this principle:
1.    “prevention of unnecessary judicial intervention in the administrative process”
2.    “maintaining the secrecy of deliberations of the Crown”
•    Considering this “should the old rule be extended so as to apply to the exercise of statutory discretions? There are powerful reasons for saying “No”…the foundations on which the legal fiction was built have crumbled. It has ceased to serve a useful purpose and it is out of harmony with the current approach of courts to the review of statutory discretions”.
•    Therefore, the rule that the Crown is not subject to review does not apply to judicial review of statutory discretions of the Crown.
•    There is a difference between “the readiness of the courts to review a statutory discretion and their reluctance to review prerogative”. The refusal to review prerogatives has been explained by the “character and the subject matter” of the power.
•    Thus, Crown was reviewed under improper purpose (NB: see FAI case for review of the Crown for procedural fairness).

Council of Civil Service Unions v Minister for the Civil Service (“GCHQ Case”) [1985]
Facts: Govt Communications HQ (GCHQ) was a branch of UK public service. Function was to ensure the security of military and official communications and provide intelligence to govt. Secretary of State announced that GCHQ staff could no longer be permitted to belong to national trade unions. There had been no consultation with the employers or unions. There was a legitimate expectation that they would be consulted.

Issue: The government has prerogative powers by virtue of fact that they are the government. Is the exercise of these prerogative 'special' powers of the government amenable to judicial review?

Why they would be amenable – you need a right, interest of legitimate interest. Here there is a legitimate interest whether there's a prerogative power is neither here nor there.
Why they would not be amenable – Question at issue was national security. Ct said it brings into contrast procedural propriety and national security to which procedural propriety must yield

PRINCIPLE: When deciding whether a prerogative power is judiciable, one looks at the subject matter of the power, not its source. In matters where national security is at stake, the obligation to afford PF may be displaced and the decision wont be justiciable.

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