Attorney-General (Cth) v Alinta Ltd

The High Court of Australia heard an appeal from the Full Court of the Federal Court of Australia concerning the constitutional validity of section 657A(2)(b) of the *Corporations Act 2001* (Cth). The dispute centred on whether this provision, which empowers the Takeovers Panel to declare circumstances unacceptable if they constitute a contravention of specific chapters of the Act, involved an unlawful exercise of the judicial power of the Commonwealth by the Panel. The Full Court had found the provision invalid on this ground, reversing a decision of a single judge.

The primary legal issue before the High Court was whether section 657A(2)(b) of the *Corporations Act* purported to confer the judicial power of the Commonwealth on the Takeovers Panel, thereby contravening Chapter III of the Constitution. This required the Court to consider the nature of the Panel's functions, particularly whether they involved the resolution of existing rights and obligations or the creation of new ones, and the relevance of the scope of its remedial powers and the requirement to consider public interest and policy considerations.

The High Court reasoned that the impugned provision did not confer the judicial power of the Commonwealth on the Takeovers Panel. While acknowledging that the Panel's powers had been expanded and that its orders could resemble judicial remedies, the Court found that the Panel's function was not to adjudicate on existing legal rights in the manner of a court. The Court noted that the Panel's power to make declarations was contingent on its assessment of whether circumstances were "unacceptable" having regard to statutory criteria and public interest considerations, rather than a determination of a contravention in the traditional judicial sense. Furthermore, the Court observed that the Panel's orders were not directly enforceable without recourse to the courts, distinguishing its role from that of a judicial body.

The High Court allowed the appeal, setting aside the declaration of invalidity made by the Full Court. It substituted an order declaring that section 657A(2)(b) of the *Corporations Act 2001* (Cth) is not invalid on the ground that it purports to confer the judicial power of the Commonwealth on the Takeovers Panel.