Registrar of Motor Vehicles v Lawson - [2017] SASCFC 88

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
REGISTRAR OF MOTOR VEHICLES v LAWSON
[2017] SASCFC 88
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Stanley and The Honourable Justice Nicholson)
2 August 2017
TRAFFIC LAW - LICENSING OF DRIVERS - SOUTH AUSTRALIA - GENERALLY
ADMINISTRATIVE LAW - JUDICIAL REVIEW - REVIEWABLE DECISIONS AND CONDUCT - DECISIONS TO WHICH JUDICIAL REVIEW LEGISLATION APPLIES - DECISIONS UNDER AN ENACTMENT
Appeal against a decision of a Judge of the District Court.
The respondent was an authorised examiner for the purposes of conducting practical driving tests pursuant to s 79A(1)(a)(iii) of the Motor Vehicles Act 1959 (SA)(MVA). When a delegate of the Registrar of Motor Vehicles (the Registrar) revoked his status as an authorised examiner, the respondent sought a review of the decision pursuant to s 98Z of the MVA. According to s 98Z, a person aggrieved by a decision of the Registrar made under Part 2,3,3A, 3C or 3D of the MVA may apply for a review of that decision. Section 98ZA allows for an appeal to the District Court against any s 98Z review.
The Registrar refused the review on the basis that the decision to revoke the respondent’s authorised examiner status was not made under any of the relevant Parts. The respondent appealed against that decision to the District Court pursuant to s 98ZA of the MVA. The Registrar challenged the Court’s jurisdiction to hear the appeal. The Judge found that the power to appoint an authorised examiner was contained in s 7, which is in Part 2 of the MVA, thereby the Court had jurisdiction and the decision was reviewable.
The appellant appeals to this Court on the grounds that the Judge erred and that the power is contained in Part 1 of the Act. The Registrar also contends that the appointment was not a ‘decision’ made under the relevant parts of the MVA as appointments as authorised examiners are a preliminary step to the grant of a driver’s licence.
Held per Kourakis CJ (Stanley and Nicholson JJ agreeing), dismissing the appeal:
1. Section 79A of the MVA, by necessary implication, empowers the Registrar to approve a person to be an authorised examiner. Section 79A is contained in Part 3 of the MVA and a decision made pursuant to that section is reviewable (at [16], [20]).
2. The decision to revoke Mr Lawson’s authorisation as an authorised examiner was a ‘decision’ made under an enactment, specifically the MVA, and affected his legal rights to act as an authorised examiner (at [38], [43], [45]).
3. The decision to revoke Mr Lawson’s authorisation was a reviewable decision for the purposes of s 98ZA of the MVA (at [47]).
Corporations Act 2001 (Cth) s 569B; Law of Property Act 1936 (SA) s 24D; Motor Vehicles Act 1959 (SA) ss 5, 7, 79, 98Z, 98ZA; Public Sector Act 2009 (SA) s 30, referred to.
Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628, applied.
Alaeddin v The Registrar of Motor Vehicles [2011] SASC 72, distinguished.
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Australian National University v Burns (1982) 64 FLR 166; Australian National University v Lewins (1996) 68 FCR 87; General Newspapers Pty Ltd v Telstra Corporation (1993) 45 FCR 164; Griffith University v Tang (2005) 221 CLR 99; Saraceni v Australian Securities and Investment Commission [2012] FCA 688, discussed.
Moreton Bay Regional Council v Mekpine Pty Ltd (2016) 256 CLR 437, considered.

REGISTRAR OF MOTOR VEHICLES v LAWSON
[2017] SASCFC 88
Full Court: Kourakis CJ, Stanley and Nicholson JJ

KOURAKIS CJ: On 28 October 2015 the respondent, Mr Lawson, was appointed, purportedly pursuant to s 5 of the Motor Vehicles Act 1959 (SA) (MVA), by the Registrar of Motor Vehicles (the Registrar) as an authorised examiner for the purposes of conducting practical driving tests pursuant to s 79A(1)(a)(iii) of the MVA. On 22 March 2016 a delegate of the Registrar notified Mr Lawson that his appointment as an authorised examiner would be revoked, effective from 1 April 2016.
Section 98Z of the MVA provides that a person aggrieved by a decision of the Registrar made under Part 2, 3, 3A, 3C, or 3D of the MVA may, within one month of the making of the decision, apply to the Registrar for a review of that decision. Mr Lawson’s application pursuant to s 98Z of the MVA to the Registrar for a review of the delegate’s decision was refused on the ground that it was not a decision made under one of those specified Parts and was therefore not a reviewable decision. Section 98ZA provides that a person dissatisfied with a decision as confirmed, varied or substituted by the Registrar pursuant to s 98Z, may appeal to the District Court against the decision.
On 2 June 2016 Mr Lawson appealed to the District Court against the revocation of his appointment as an authorised examiner and against the Registrar’s refusal to review that revocation pursuant to s 98Z of the MVA. The Registrar brought an interlocutory application challenging the jurisdiction of the District Court to entertain Mr Lawson’s appeal. A Judge held that the District Court had jurisdiction. The question before the Judge, and now on the appeal to this Court against that decision, is whether the appointment or revocation of a person as an authorised examiner is made under one of the Parts of the MVA specified in s 98Z.
The Judge found, and Mr Lawson contends, that decisions to appoint or revoke an authorised examiner are made pursuant to s 7 of the MVA which is in Part 2 of the Act and that the decision to revoke was appellable. The Registrar contends that decisions to appoint or revoke the appointment of an authorised examiner are made pursuant to the dictionary definition of authorised examiner found in Part 1, s 5 of the MVA and is therefore not appellable.
The substantive function of an authorised examiner is related to the grant of a driver’s licence which is governed by Part 3 of the MVA. For the reasons which follow, I hold that the appointment of an authorised examiner is made pursuant to an implied power, located in Part 3 of the MVA, in order to give effect to the scheme for the grant of drivers’ licences established by that Part.
On the appeal the Registrar seeks to put a further contention against the District Court having jurisdiction. The Registrar contends that the appointment was not a ‘decision’ made under a relevant part of the MVA for the purposes of ss 98Z and 98ZA because appointments of authorised examiners are preliminary steps to the grant of a driver’s licence, and therefore that appointment is a voluntary arrangement which is effected independently of the MVA. The Registrar’s further contention should be entertained even though it was not advanced before the Judge because it is a question of law which falls to be determined as a matter of statutory construction and cannot be affected by any evidence. However, the contention should be rejected because the decision to revoke Mr Lawson’s status as an authorised examiner is a final decision in its effect on his right to so act and he is therefore a person aggrieved by it. Moreover, the Registrar has no power other than that conferred by the MVA to appoint authorised examiners and is impliedly bound by the MVA to appoint only persons who are fit to conduct the practical driving test.
The District Court therefore has jurisdiction and the Registrar’s appeal must be dismissed. I elaborate on my reasons below.
The Statutory Provisions
Section 5 of the MVA relevantly provides:
authorised examiner means—
(a)a police officer appointed by the Commissioner of Police for the purpose of conducting practical driving tests; or
(b)a person appointed by the Registrar for the purpose of conducting practical driving tests; or
(c)a person appointed by some public authority, and approved by the Registrar, for the purpose of conducting practical driving tests;
…
practical driving test, in relation to a person applying for a licence, means a test approved by the Registrar as a practical driving test in relation to a class of licence to which the licence sought by the person belongs.
Section 79A of the MVA provides:
79A—Driving experience
(1)Subject to subsection (2), the Registrar must not issue a licence to an applicant who has not held a licence at some time during the period of 5 years immediately preceding the date of the application unless—
(a)     the applicant—
(i)has held a learner’s permit—
…
(ii)has produced to the Registrar a logbook that—
(A)is in a form approved by the Registrar; and
(B)has been completed in accordance with the instructions contained in the logbook so as to verify that the applicant has satisfied the prescribed requirements relating to the applicant’s driving experience; and
(iia)has produced to the Registrar a certificate signed by a tester certifying that the applicant has, in the manner required by the Registrar, passed a hazard perception test conducted by the tester; and
(iii)has produced to the Registrar a certificate signed by an authorised examiner certifying that the applicant has passed a practical driving test conducted by the examiner; or
(b)     the applicant satisfies the Registrar by such evidence as the Registrar may require that—
(i)the applicant has at some time during the period of 5 years immediately preceding the date of the application held—
(A)an interstate licence; or
(B)a foreign licence of a type approved by the Registrar by notice in the Gazette; or
(ii)the applicant—
(A)has at some time held a licence issued under this Act, an interstate learner’s permit, an interstate licence or a licence issued under the law of some other place outside this State; and
(B)has obtained satisfactory driving experience.
…
(4)In this section—
…
hazard perception test means a test approved by the Registrar as a hazard perception test for the purposes of this Act;
tester means—
(a)     a police officer; or
(b)     a person appointed by the Registrar as a tester for the purposes of conducting a hazard perception test.
(emphasis added)
I make the following observations about s 79A of the MVA. First, the manifest purpose of s 79A of the MVA is to ensure that a holder of a learner’s permit is not issued a driver’s licence until he or she can drive safely without supervision. To that end, s 79A of the MVA requires the holder of a learner’s permit to first acquire sufficient driving experience, demonstrate a satisfactory level of perceptual acuity, and pass a practical test of his or her ability to drive safely and in accordance with the rules of the road. Secondly, the Registrar has the ultimate responsibility under s 79A of the MVA for the issuing of drivers’ licences and therefore for prescribing precisely how those competencies will be demonstrated. The Registrar therefore is empowered to approve the form of log book, [1] and the nature of the hazard perception and practical driving tests. Thirdly, plainly enough, having regard to the number of applicants for driver’s licences in South Australia, the Registrar could not directly satisfy himself or herself of those matters for each and every applicant. Provision is therefore made by the section for a ‘tester’ to certify that the holder of the learner’s permit has passed the hazard perception test, and a police officer or authorised examiner to certify that the applicant has passed the practical driving test. Tester is defined by s 79A of the MVA to mean any police officer, without requiring any prior approval or appointment by the Registrar, or a person appointed by the Registrar as a tester.[2] Finally, I observe that a tester under either section may be a Deputy Registrar, another officer of the Department of Motor Vehicles, or a private person.
[1] Regulation 47 of the Motor Vehicles Regulations 2010 prescribes the number of hours of experience.
[2] A similar scheme applies to the grant of a learner’s permit pursuant to s 79 of the MVA. A police officer or a tester, being a person appointed by the Registrar as a tester for the purposes of conducting the prescribed theoretical test pursuant to s 79 of the MVA may also certify that an applicant has passed that test.
It should be noted that s 79A(1)(b) of the MVA provides an alternative path for issue of a driver’s licence for persons holding an interstate or foreign driver’s licence. For the latter, the applicant must have held a foreign licence of a type approved by the Registrar by notice in the Gazette. That is an example of the conferral of an express power on the Registrar.
Section 7 of the MVA provides:
7—Registrar and officers
(1)The Governor may appoint a Registrar of Motor Vehicles and such deputy registrars of motor vehicles as the Governor considers necessary for the administration of this Act.
(2)A deputy registrar may, subject to and in accordance with any directions given by the Registrar, act on behalf of the Registrar—
(a)     during the absence of the Registrar;
(b)     at any time in any matters allotted to the deputy registrar by the Registrar.
(4)The Registrar may delegate any of his or her powers or functions under this Act or any other Act to—
(a)     a person for the time being occupying a specified office or position; or
(b)     a specified person or specified body of persons that, in the opinion of the Registrar, has appropriate qualifications or experience to exercise the relevant powers or functions.
(5)A power or function delegated under this section may, if the instrument of delegation so provides, be further delegated.
(6)A delegation under this section—
(a)     must be by instrument in writing; and
(b)     may be absolute or conditional; and
(c)     does not derogate from the power of the delegator to act in any matter; and
(d)     is revocable at will by the delegator.
(7)A person to whom a power or function is delegated under this section must not contravene, or fail to comply with, a condition to which the delegation is subject.
...
The Power Conferred by the MVA – Part 2 or 3?
It is convenient to deal firstly with Mr Lawson’s contention that the power to appoint an authorised examiner is conferred on the Registrar by s 7 of the MVA. I reject that contention. Section 7 confers on the Governor a power to appoint the Registrar and Deputy Registrars who will administer the Act. It does not, however, confer any power to do any act or thing, or any particular authority on those office holders. It assumes the conferral of powers or functions on those office holders by other provisions of the MVA. It is for that reason that s 7 of the MVA empowers the appointment of sufficient officers to exercise those powers and perform the associated functions.
Part 2 is one of the Parts of the MVA specified as reviewable in s 98Z of the MVA. However, it does not follow that all of the provisions of Part 2 confer a power to make a reviewable decision. The decisions in Part 2 which may be reviewed are those made pursuant to Divisions 2-11. By way of example, those Divisions deal with the registration of vehicles generally and authorise the Registrar to grant various permits and reduce fees in certain circumstances. Part 2 was only included within the scope of the review provisions of the MVA on the enactment of those Divisions. Accordingly, the inclusion of Part 2 in ss 98Z and 98ZA of the MVA has work to do outside of the premise that s 7 of the MVA confers any powers on the Registrar.
Moreover, many of the provisions of the MVA expressly confer powers on the Registrar.[3] It cannot be contended that s 7 of the MVA is a source of power to make those decisions. Retreating from that unsustainable proposition, Mr Lawson contended in the alternative that s 7 of the MVA conferred the power to discharge the functions impliedly conferred by the MVA. However, that submission too must be rejected. The better construction is that a provision which impliedly confers a function also confers the power to perform it.
[3] For example ss 16, 20, 21, 22, 23, 55A, 62, 75, 75AAA.
I turn to the definition of authorised examiner and its place within the scheme enacted by s 79A of the MVA. The definitions found in s 5 of the MVA must be read into the substantive provisions of the MVA. In particular, the definitions of authorised examiner and practical driving test must be read into s 79A of the MVA. When that is done, it is plain that s 79A, by necessary implication, empowers the Registrar to approve a practical driving test and to appoint a person to be an authorised examiner. The power is necessary in order to make s 79A of the MVA effective. The power is implied for authorised examiners in the same way as it must be for testers, who are defined within s 79A of the MVA itself. Section 79A of the MVA must include an implied power on the part of the Registrar to appoint a tester if paragraph (b) of the definition of tester in s 79A of the MVA is to have any effect. So too for the definition of authorised examiner written into s 79A by s 5 of the MVA.
If there were no express definition of authorised examiner, it would be a necessary implication of s 79A of the MVA that the Registrar could appoint a person to be an authorised examiner unless the Regulations made under the MVA provided otherwise.
It is convenient to observe here, even though it relates to the Registrar’s additional contentions, that the definitions of tester and authorised examiner do more than refer to the approval by the Registrar as a mere factum on which s 79A of the MVA operates. The Registrar is not free to appoint any person to be a tester or authorised examiner. The persons appointed must be fit and proper persons to perform the statutory function. The determination of that issue must be made pursuant to, and in accordance with, the considerations impliedly prescribed by the MVA.
In Alaeddin v The Registrar of Motor Vehicles (Alaeddin),[4] Gray J considered the power to appoint and revoke the appointment of an authorised examiner:
[50]I turn now to the Registrar’s submissions. Although it is problematic to rely on section 5 of the Motor Vehicles Act as the source of statutory power as section 5 is the interpretation section in the Act, I accept the Registrar’s submission that the definition of authorised examiner in section 5 implies that the Registrar has the power to appoint authorised examiners. The existence of such a power is recognised by regulation 93 of the Motor Vehicles Regulations, which relevantly provide: ‘[t]he Registrar may, when appointing a person as an authorised examiner…’. In my view, it is implicit that Parliament intended for the Registrar to have a power to appoint authorised examiners. By virtue of section 36 of the Acts Interpretation Act, the power to appoint includes the power to suspend. In addition, it is my view that it is implicit that the power to appoint includes the power to set conditions and deal with necessary and incidental matters to the power of appointment. These matters, in the ordinary course, would deal with conditions of revocation, suspension and variation of the appointment.
[51]Therefore, I am of the view that the suspension of the authorised examiner endorsements on Mr Alaeddin’s Motor Driving Instructor licence was not ultra vires.
(citations omitted)
[4] [2011] SASC 72 at [50]-[51].
The decision in Alaeddin is not authority for the proposition that s 5 itself confers the power. Properly understood, that passage holds that s 5 of the MVA is premised on the existence of the power. That is plainly right. For the reasons I have given, that implied power is located in s 79A of the MVA. Section 79A is contained in Part 3 of the MVA therefore I also find, subject to further discussion below, that a decision to authorise to revoke a person’s status as an authorised examiner is reviewable pursuant to s 98Z of the MVA.

The approach I have adopted is consistent with the decision of the High Court in Gibb v Federal Commissioner of Taxation (Gibb).[5] In Gibb, the Commissioner of Taxation had construed the word income by reference to the definition of dividend in the dictionary of the Income Tax and Social Services Contribution Assessment Act 1936-1961 (Cth) (the Act). The Commissioner had reasoned that because a dividend, in its ordinary meaning, is income, all distributions falling within the extended definition must be treated as income as that word was used in the Act. The dictionary definition could only be used, or inserted, in place of provisions of the Act which the word ‘dividend’ in those provisions of the Act was used.
[5] (1966) 118 CLR 628.
In Gibb, Barwick CJ, McTiernan and Taylor JJ said:[6]
The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense – or are to be taken to include certain things which, but for the definition, they would not include. Such clauses are, therefore, no more than an aid to the construction of the statute and do not operate in any other way.
[6] (1966) 118 CLR 628 at 635; also see Randwick Municipal Council v Rutledge (1959) 102 CLR 54 at 69 per Windeyer J, Hurstville City Council v Hutchison (2003) 200 ALR 308 at [63] per Mason P.
In this case, reference was also made before the Judge and on appeal to Moreton Bay Regional Council v Mekpine Pty Ltd.[7] In that case the High Court held that the definition of the term ‘common area’ in the dictionary of a statute regulating retail shop leases applied only to the use of that term in the statute and could not, without more, be taken to have been legislatively written into all retail shop leases.[8] That holding is, with respect, plainly right but it does not touch on the question of construction raised on this appeal.
[7] (2016) 256 CLR 437.
[8] (2016) 256 CLR 437 at 451, [61], per French CJ, Kiefel, Bell and Nettle JJ.
Decision under an enactment
The Registrar submits that if the power or function to appoint an authorised examiner is located in s 79A of the MVA, the appointment nonetheless is not a decision which is reviewable pursuant to ss 98Z and 98ZA of the MVA.
In Australian Broadcasting Tribunal v Bond (Bond),[9] Mason CJ, after referring to the specific provisions of the Administrative Decision (Judicial Review) Act 1977 (Cth) (the ADJR Act) and to the policy considerations affecting the construction of that originating and comprehensive scheme for judicial review of government administrative actions, said:[10]
The policy arguments do not, in my opinion, call for an answer different from that dictated by the textual and contextual considerations. That answer is that a reviewable ‘decision’ is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.
Another essential quality of a reviewable decision is that it be a substantive determination. With the exception of s. 3(2)(g), the instances of decision mentioned in s. 3(2) are all substantive in character. Moreover, the provisions in sub-ss. (1), (2), (3) and (5) of s. 3 point to a substantive determination. In this context the reference in s. 3(2)(g) to ‘doing or refusing to do any other act or thing’ (emphasis added) should be read as referring to the exercise or refusal to exercise a substantive power. I do not perceive in s. 16(1)(b) or in par. (e) of Sched. 1 or par. (a) of Sched. 2 to the A.D.(J.R.) Act any contrary implication. These exclusions from the A.D.(J.R.) Act or from s. 13 appear to have been introduced for more abundant caution and it would be unwise to take too much from them.
If ‘decision’ were to embrace procedural determinations, then there would be little scope for review of ‘conduct’, a concept which appears to be essentially procedural in character. To take an example, the refusal by a decision-maker of an application for an adjournment in the course of an administrative hearing would not constitute a reviewable decision, being a procedural matter not resolving a substantive issue and lacking the quality of finality. Then it is the ‘conduct’ of the hearing in refusing an adjournment that is the subject of review. To treat the refusal of the adjournment in this way is more consistent with the concept of ‘conduct’ than with the notion of ‘decision under an enactment’.
[9] (1990) 170 CLR 321.
[10] (1990) 170 CLR 321 at 337-338.
The concern addressed by Mason CJ in those passages is to avoid a multiplicity of reviews which would fragment administrative decision making by allowing the review of procedural directions and preliminary steps which have no legal effect until subsumed in an operative decision. However, Mason CJ recognised that those preliminary steps which have a distinct legislative foundation, for example as a necessary precondition, may be reviewable. Mason CJ continued:[11]
My view is more in accord with the tentative opinion expressed earlier by Ellicott J. in Ross v. Costigan when he said that ‘it may well be that the word ‘decision’ means an ultimate or operative determination not a mere expression of opinion or a statement which can of itself have no effect on a person’. However, I would not wish for myself to place emphasis on the words ‘of itself’ in this statement. To say that a reviewable decision is an ultimate or operative determination does not mean that antecedent conclusions or findings which contribute to the ultimate or operative decision are beyond reach. Review of an ultimate or operative decision on permissible grounds will expose for consideration the reasons which are given for the making of the decision and the processes by which it is made.
(citations omitted)
[11] (1990) 170 CLR 321 at 338.
The Registrar contends that the appointment of an examiner is such a preliminary decision which can only be reviewed as part of the review of a licensing decision.
In Bond, Toohey and Gaudron JJ explained the meaning of the term ‘under an enactment’ as follows:[12]
It does not follow that, because s 5 is not confined to acts involving the exercise of or a refusal to exercise a substantive power, the acts which constitute a decision reviewable under s 5 of [the ADJR Act] are at large. They are confined by the requirement in s 3(1) that they be made 'under an enactment'. A decision under an enactment is one required by, or authorized by, an enactment. Cf Australian National University v Burns. The decision may be expressly or impliedly required or authorized. See Minister for Immigration and Ethnic Affairs v Mayer; Chan v Minister for Immigration and Ethnic Affairs. If an enactment requires that a particular finding be made as a condition precedent to the exercise of or refusal to exercise a substantive power, a finding to that effect is readily characterized as a decision 'under an enactment'. However, it is otherwise with respect to findings which are not themselves required by an enactment but merely bear upon some issue for determination or some issue relevant to the exercise of a discretion. Findings of that nature are not themselves 'decisions under an enactment'; they are merely findings on the way to a decision under an enactment.
(citations omitted)
[12] (1990) 170 CLR 321 at 377.
In Australian National University v Burns (Burns),[13] the Full Federal Court considered whether the decision of the Australian National University (ANU) to terminate the appointment of a professor on the grounds that he was permanently incapacitated from performing his duties was reviewable pursuant to the ADJR Act. The ANU was constituted by the Australian National University Act 1946 (Cth) (the University Act) as a body corporate consisting of the Council and the convocation and the graduate and under-graduate members. The ANU could contract through any person acting with the authority of the Council. The Council was empowered to appoint academic staff and was charged with ‘the entire control and management of the affairs and concerns of the ANU’.[14] The Council had authority to make rules, referred to as statutes, for the governance of the ANU but no such statute was made with respect to the appointment and dismissal of professors.
[13] (1982) 64 FLR 166.
[14] (1982) 64 FLR 166 at 172 per Bowen CJ and Lockhart J.
In Burns Bowen CJ and Lochkart J explained that the termination was made under the contract and not the University Act:[15]
In our opinion the rights and duties of the parties to the contract of engagement were derived under the contract and not under the University Act. Section 23 empowered the council to enter into the contract on behalf of the appellant. Even if the Council, in considering the position of the appellant under the contract, might be said to be acting under s 23, the effective decision for dismissal taken and notified to the respondent was directly under the contract…
If either party had not fulfilled his or its obligations under the contract then he or it would be susceptible to an action for damages for breach of contract.
[15] (1982) 64 FLR 166 at 174-175.
In General Newspapers Pty Ltd v Telstra Corporation[16] the Full Court of the Federal Court considered the reviewability of a decision by Telstra not to enter negotiations for a printing contract with General Newspapers Pty Ltd. After General Newspapers Pty Ltd had expressed interest in a contract, they were not informed that the contract would be put to tender or that that possibility was being considered. Telstra subsequently announced that it had entered into contracts with another publisher. General Newspapers Pty Ltd alleged Telstra was required to put the contract to tender, pursuant to the Telecommunications Act 1991 (Cth) (the Telecommunications Act). Telstra was statutorily clothed with all of the powers of a natural person including the power to contract. Telstra was obliged by the licence granted to it to operate the telephone landline system to produce a telephone directory annually. Moreover, a provision of the Telecommunications Act specifically authorised Telstra ‘to do any act necessary to comply with or give effect to a condition of its licence’. Nonetheless, the Full Court held that the decision was not reviewable. Davies and Einfeld JJ said:
In the present case, the decisions relied upon involved the entry of contracts and the conduct challenged was conduct leading to the making of the contracts. No statute made specific provision for such contracts, merely conferring upon [Telecom] all the powers of a natural person including the power to enter into a contract. That was a mere conferral of capacity to act. The contracts were not relevantly authorised or required by and were not made under an enactment. The validity of the contracts and of the acts done was governed entirely by the law of contract, not by the statutes. Thus, the ADJR Act had no application to the conduct or to the alleged decisions.
[16] (1993) 45 FCR 164 at 173.
In Griffith University v Tang (Tang),[17] the High Court considered whether a decision made by Griffith University was a decision made under an enactment for the purposes of s 4(a) of the Judicial Review Act 1991 (Qld) (the Review Act). The Review Act reformed the jurisdiction of the Supreme Court of Queensland to provide remedies in the nature of the prerogative writs. The application for judicial review was brought by a post-graduate student who had been excluded from further participation in a PhD degree program after a finding that she had engaged in academic misconduct. The PhD degree sought by the applicant could only be obtained from a body constituted as a University.[18]
[17] (2005) 221 CLR 99.
[18] Higher Education (General Provision) Act 1993 (Qld).
Griffith University was established as a body corporate by the Griffith University Act 1988 (Qld) (the Act) and as such had all the powers of an individual. One of its statutorily mandated functions was the conferral of ‘higher education awards’. The Act constituted a Council as the governing body of the University. Most of the Council’s powers were delegated to committees. A sub-committee of one of those committees, the Assessment Board, investigated the allegation that Ms Tang had engaged in academic misconduct. Ms Tang was invited to make submissions to the Chair of the Assessment Board. After hearing Ms Tang’s submissions, the Assessment Board determined to exclude her from the PhD candidature program. Ms Tang’s appeal to the University Appeals Committee was dismissed.
The Review Act provided that a person ‘aggrieved by a decision to which this Act applies’ may apply to the Supreme Court of Queensland for a statutory order of review. A person aggrieved was defined to include a person whose ‘interests are adversely affected by the decision’. Ms Tang applied for a statutory order of review to the Supreme Court. An application to summarily dismiss the application was refused by the trial Judge whose decision was upheld by the Court of Appeal.
On appeal to the High Court, the decision of the Supreme Court of Queensland was set aside and the application for judicial review dismissed.
After referring to Burns and Australian National University v Lewins (Lewins)[19] Gleeson CJ said:[20]
[10]Those cases, and other decisions of the Federal Court extending over many years, establish, in relation to the ADJR Act, that it is not enough that the decision be within power. The legislation does not provide for review of all decisions of an administrative character made in pursuance of any power or authority which has its foundation in a statute. As Lehane J put it in Australian National University v Lewins, a decision meets the test ‘only if it is one for the making of which the relevant statute either expressly or impliedly provides and one to which the statute gives legal force or effect.’
[19] (1996) 68 FCR 87.
[20] (2005) 221 CLR 99 at 107, [10].
Gummow, Callinan and Hayden JJ emphasised the importance that the legal effect of the decision be sourced in the statute:[21]
[21] (2005) 221 CLR 99 at 128.
[80]The answer in general terms is the affecting of legal rights and obligations. Do legal rights or duties owe in an immediate sense their existence to the decision, or depend upon the presence of the decision for their enforcement? To adapt what was said by Lehane J in Lewins, does the decision in question derive from the enactment the capacity to affect legal rights and obligations? Are legal rights and obligations affected not under the general law but by virtue of the statute?
…
[82]For these reasons, a statutory grant of a bare capacity to contract does not suffice to endow subsequent contracts with the character of having been made under that enactment. A legislative grant of capacity to contract to a statutory body will not, without more, be sufficient to empower that body unilaterally to affect the rights or liabilities of any other party. The power to affect the other party's rights and obligations will be derived not from the enactment but from such agreement as has been made between the parties. A decision to enter into a contract would have no legal effect without the consent of the other party; the agreement between the parties is the origin of the rights and liabilities as between the parties.
…
[86]However, that which is affected in the fashion required by the statutory definition may also be statutory rights and obligations. An example is that given by Toohey and Gaudron JJ in Bond of a requirement, as a condition precedent to the exercise of a substantive statutory power to confer or withdraw rights (eg, a licence), that a particular finding be made. The decision to make or not to make that finding controls the coming into existence or continuation of the statutory licence and itself is a decision under an enactment.
…
[89]The determination of whether a decision is ‘made ... under an enactment’ involves two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment. A decision will only be ‘made ... under an enactment’ if both these criteria are met. It should be emphasised that this construction of the statutory definition does not require the relevant decision to affect or alter existing rights or obligations, and it will be sufficient that the enactment requires or authorises decisions from which new rights or obligations arise. Similarly, it is not necessary that the relevantly affected legal rights owe their existence to the enactment in question. Affection of rights or obligations derived from the general law or statute will suffice.
As to the first criterion mentioned in the last cited paragraph, no party contends that the appointment of an examiner is not impliedly authorised by the MVA, it is only where that power is found which is in dispute. As to the second criterion, the authorised examiner’s power to certify the fulfilment of the statutory precondition to the grant of a driver’s licence, namely that the applicant passed a practical driving test, is explicitly sourced in s 79A of the MVA. Indeed, it cannot possibly be sourced in the examiner’s engagement by the Registrar. So too the power of appointment, which is no more than a designation of a person who can exercise that power, must be sourced in s 79A of the MVA. Finally the power of appointment affects the legal powers of the authorised examiner in that, it authorises him or her to certify that an applicant for a driver’s licence has passed a precondition to issuing that licence.
The Registrar, as such, has no statutory authority to do any act or exercise any power other than the powers and functions expressly or impliedly conferred by the Act. It is important in this respect that the Registrar is not incorporated.[22] In particular the Registrar is not a corporation sole and for that reason does not enjoy the powers conferred by s 24D of the Law of Property Act 1936 (SA). In Tang, Griffiths University was clothed with the powers which the common law and other statutory provisions confer on all persons. The Registrar as a natural person possesses the full range of those powers and authorities but is not called upon to exercise them for the purpose of administering the MVA. If the Registrar were to exercise them, nice questions would arise as to the extent of his or her indemnity from the Executive. The Registrar, as such, does not employ clerical or other administrative staff. Only the Chief Executive of an administrative unit of the public service is so authorised by s 30 of the Public Sector Act 2009 (SA).[23]
[22] Because the Registrar is not incorporated, continuity is provided by s 35 of the Acts Interpretation Act 1915 (SA):
35 Words applying to occupant of public office to apply to successive occupants
Words directing or empowering any minister of the Crown or any public officer or functionary to do any act or thing, or otherwise applying by reference to his or her office will be construed as applying to the person for the time being acting in the office or discharging the duties of the office.
[23] Alternatively the Governor may appoint persons to public office pursuant to s 68 of the Constitution Act 1934 (SA). For the purposes of the Fair Work Act 1994 (SA) Regulation 4 of the Fair Work (General Regulations) 2009 (SA) deems the person for the time being holding the position of Chief Executive of the Department of Premier and Cabinet to be the employer of public employees.

In Saraceni v Australian Securities and Investment Commission[24] Barker J considered whether a decision of ASIC to authorise a person to apply for an examination pursuant to Part 5.9 of the Corporations Act 2001 (Cth) (Corporations Act) was reviewable pursuant to the provisions of the ADJR Act.
[24] [2012] FCA 688.
Section 596B of the Corporations Act provided:
(1)The Court may summon a person for examination about a corporation’s examinable affairs if:
(a)     an eligible applicant applies for the summons; and
(b)     the Court is satisfied that the person:
(i)has taken part or been concerned in examinable affairs of the corporation and has been, or may have been, guilty of misconduct in relation to the corporation; or
(ii)may be able to give information about examinable affairs of the corporation.
(2)     This section has effect subject to section 596A.
An ‘eligible applicant’ was defined by s 9 of the Corporations Act as follows:
eligible applicant, in relation to a corporation, means:
(a)     ASIC; or
(b)     a liquidator or provisional liquidator of the corporation; or
(c)     an administrator of the corporation; or
(d)an administrator of a deed of company arrangement executed by the corporation; or
(e)     a person authorised in writing by ASIC to make:
(i) applications under the Division of Part 5.9 in which the expression occurs; or
(ii)    such an application in relation to the corporation.
Barker J held that the appointment of a receiver by ASIC is made under the Corporations Act:[25]
[156]The receivers argue that the authorisations are expressly or impliedly required or authorised by the Corporations Act, but as explained by Gyles J in Ryan v ASIC, do not themselves confer, alter or otherwise affect the applicant’s legal rights or obligations. Therefore, it follows that the authorisation does not derive from the enactment. The applicant’s rights or obligations are only capable of being affected by a later step in the statutory scheme being the issue of a summons by a court.
…
[158]There has been much academic criticism, in particular, of the decision in Griffith University v Tang because of a perceived failure by the Court to accept the simple analytical argument that the disciplinary procedures were created pursuant to a course of action made permissible by the statute (as to which criticism see Keane, Chief Justice The Hon PA, ‘Democracy, Participation and Administrative Law’ (2012) 68 AIAL Forum, pp 1‑18 at pp 8‑12, but as I have said, that case is entirely different from the position here. Here, ASIC have the power to authorise a person as an ‘eligible applicant’. That power was exercised. The authorisation decision was plainly and directly made ‘under’ s 11 of the ASIC Act when read with the relevant provisions of the Corporations Act. Unlike the decision in Griffith University v Tang, it was a decision precisely provided for by the Corporations Act.
[159]It is unhelpful in such circumstances to focus on the question, as the submissions of the receivers do, whether the decision to grant the authorisations affected the rights of the applicant; that is not the question. As pointed out above, the question whether a person is a ‘person aggrieved’ for the purposes of the ADJR Act is an entirely different question.
[25] [2012] FCA 688 at [156], [158]-[159].
I acknowledge that there is limited public utility in the reviewability of the authorisation, and revocation of authority, of examiners. It is a little surprising to find that Parliament might have so provided. I accept that the primary purpose of permitting a review of decisions under s 79A of the MVA is to protect applicants for driver’s licences.
Nonetheless, as I earlier observed, the two criterion identified in Tang have been satisfied. The mere nomination of an authorised examiner by the Registrar in the exercise of his or her personal powers can have no legal effect. A legally effective appointment can only be made under the provisions of the MVA. Moreover, if an authorised examiner is actually employed under a contract to perform that work, it can only be through a contract with the executive government of the State consequential upon that examiner’s statutory appointment by the Registrar. An authorised examiner cannot personally be contracted by the Registrar to perform the function pursuant to s 79A of the MVA. The appointment therefore is necessarily made under the MVA, and must be made having regard to the statutory function the person so appointed must perform.
The statutory legal effect of the appointment of an authorised examiner is to empower the examiner to certify the satisfaction of a precondition to the grant of a licence.
The appointment of authorised examiners is a critical element of the scheme to grant drivers’ licences. It is important that fit and proper persons are encouraged to participate in the scheme as authorised examiners. The right of review of decisions to authorise or revoke is calculated to give fit and proper person’s confidence to expend the time and resources to train and equip themselves to participate. The decision to revoke Mr Lawson’s authorisation affected his legal right to operate in that role.
Finally, there is no, or at least very little, risk of fragmentation of decision making. An unsuccessful applicant for a driver’s licence is unlikely to challenge the appointment of an authorised examiner who has failed him or her because that will still leave the applicant without a certificate from an authorised examiner. Should an applicant, who passes a practical driver’s test, ever be refused a licence because of the subsequent revocation of the authorisation of the examiner who certified that he or she passed the practical driver’s test, he or she could bring concurrent reviews of both decisions.
Conclusion
The decision to revoke Mr Lawson’s authorisation was a reviewable decision for the purposes of s 98ZA of the MVA.
I would dismiss the appeal.
STANLEY J: I would dismiss the appeal. I agree with the reasons of Kourakis CJ.
NICHOLSON J: I would dismiss the appeal. I agree with the reasons of Kourakis CJ.