Phosphate Resources Limited v Commonwealth of Australia
[2001] FCA 776
•26 JUNE 2001
FEDERAL COURT OF AUSTRALIA
Phosphate Resources Limited v Commonwealth of Australia [2001] FCA 776
ADMINISTRATIVE LAW – judicial review – determination by administrator of Christmas Island of electricity fees – whether determination a decision of an administrative character
Administrative Decisions (Judicial Review) Act 1997 ss 5(1)(d), 5(1)(e)
Federal Court Rules O 20 r 2
Christmas Island Act 1958 (Cth)
Utilities and Services Ordinance 1996 (No 4 of 1996)Pearse, Delegated Legislation in Australia and New Zealand (1977)
Federal Airports Corporation v Aerolineas Argentinas (1997) 147 ALR 649 distinguished
Commonwealth v Grunseit (1943) 67 CLR 58 cited
Minister for Industry and Commerce v Tooheys Limited (1982) 42 ALR 260 citedLatitude Fisheries Pty Ltd v Minister for Primary Industry and Energy (1992) 110 ALR 209 referred to
Hamblin v Duffy (1981) 50 FLR 308 cited
Evans v Friemann (1981) 53 FLR 229 referred to
Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 referred toICI Australia Operations Pty Ltd v Blewett (1989) 19 ALD 162 cited
Sanyo Australia Pty Ltd v Comptroller-General of Customs (Davies J, 12 March 1992, unreported) cited
Bienke v Minister for Primary Industries and Energy (1994) 125 ALR 151 cited
Melbourne Pathology Pty Ltd v Minister for Human Services and Health (1996) 40 ALD 565 cited
Vietnam Veterans’ Association of Australia New South Wales Branch Inc v Cohen (1996) 70 FCR 419 referred to
Sat FM Pty Ltd v Australian Broadcasting Authority (1997) 75 FCR 604 referred to
Aerolineas Argentinas v Federal Airports Corporations (1995) 63 FCR 100 cited
Kioa v West (1995) 159 CLR 551 referred toPHOSPHATE RESOURCES LIMITED v THE COMMONWEALTH OF AUSTRALIA
W 29 of 2001RD NICHOLSON J
26 JUNE 2001
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W 29 of 2001
BETWEEN:
PHOSPHATE RESOURCES LIMITED
APPLICANTAND:
THE COMMONWEALTH OF AUSTRALIA
RESPONDENTJUDGE:
RD NICHOLSON J
DATE OF ORDER:
26 JUNE 2001
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The time within which the applicant may bring its application be extended to 2 February 2001.
2.The respondent’s motion dated 30 April 2001 be allowed.
3.The application be dismissed.
4.The applicant pay the respondent’s costs of the application.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
W 29 of 2001
BETWEEN:
PHOSPHATE RESOURCES LIMITED
APPLICANTAND:
THE COMMONWEALTH OF AUSTRALIA
RESPONDENT
JUDGE:
RD NICHOLSON J
DATE:
26 JUNE 2001
PLACE:
PERTH
REASONS FOR DECISION
The respondent moves the Court for an order that the applicant’s application for review be dismissed pursuant to O 20 r 2 of the Federal Court Rules (“FCR”). The application for review was filed on 2 February 2001. It seeks the review of a decision of the Administrator of the Territory of Christmas Island made on 22 September 1999 under s 4 of the Utilities and Services Ordinance 1996 (No 4 of 1996) (“the Ordinance”), such decision being known as the Electricity Fees Determination No 1 of the 1999 (“the Determination”).
The application as originally brought claimed that the Determination was invalid by reason of four principal matters. At the hearing, leave was given to substitute a further application alleging five grounds of invalidity. These will be examined below. The case for the applicant to extend the time within which the application may be brought is not opposed and such time should be extended.
The Determination
The Determination was made on 22 September 1999. It purported to determine the fees for the connection of electricity supply, the supply of electricity and for ancillary purposes. It contained provisions concerning eligibility for a residential tariff, for a special community service tariff and special tariffs for certain premises as well as the cost of supply tariff. It provided a period for payment and addressed issues of non-payment and rebates and reduced fees. The fees were set out in a schedule to the Determination. They appeared under three headings: Fees for connection and disconnection of electricity supply; Meter testing and Fees for supply of electricity.
The Ordinance
The arguable application of the grounds of review is to be understood by reference to the terms of s 4 of the Ordinance - and s 4(2)(b) in particular - which relevantly reads:
“4. (1) There is imposed on a person a fee in relation to:
(a)the provision, by the Administrator, of a utility to the person; or
(b)the use, by the person, of a service provided by the Administrator;
being the fee determined by the Administrator, from time to time, to be the fee applicable to the utility or service.
(2) A determination is not of effect in relation to any particular fee unless:
(a)notice of the fee is published in the Gazette; and
(b)the fee bears a reasonable relationship to the cost of supplying the utility or service to a person liable to pay the fee, or is less than the cost of supplying the utility or service to the person.
(3) A determination may, in relation to a utility or service that is supplied in different localities or in different circumstances, fix different fees.
(4)The amount of a fee is a debt due to the Commonwealth.”
Section 4 follows s 3 of the Ordinance which provides that the Administrator may make provision for the supply and use of any of certain utilities and services, included among which is electricity.
Section 5 provides:
“5. A notice under subsection 4(2) must specify a date, not being a date earlier than the date of publication of the notice, as the date on which the fee commences to apply, and may:
(a)specify the manner in which the fee is to be paid; and
(b)specify a date or period before the end of which a fee must be paid.”
The Ordinance commenced on gazettal: see Christmas Island Act 1958 (Cth) s 9(2). It was made by the Governor-General of the respondent “acting with the advice of the Federal Executive Council and purported to be made under the Christmas Island Act 1958 (Cth) (“the Christmas Island Act”).
Section 6 of the Ordinance applied ss 10, 10A, 10B and 10C of the Christmas Island Act to the Determination, as if a reference in those sections to an Ordinance were a reference to a determination.
The Christmas Island Act
The sections of the Christmas Island Act applied to the Determination appear in Div 2 of the Act. That Division is titled “Legislative Powers of the Governor-General”. Section 9 provides that subject to the act, the Governor-General may make Ordinances for the peace, order and good government of the Territory.
Section 10 provides a system for the tabling of Ordinances in Parliament. It requires that every Ordinance should be laid before each House of Parliament within 15 sitting days of that House after the day on which it is made and, if it is not so laid, it ceases to have effect. There is provision for disallowance of an Ordinance by resolution of a House whereupon the Ordinance or the part so disallowed thereupon ceases to have effect.
Section 10A contains provisions having the effect that an Ordinance is not to be re-made while it is required to be tabled. Section 10B contains provisions preventing an Ordinance being re-made while it is subject to disallowance. Section 10C contains provisions providing that a disallowed Ordinance is not to be re-made unless the resolution of the House is rescinded or it approves.
The remaining section in the Division, which is not one applied by s 6 of the Ordinance to the Determination, provides for regulations, rules and by-laws to be laid before each House of Parliament pursuant to a similar system.
Evidence
Two affidavits of the solicitor for the applicant were admitted into evidence. As a consequence there was admitted into evidence a copy of a letter dated 21 January 2000 from the Administrator to the Chief Executive Officer of the Shire of Christmas Island in relation to an account rendered to that Shire for electricity charges based on those introduced in September 1999. In that letter it was said:
“As previously explained to the Shire, the increase in electricity charges is in line with Western Power regional tariff increases for Western Australia. The application by the Christmas Island Administration of increased charges, is consistent with a Commonwealth policy that has been in place since 1994, i.e. parity with WA regional electricity tariffs. The new charges are also consistent with a national “environmental friendly” policy of “the more electricity is used, the more expensive it is.””
Also thus introduced into evidence was a copy of a letter of 26 April 2000 from the Assistant Secretary, Non Self-Governing Territories of the Commonwealth Department of Transport and Regional Services to the Chairman of the Board of Directors of the applicant company. Attached to that letter was a document entitled “Increased electricity tariffs” which was described in the letter as providing background to the application of the tariffs. The letter also referred to examination of whether or not concessional rates were available to the applicant, a matter answered in the negative.
The attachment read as follows:
“Christmas Island Power Authority (CIPA) applies Western Power regional tariffs on Christmas Island and has done since 1 January 1994 under the Energy Corporations (Powers) Act (WA) (CI). The move to Western Power regional tariffs came as part of the Law Reform process that commenced in 1992 to ensure Christmas Island customers realised the same rights and obligations as others in WA.
The Notice of change to Western Power regional tariffs was issued in Bulletin No 121 on 29 December 1993 by the Administrator pursuant to the Electricity Ordinance 1987.
Tariff structures in Regional Areas changed considerably in WA on 1 January 1999 and customers, including Phosphate Resources Ltd (PRL), to be affected by the new tariff structure were consulted individually by CIPA in April 1999.
The increase applies to large consumers only with an annual account in excess of $50,000.00. The new charges are based on an environmentally friendly policy, the objective being to encourage larger users to examine alternative options for power generation and is part of a national effort to minimise greenhouse gas emissions.
The Regional WA tariff structure introduced in January 1999 removed the R2 and P2 Tariffs, which were “Time of Use Tariff” and “Cost of Supply for Commonwealth Government instrumentalities” respectively. CIPA had no customers affected by the removal of R2 and P2.
PRL had the opportunity to negotiate high voltage and Bulk Supply Tariffs between January 1994 and January 1999. However, CIPA has indicated that it is not aware of PRL making any application for either tariff. These options now no longer exist. The Notice of Changes to the Electricity Tariff was placed in the Government Gazette No 2/99 dated 2 July 1999 to take effect 9 July 1999. This was then re-issued with a full Determination of Fees for Electricity via Government Gazette No 6/99 dated 22 September 1999.
The only tariffs applicable to PRL introduced by the Government Gazette No 6/99 are Tariff L2 General Supply Low/Medium Voltage Tariff and Tariff M2 General Supply High Voltage Tariff. To take advantage of Tariff M2, PRL would have to take ownership of all the high voltage equipment currently owned by the Commonwealth. Therefore the applicable tariff is L2 and there are no other alternative tariffs that CIPA is able to provide.”
Two further affidavits were admitted on behalf of the applicant. The first was from Mr Oxley, a consulting engineer specialising in the area of electrical power and the second from Mr Lee, the executive director of the applicant. These were directed to adducing evidence relating to the business of the applicant in the supply and delivery of electricity and to demonstrating that arguably the applicant was a party aggrieved by the making of the Determination.
Two affidavits were admitted into evidence on behalf of the respondent. The first, sworn on 30 April 2001, attests that the first affidavit filed for the applicant did no more than annex a copy of the Determination so that there was no evidence to support the application. That position changed in light of other affidavits filed on behalf of the applicant.
The second affidavit for the respondent was sworn on 16 May 2001 and attested that the nature of the discovery in getting up obligations which would be required by the proposed par 7(1) of the minute of proposed amended application and pars 7(1) and (2) of the application for review would be “extremely burdensome”.
Application for review
The substituted further amended application for review is brought in reliance upon s 5 of the ADJR Act.
It seeks to invoke the provisions of s 5(1)(d) or (e) of the Administrative Decisions (Judicial Review) Act 1997 (“the ADJR Act”) which relevantly reads:
“5 (1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds:
(a)…
(b)…
(c)…
(d)that the decision was not authorized by the enactment in pursuance of which it was purported to be made;
(e)that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;
(f)
(g)…
(j) …
(2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:
(a)taking an irrelevant consideration into account in the exercise of a power;
(b)failing to take a relevant consideration into account in the exercise of a power;
(c)an exercise of a power for a purpose other than a purpose for which the power is conferred;
(d) an exercise of a discretionary power in bad faith;
(e)an exercise of a personal discretionary power at the direction or behest of another person;
(f)an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;
(g)an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;
(h)an exercise of a power in such a way that the result of the exercise of the power is uncertain; and
(j)any other exercise of a power in a way that constitutes abuse of the power.”
For s 5 to apply it is necessary that:
(1)the applicant be “a person who is aggrieved”
(2)the aggrievance arose from a decision to which the ADJR Act applies
(3)one or more of the grounds of review relied upon is made out
In light of the affidavit evidence now brought for the applicant the case for the respondent does not contest that the applicant is arguably a person aggrieved.
Section 3(1) of the ADJR Act defines “decision to which this Act applies” to mean:
(a)a decision of “an administrative character”
(b)made under an “enactment”
which is not a decision included in any of the classes of decisions set out in sch 1 to the ADJR Act.
Section 3(1) provides that “enactment” relevantly means an ordinance of a Territory other than the Australian Capital Territory or the Northern Territory and hence includes an ordinance of Christmas Island. Schedule 1 excludes in par (g) decisions under a provision of the law of Western Australia as enforced in the Territory of Christmas Island under s 8A of the Christmas Island Act 1958 (Cth) except decisions of a person holding or exercising the powers of the office of Administrator or Deputy Administrator of the Territory under the Administration Ordinance 1968 of the Territory of Christmas Island. The respondent does not contest that the decision was made under an enactment not so excluded.
Whether decision is of an administrative character
The essence of the respondent’s case on the motion is that, as the decision in the present case (the making of the Determination) was of general application to electricity consumers on Christmas Island, it had the effect of replacing the pre-existing tariff and was subject to parliamentary disallowance, it was of a legislative rather than an administrative character.
Prior authorities
The principles applicable to the determination of whether a decision is legislative or administrative have been dealt with in a number of cases and possibly nowhere more succinctly and to the point than in the judgment of Lehane J in Federal Airports Corporation v Aerolineas Argentinas (1997) 147 ALR 649 at 656 – 658, with which Beaumont and Whitlam JJ agreed.
The broad distinction and the general one usually drawn between legislative and administrative acts is that “legislation determines the content of a law as a rule of conduct or a declaration as to power, right or duty whereas executive authority applies the law in particular cases”: Commonwealth v Grunseit (1943) 67 CLR 58 at 82; Minister for Industry and Commerce v Tooheys Limited (1982) 42 ALR 260 at 265.This approach is followed in defining the nature of delegated legislation such as regulations or by-laws: DC Pearse, Delegated Legislation in Australia and New Zealand (1977) pp 1-2 considered in Latitude Fisheries Pty Ltd v Minister for Primary Industry and Energy (1992) 110 ALR 209 at 228 – 9.
In Hamblin v Duffy (1981) 50 FLR 308, Lockhart J, at 314, said that the expression “decision of an administrative character” is incapable of precise definition. However, he considered it included at least the application of a general policy or rule to particular cases. Additionally, he said that the phrase suggested to him that the ADJR Act “looks more to the nature or character of the decision itself than to the person or body making the decision” although “the identity of the particular person or body must be relevant”. Fox ACJ in Evans v Friemann (1981) 53 FLR 229 at 236 was also of the view that “it is the character of the particular decision which is to be examined.” He considered that the ADJR Act being a remedial one, it was appropriate to give it as reasonably as possible a wide construction and application and so not to engage in a closely analytical examination of each decision. However, as was stated by Gummow J in Queensland Medical Laboratory v Blewett (1988) 84 ALR 615 at 635 “it is difficult to see how a sufficient distinction between legislative and administrative acts is that between the creation or formulation of new rules of law having general application and the application of those general rules to particular cases” when a norm, though not of general application, may nevertheless qualify as a law. In that case Gummow J stated the proposition that to take a step “which has the immediate effect of changing the content of a law as a rule of conduct or declaration of power, right or duty to act legislatively”: Blewett.
It is equally clear that the matter will not be determined by general tests and that what is necessary is a close examination of the particular provisions and the particular circumstances in issue. In Blewett the substitution of a new table of benefits for the table set out in a schedule to the Health Insurance Act 1973 (Cth) effected a result which was as if the schedule had been changed by an amending statute (but subject to the procedures for Parliamentary disallowance of the determination as provided for in the Health Insurance Act) so that the action was legislative rather than administrative in character.
In Federal Airports the Full Court was required to consider the determination of an aeronautical charge pursuant to s 56 of the Federal Airports Corporation Act 1986 (Cth) which read:
“56(1) In this section
“aeronautical charge” means a charge for, or in respect of:(a)the use by an aircraft of a Federal airport; or
(b)services or facilities provided by the Corporation;
and, without limiting the generality of the foregoing, includes:
(c)a charge for the landing or parking of an aircraft at a Federal airport;
(d)a charge relating to the embarkation or disembarkation of aircraft passengers at a Federal airport; and
(e)a charge relating to the handling of cargo carried on an aircraft;
but does not include any charge made under, or because of, a contract, a lease, a licence, or an authority, in writing under the common seal of the Corporation;
“Federal airport” includes a jointly used area.
(2)Subject to this section, the Corporation may, from time to time, make determination fixing or varying aeronautical charges and specifying the persons by whom the charges are payable and the times when the charges are due and payable.
(2A) This section has effect subject to the Prices Surveillance Act 1983.”
A determination made in 1991 provided:
“In accordance with s 56 of the Federal Airports Corporation Act 1986, the Federal Airports Corporation makes the following determination.
1.This determination shall operate on and from 1 July 1991 and amends the determination made in March 1991 which commenced to operate on and from 1 April 1991.
2.The determination made in March 1991 is hereby amended by inserting the following paragraph immediately after para 5 of that determination:
“5A. In addition to the charges set out in paras 3, 4 and 5 above, a charge per landing at Brisbane (Eagle Farm), Sydney (Kingsford-Smith), Melbourne (Tullamarine), Adelaide, Perth, Hobart, Coolangatta, Launceston, Darwin, Alice Springs and Townsville airports of $0.60 per 1000kg of aircraft weight and pro-rata for part of 1000kg for all fixed wing aircraft weighing more than 20,000kg.””
As described by Lehane J with the agreement of the other members of the Full Court, the effect of the 1991 determination was “simply to add, to aeronautical charges already made, a charge per landing at the particular airports mentioned in the new para 5A for fixed wing aircraft weighing more than 20,000kg”.
In determining that the 1991 determination was administrative in character the Full Court took into account that the corporation carried on a business undertaking, albeit a government enterprise, the conduct of which was in significant respects subject to ministerial direction. The consequence was that the charges were essentially to be fees for services and to bear a reasonable relationship to the cost to the corporation of providing those services. The result was that the 1991 determination was made in the course and for the purpose of the commercial operation of the corporation; that is, in the execution or administration of the Federal Airports Corporation Act. The fact that such charges were subject to scrutiny under the Prices Surveillance Act was significant only that it reinforced the view as to the character of the charges. The fact that other charges could be fixed by by-laws or regulations was considered by the Full Court to be of little significance.
There are prior decisions of single judges of this Court decided prior to the judgment in Federal Airports in which it was held that the decision in question was not administrative and therefore was reviewable under the ADJR Act: ICI Australia Operations Pty Ltd v Blewett (1989) 19 ALD 162; Sanyo Australia Pty Ltd v Comptroller-General of Customs (Davies J, 12 March 1992, unreported); Bienke v Minister for Primary Industries and Energy (1994) 125 ALR 151; and Melbourne Pathology Pty Ltd v Minister for Human Services and Health (1996) 40 ALD 565. There are further decisions.
The first is a decision of Tamberlin J in Vietnam Veterans’ Association of Australia New South Wales Branch Inc v Cohen (1996) 70 FCR 419. There it was contended on behalf of the Repatriation Commission that the Court had no jurisdiction to review two determinations by the Repatriation Medical Authority of two Statements of Principles made pursuant to powers conferred by the Veterans Entitlements Act 1986 (Cth) or to review two declarations made by the Specialist Medical Review Council arising from a review of the Statements. The ground of objection was that the determinations by the Authority of the Statements were legislative and not administrative in character so that no jurisdiction to review them arose pursuant to the ADJR Act. Similar contentions were made in relation to the declarations. Tamberlin J concluded that the Statement and the Declarations were legislative and not administrative in nature. He found them to have binding legal effect and to be designed to apply generally to claims relating to pensions. He considered they satisfied the criteria for a legislative act in that they changed or determined the content of law, had a binding quality and were of general application.
In Sat FM Pty Ltd v Australian Broadcasting Authority (1997) 75 FCR 604, Sundberg J upheld an objection to the competency of review under the ADJR Act of a decision of the Australian Broadcasting Authority that no additional commercial FM radio broadcasting services would be made available in the Kalgoorlie licence area. He considered that the decision under attack was not of an administrative character. His reasons for so concluding included reference to the following factors:
(a)The licence area plan created new rules of general application rather than applied such rules to a particular case to a particular broadcaster.
(b)There was a requirement that the plan was to be notified in the Gazette. This was an indicia of legislative character: Pearce, Delegated Legislation (1977) p 63; Federal Airports at first instance as Aerolineas Argentinas v Federal Airports Corporations (1995) 63 FCR 100 at 109; Vietnam Veterans at 428.
(c)A requirement for wide public consultation in preparing the plan.
(d)Requirements to have regard to wide policy considerations in preparing the plan.
(e)Power in the Authority to vary the plan. Analogist to a legislature’s power to amend.
(f)Preclusion of executive variation or control once made.
(g)Absence of review of the plan by the Administrative Appeals Tribunal.
(h)The binding legal effect of the plan once prepared in a sense that various statutory provisions are only enlivened following its preparation.
He considered that not all the above considerations were of equal weight but their combined effect persuaded him that the decision was not of an administrative character.
Administrative or legislative ?
The starting point here is the Determination. It fixes fees and determines eligibility for certain tariffs. For the respondent it is submitted that the making of the Determination was a “step which has the immediate effect of changing the content of a law as a rule of conduct or declaration of power, right or duty” and so to act legislatively” Blewett at 635 per Gummow J. For the applicant it is submitted that the Determination does not change the law because all that is changed is the quantum of fees.
In Kioa v West (1995) 159 CLR 551 at 584 Mason J said:
“The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.
…
Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way. Thus a decision to impose a rate or a decision to impose a general charge for services rendered to ratepayers, each of which indirectly affects the rights, interests or expectations of citizens generally does not attract this duty to act fairly. This is because the act or decision which attracts the duty is an act or decision:“…which directly affects the person (or corporation) individually and not simply as a member of the public or a class of the public. An executive or administrative decision of the latter kind is truly a ‘policy’ or ‘political’ decision and is not subject to judicial review.”
(Salemi [No 2] v MacKellar (1977) 137 CLR 396 at p 452 per Jacobs J)”
This passage is supportive of the view the Determination, as the means of imposing a rate or general charge, does not affect the person (or corporation) individually and is of a policy or political character; hence, more likely to be legislative.
It is said of the Determination that “the increase applies to large consumers only with an annual account in excess of $50,000.00.” It is not apparent from a reading of the Determination that it is so limited by its own terms. Assuming it to be so, it would apply to a limited portion of the public, namely those coming within the described class from time to time. Nevertheless, in imposing a rate or general charge it is indirectly affecting the rights and interests of citizens but not directly affecting persons (or corporations) individually and not simply as a member of the public or a class of the public.
Furthermore, the Determination did not just fix the quantum of fees and levy rates. It additionally determined the entitlement of eligibility of classes of person to categories of tariffs and rebates. Those prescriptions are rules of general conduct creating rights in the persons to whom they apply.
The next point of reference is the nature of the business in relation to which the fees have been determined. Electricity is one of the utilities and services which the Administrator of Christmas Island may make provision for pursuant to the Ordinance. It is the case, as the reasons in Federal Airports pointed out at 657/45, that the corporation there carried on a business undertaking, albeit a government enterprise, and subject in significant respects to ministerial direction. However, additionally it was expected to earn a reasonable return on its assets, to pay reasonable dividends and to perform its functions in accordance with sound commercial practice, having a commercial plan including financial targets and performance indicators. There are none of those indicia present in relation to the utility and service involving the supply of electricity on Christmas Island. In short, there is not here present the indicia of Parliamentary intention that the utility should, in addition to being a Government undertaking, be a commercial one. That is of significance because the ultimate reasoning of the Court in Federal Airports at 658/20 was that the determination made by the corporation in that case was for the purpose of its commercial operation. There is not present here the evidence to enable such a conclusion to be reached in relation to the utility and service of the provision of electricity so Federal Airports may be distinguished on that ground.
A further point of reference to the issue of characterisation arises from the provisions of s 4(2) of the Ordinance setting the conditions relating to the making of a determination. The first of these is that notice of the fees should be published in the Gazette. That was a factor relied upon by Sundberg J in Sat FM at 608/c on the basis that publication is suggestive of legislative character. In Federal Airports at 658/37 – 40 reliance was placed on the fact that determinations under s 56 of the Federal Airports Corporation Act were not subject to gazettal.
The second requirement of s 4(2) is that which appears in par (b) requiring the reasonable relationship of fee to cost of supply. For the applicant it is contended that the provisions of s 4(2)(b) show that the determination is an executive act because the paragraph introduces an administrative element requiring a calculation of the reasonable relationship between fee and cost. That requirement of proportionality was also present in the circumstances in Federal Airports: 658/13 – 15. However, it was not considered by the Full Court to be a determinative factor.
The next principal consideration here is the effect on the question of characterisation arising from the provisions of s 6 of the Ordinance applying the tabling and disallowance procedures to the notice. In Federal Airports at 658/37 it was also considered significant that, in contrast to the circumstances in the Federal Airports case itself, Parliamentary disallowance was applicable to by-laws and regulations. Such procedural requirement introduces an element of public consultation and notice to the procedures applicable to the making of the Determination. It is supportive of it being legislative rather than administrative in character. Indeed, the involvement of the legislature in relation to a disallowance of a notice and hence the Determination invokes a public proceeding of wide consequence. Not only does it draw public attention to the making of the notice but it applies legal provisions which have the effect of preventing the re-making of the Determination until the provisions have been complied with. That is entirely uncharacteristic of an administrative act: cf Bienke at 162.
There was a suggestion on behalf of the applicant that if the Determination had been made otherwise than in the legislative setting applicable to Christmas Island, it would have simply substituted a schedule in the same manner as in Blewett. However, the applicant subsequently declined to support with any further submissions the suggestion that any special considerations arose from the status of Christmas Island.
I accept the submissions for the applicant that regard must be had to the approach sanctioned by the Court in Friemann and that regard should be had to the statement by Sundberg J in Sat FM at 609 that not all considerations are of equal weight.
Nevertheless, I consider that the combined effect of all the considerations referred to above is that the Determination is legislative and not administrative in character.
Conclusion
For these reasons I conclude that the respondent’s motion for dismissal of the application should be allowed and the application dismissed with costs. That, of course, says nothing in relation to any remedies which may be available to the applicant outside the ADJR Act.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson. Associate:
Dated: 26 June 2001
Counsel for the Applicant: Mr AH Zilko Solicitor for the Applicant: Huston Partners Counsel for the Respondent: Mr AA Jenshel
with Ms M LindleySolicitor for the Respondent: Australian Government Solicitor Date of Hearing: 17 May 2001 and 13 June 2001 Date of Judgment: 26 June 2001
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