Neat Domestic Trading Pty Ltd v Awb Ltd and Another
[2003] HCA 35(Decision by: Kirby J)
Neat Domestic Trading Pty Ltd
vAwb Ltd and Another
Judges:
Gleeson CJ
McHugh J
Kirby JHayne J
Callinan J
Subject References:
Administrative law
Administrative decisions
Judicial review
Whether private company making decision under an enactment
(CTH) Administrative Decisions (Judicial Review) Act 1977 ss 3(1), 5(2)(f), 6(2)(f)
(CTH) Wheat Marketing Act 1989 s 57
Legislative References:
Administrative Decisions (Judicial Review) Act 1977 - s 3(1); s 5(2)(f); s 6(2)(f)
Wheat Marketing Act 1989 - s 57
Judgment date: 19 June 2003
Canberra
Decision by:
Kirby J
[66] In Gerlach v Clifton Bricks Pty Ltd , [35] Callinan J and I said:
All repositories of public power in Australia, certainly those exercising such power under laws made by an Australian legislature, are confined in the performance of their functions to achieving the objects for which they have been afforded such power. No Parliament of Australia could confer absolute power on anyone ... [T]here are legal controls which it is the duty of courts to uphold when their jurisdiction is invoked for that purpose.
Although we were in dissent as to its application to the circumstances of that case, the general principle so stated was not questioned.
[67] This appeal [36] presents an opportunity for this court to reaffirm that principle in circumstances, now increasingly common, where the exercise of public power, contemplated by legislation, is "outsourced" to a body having the features of a private sector corporation. The question of principle presented is whether, in the performance of a function provided to it by federal legislation, a private corporation is accountable according to the norms and values of public law or is cut adrift from such mechanisms of accountability and is answerable only to its shareholders and to the requirements of corporations law or like rules.
[68] Given the changes in the delivery of governmental services in recent times, performed earlier and elsewhere by ministries and public agencies, this question could scarcely be more important for the future of administrative law. [37] It is a question upon which this court should not take a wrong turning. [38]
The facts
[69] Wheat export arrangements : Most of the relevant facts are set out in other reasons. [39] The necessary background includes the history of governmental regulation of the marketing of wheat in and from Australia. That cereal, from earliest colonial times, has been the most important crop grown in (and one of the chief exports from) Australia. [40]
[70] Australian durum wheat is a special variety of wheat, mainly grown in northern New South Wales. Its characteristics make it suitable for the production of semolina-based products such as macaroni, spaghetti and vermicelli. [41] It is graded in quality from ADR1 (prime quality grain) to ADR6 and then to ADRF (or ADR Feed) at the lowest end of the quality scale. [42] NEAT Domestic Trading Pty Ltd (NEAT), the appellant in this court, has for many years been involved in marketing durum within Australia and overseas. In this regard, it participates in a specialist market.
[71] Before the coming into effect of the present statutory arrangements for the marketing of export wheat, the Australian Wheat Board (the board) had control over the wheat export monopoly under the Wheat Marketing Act 1989 (Cth) (the Act). Within its sole right to control the export of wheat, the Board had given consent to NEAT on a number of occasions to export large quantities of durum to Libya, Morocco and Turkey (1996), Tunisia and Morocco (1998) and Italy (1999). Such approvals were inferentially to the advantage of NEAT, the wheat growers who dealt with it, as well as the Australian national interest, without adversely affecting the monopoly marketing of wheat exports from Australia by the board.
[72] The 1998 amending Act : On 1 July 1999 the Wheat Marketing Legislation Amendment Act 1998 (Cth) came into effect. That statute amended the Act to substitute a new scheme of wheat marketing that envisaged a public body, the Wheat Export Authority (the authority), and three companies incorporated under corporations law replacing the board. The purpose of the restructure was not to alter the wheat export arrangements in a fundamental way. The export monopoly was to be maintained. [43] The aim was to reduce the government's involvement to the regulatory aspects of the monopoly through the authority, while the responsibility for the marketing and commercial aspects of the scheme was to rest with a private company, owned, at least in part, by growers.
[73] However, as will become apparent, this separation of the regulatory and commercial aspects of the scheme was not complete. AWBI, [44] a wholly owned subsidiary of AWB, was the only supplier that did not require the authority's consent to export wheat from Australia. [45] In key aspects, AWBI remained intimately involved in the regulatory scheme established by the Act. Not only did the authority have to consult AWBI in the process of evaluating an application for export consent, [46] but the "prior approval in writing" of AWBI was required before the authority could grant such a consent to any other supplier. [47]
[74] On 14 July 1999, after the commencement of the legislative amendments and following approval for such export granted by AWBI, the authority gave consent for a proposed bulk export of wheat to India by a company other than NEAT. However, so far as the evidence disclosed, that was the end of the individual consideration by AWBI of applications for the bulk export of wheat. Thereafter, no approvals whatever for bulk export of wheat were given. On the contrary, a minute to the board of AWBI, only a week after the above instance of consent, recorded that "[t]he existence of a bulk permit is in direct contravention of AWB's current policy not to issue such permits". There ensued correspondence between AWB and the authority seeking revocation of the authority's consent for the proposed export to India. The authority asserted that the consent could not be revoked. An information paper was prepared for the AWBI board discussing the case, asserting that the issuance of the "permit" had been "erroneous" and proposing guidelines and protocols to ensure that "it does not happen again".
[75] It is against the background of this dispute within the successor bodies to the board that NEAT's subsequent applications to continue its specialised export of durum to willing overseas buyers must be understood.
[76] NEAT's applications : Six of NEAT's applications for the bulk export of durum were the subject of these proceedings. The first two of those were made on 4 November 1999. NEAT wrote to the authority for consent to export quantities of ADR3 respectively to Italy and Morocco. The authority forwarded the request to AWBI. AWBI refused to give approval and the authority immediately signified its refusal of consent. There followed two similar requests on 9 December 1999 for the export of ADR Feed and ADR6 to a buyer in Italy. These were rejected by AWBI which again refused to give its approval. A facsimile from AWB to NEAT stated in general terms that "AWB will not be issuing export permits for bulk wheat shipments". In consequence of AWBI's refusal of approval, the authority refused to give its consent to the proposed export.
[77] The identical outcome ensued with a fifth application by NEAT in January 2000. There were written exchanges evidencing heightened frustration on the part of NEAT over the apparent intransigence of AWB acting on behalf of AWBI. NEAT explained to AWB that its grower clients had been "unable to obtain a satisfactory price from AWB Limited and ... want[ed] NEAT to immediately conclude this business". According to the evidence, in the midst of the consideration of this application, AWB's chairman, Mr Flügge, on 24 January 2000, told a meeting of local durum growers at Gunnedah chaired by the Deputy Prime Minister:
I have two things to say to you, the first is good afternoon and the second is there will be no permits granted for the bulk export of any types of wheat.
[78] Mr Flügge later wrote in similar terms to the Deputy Prime Minister stating that AWBI "will not approve the issue of a permit for the bulk export of durum, or any other wheat at this time". He insisted that this was "our responsibility under legislation " (emphasis added). He justified this approach as necessary "to preserve the integrity of the single desk", that is a single market control over the sale of wheat of all types exported from Australia. Putting it bluntly, the searching out of specialist, niche markets for the sale of particular varieties of wheat, to particular countries, for particular uses, at particular times was not open to consideration by AWBI "at this time". To those who wanted to submit otherwise, all that AWB and AWBI would say, in effect, was "Good afternoon", and then "Good-bye".
[79] In this court, NEAT went in some detail through the circumstances of the fifth application as disclosed in the evidence. It involved a proposal to sell 50,000 tonnes of ADR Feed to a buyer in Italy. As indicated, ADR Feed is at the lowest end of the scale of durum quality. However, apparently, NEAT had found a particular purchaser in Italy willing to accept Australian ADR Feed not for animal consumption but to make pasta for human consumption. The wheat in question was available for sale in what NEAT regarded as outside the ordinary AWBI markets for the sale of ADR Feed. In a letter to the authority, in support of the fifth application, NEAT pointed out that the wheat in question was "stored on the ground in uncovered stacks" because local silos were full or shut. NEAT could offer a significantly higher price to growers than was available from the domestic company (AWB) for ADR Feed quality wheat. The price differential was about $35 per tonne. However, it required prompt action and segregation of the ADR Feed to meet the buyer's requirements. The letter pointed out that the buyer "currently has US Feed durum offered to it and it will buy US Feed durum unless NEAT can confirm it has obtained a permit for ADR Feed in the very near future". On the face of things, this application therefore presented a particular deal, not in competition with AWBI or other Australian wheat exports to Italy or other Australian exports of ADR Feed. However, as on the previous occasions (save for the one case in July 1999 that was "never to be repeated") AWBI refused to give its approval. The authority, as it was bound, declined to give its consent to the export bid.
[80] NEAT's final attempt to obtain approval for export of durum was at the end of January 2000. This was a proposed sale of 25,000 tonnes of ADR Feed to Italy. It was essentially a repetition of the previous application, but with a considerably lower tonnage. As with the prior applications, within 2 days AWBI sent a letter to the authority withholding approval and, as required, the authority refused its consent. It was in those circumstances that NEAT commenced its proceedings in the Federal Court.
[81] Before closing this chronicle, it is worth referring to the communications by AWBI informing the authority of its refusal to approve the export applications. The letters by AWBI refusing NEAT's first five applications were in identical terms, stating as the only reason for refusal:
Approval is not granted on the basis that the issuing of the permit would jeopardise [AWBI's] marketing strategy and adversely impact on the net returns received by growers who deliver to the National Pool.
Applications for bulk export of durum or any other types of wheat by other traders were treated in the same way. AWBI would refuse approval in virtually identical terms to those set out above, regardless of the nominated export destination, and regardless of the type of wheat proposed for export, or other special circumstances.
The findings of the primary judge
[82] In the Federal Court, before the primary judge (Mathews J), AWB and AWBI attempted to present a case that, in refusing to give approval, AWBI, in every instance, had examined carefully the individual merits of the application. Indeed, Mr Gomersall and Mr Richardson, the officers who had made the decisions to refuse approval for NEAT's applications, gave oral evidence stating that they had taken into account various considerations special to each request. It was suggested that five or six considerations had been carefully weighed by AWB and AWBI in reaching each decision. Reference was also made to the statement in the internal records of AWBI limiting the refusal of export approval to "the current market environment" and the claim made that each request for approval would be dealt with on a "case by case" basis.
[83] The primary judge rejected the assertions of individualised decision-making. Her Honour regarded the suggested qualification that the policy would be maintained in current market conditions as being of "little relevance". [48] She categorised the assurance that each application was considered individually as a "hollow one" [49] which, in the light of all the evidence, represented "a meaningless exercise". [50] She rejected the evidence of the respondents' witnesses about other factors that they allegedly took into account: [51]
I have difficulty in accepting that they played any realistic part in the rejection of the applications. The evidence indicates that these factors probably did exist. If considered, they would no doubt have provided further grounds for declining to approve the applications. But I cannot accept that they were in fact given any realistic consideration at that stage. The applications were bound to be rejected in any event in pursuance of the overall policy [of AWBI].
[84] The primary judge accepted that some of the general considerations postulated by the AWB and AWBI witnesses may have played a part in the formulation of the "policy". But it was the "policy" that caused the rejection of NEAT's applications: [52]
AWBI was, as Mr Gomersall conceded, concerned more with its overall marketing strategy than with the merits of individual cases. Its decisions in this case were clearly made in the inflexible application of its policy against bulk export permits.
[85] In this court, by a notice of contention, AWB and AWBI sought to uphold the Full Court's decision on the basis that that court should have held that each of the decisions made by AWBI, not to give approval for NEAT's application to the authority, did not involve the exercise of a discretionary power in accordance with a policy without regard to the merits of the particular applications. However, in the light of the primary judge's conclusions, and having regard to the advantages which she enjoyed in reaching those conclusions, this contention fails. It would be impermissible for this court to reopen the issue, determined as it was by the factual findings at trial. The primary judge's conclusion was based in part on her assessment of the credibility of the oral evidence of the officers and, more importantly, it is reinforced by the contemporary records from which her Honour quoted. Far from being palpably erroneous or contrary to incontrovertible facts, [53] her Honour's findings in this regard were fully consistent with the contemporary evidence. The lawfulness of what the respondents did must therefore be judged in accordance with the terms of the "policy" that AWB and AWBI were found to have adopted and applied.
The legislation and common ground
[86] The relevant provisions of the Act and of the Trade Practices Act 1974 (Cth) (the TPA) are set out, or sufficiently referred to, in other reasons. [54]
[87] Because NEAT had, by the time the matter was argued in the Full Court (as in this court), abandoned the application for various remedies under s 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act), the real question litigated was whether AWBI's actions left it exposed to NEAT's proceeding for breach of s 46 of the TPA. [55] As a defence to the suggested contravention of the TPA, AWB and AWBI invoked s 57(6) of the Act. This refers to s 51(1) of the TPA. That provision exempts anything specified or specifically authorised by the provisions of the Act from founding a contravention of the TPA.
[88] In the Full Court, and by notice of contention in this court, AWB and AWBI asserted that s 57(6) covered any of their actions pursuant to or broadly referable to the functions specified for them in the Act. However, such an argument cannot succeed, stated so broadly. When the Act refers to "things ... to be regarded as specified ... and specifically authorised by this section" (including "anything that is done by [AWBI] under this section or for the purposes of this section") [56] such references are obviously confined to things done validly; not merely purported to be so done. [57] It follows that the second contention of the respondents also fails.
[89] NEAT argued that AWBI's successive refusals to approve its bulk export applications were not done validly under s 57(6) of the Act or for the purposes of that section. It invoked s 5(1)(e) and (2)(f) of the ADJR Act. Section 5(1)(e) provides that an application for an order of review of a decision pursuant to the ADJR Act can be made where "the making of the decision was an improper exercise of the power conferred ... in pursuance of which it was purported to be made". Section 5(2)(f) provides that the reference to an "improper exercise of a power" includes "an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case".
[90] It was in this roundabout way that an important issue of principle was tendered to the Federal Court. It was whether the decisions to withhold approval, made by AWBI, were reviewable under the ADJR Act. If they were, NEAT pressed its argument that the ground of invalidity referred to in s 5(2)(f) of the ADJR Act was established and that, on that basis, the Federal Court should have set aside the purported decisions so as to leave AWBI bereft of the immunity it claimed from the operation of the TPA.
The issues
[91] It is appropriate to note that some of NEAT's arguments in the courts below were not pressed on this court. One was NEAT's argument that AWBI had impermissibly delegated its functions under the statute to AWB. The primary judge rejected that suggestion and it was likewise dismissed in the Full Court. [58] Similarly, by the time the matter reached this court, any complaints against the validity of the decisions of the authority were also abandoned. In effect, this course of argument left the focus exclusively upon AWBI's decisions.
[92] AWBI sought to have this court consider the application of the TPA, on the assumption that NEAT could make good its administrative law complaints. However, that contention must also be rejected. Given the course that the proceedings followed in the Federal Court, AWBI's arguments based on the TPA were not resolved. It would be inappropriate for this court to consider them, effectively for the first time. If NEAT were to succeed in this court, the proceedings would have to be returned to the Full Court for the determination of the outstanding issues under the TPA.
[93] Two remaining issues are therefore now presented for decision by this court. They are:
- (1)
- Were AWBI's refusals to give its approval for NEAT's applications as stipulated in s 57(3B) of the Act, administrative decisions that fall within the scope of the ADJR Act? ("The nature of the decision" issue)
- (2)
- If so, given the findings of the primary judge, undisturbed on appeal, and the evidence adduced at trial, were the decisions an "improper exercise of the power" conferred by the Act in accordance with s 5(1)(e) and (2)(f) of the ADJR Act? ("The exercise of power" issue)
The nature of the decision: context
[94] It is impossible to approach the classification of the contested decisions of AWBI to refuse to give approval to NEAT's requests addressed to the authority, without considering the constitutional and statutory context in which such decisions were made. It is the context that helps to resolve the question whether AWBI's decisions were purely acts of a private corporation, pursuing its own commercial interests in accordance with corporations law, or were decisions of a public, administrative character, rendering them amenable to review under the ADJR Act.
[95] As with so many legal questions in Australia, the starting point for analysis must be the Constitution. [59] It sets the ultimate boundaries within which the exercise of public or governmental power must take place in this country. As Gummow J pointed out in Airservices Australia v Canadian Airlines International Ltd , [60] the character of the provisions of an Act designed to involve private sector bodies in the "exercise [of] what once may have been and elsewhere may be regarded as governmental functions" is to be determined by reference to the operation of such provisions. They must also be read in the context of the constitutional features of "the nature of responsible government, in particular with respect to the position of the Minister charged with the administration of the statute constituting the entity in question". [61] His Honour referred to certain "significant fissures in Australian jurisprudence", including: [62]
... the extent to which the manner of scrutiny of the formally "non-governmental" action of a statutory corporation (that is, entering into a "commercial" contract) can or should be affected by the considerations that it nonetheless is a public body that is so acting and that in so doing it is exercising a public function.
[96] The character of the decisions of bodies assigned important public functions is not determined conclusively by the structure of such bodies (for instance as private or statutory corporations), still less by arguments about the merits or demerits, advantages or disadvantages of privatisation or private sector management. [63] In so far as such decisions derive their necessity or effectiveness, and the bodies making them derive their existence or particular functions, from federal legislation, they may involve the exercise of public power. In so far as they do this, under the Constitution, a minister must be accountable to the parliament in respect of such exercise. In turn, through the parliament, the minister, and the government of which he or she is part, are responsible to the electors. This appeal was argued as if the Constitution was silent on the issues for decision. In my view, the Constitution cannot be ignored in resolving the first issue. It is a critical matter of context.
The nature of the decision: the ADJR Act
[97] The statutory foundation : In order to invoke the grounds of review in s 5 of the ADJR Act, an applicant must be "a person aggrieved by a decision to which this Act applies". [64] In s 3(1) of the ADJR Act a "decision to which this Act applies" is defined as:
... a decision of an administrative character made ... or required to be made ... (whether in the exercise of a discretion or not) under an enactment, other than a decision ... included in any of the classes of decisions set out in Schedule 1.
The decisions made under the Act in question here are not listed in Sch 1 of the ADJR Act. They are thus not expressly exempted from the operation of that Act.
[98] It was not disputed that NEAT was a "person aggrieved" by AWBI's refusals to approve its applications. Further, there was no challenge to the holding of the primary judge that AWBI's approval determinations were "substantive, final and determinative of the issues falling for consideration" and were therefore to be characterised as "decisions" for the purposes of the ADJR Act. [65] But before this court, AWBI disputed that such decisions were either to be classified as "administrative", or "made ... under an enactment". Different, though related, questions may arise where review of such decisions is sought under the common law.
[99] Before turning to examine the issues in dispute, I pause to make reference to a point that is easy to overlook. The focus of s 5(1) of the ADJR Act is upon a given "decision". It is the "decision" that must be characterised by reference to whether, within s 3(1) of the ADJR Act, it is of "an administrative character" and one made or required to be made "under an enactment". The question is not whether AWBI, as the decision-maker, is a body of a particular character, [66] including whether generally speaking it performs its functions as a private corporation conforming to corporations law or otherwise and is committed to maximising its profits. Whilst such features of AWBI may be relevant to the character of particular decisions that it makes, they are not determinative . In a particular case, a statutory scheme may have entrusted decisions of a public, governmental or regulatory character to a private corporation, involving that body, to that extent, in the exercise of public power.
[100] In my view, the primary judge was correct to conclude that a decision made by AWBI for the purposes of s 57(3B) of the Act was of an administrative character. [67] She was also correct to conclude that such a decision was made under an enactment. [68] I shall address these characterisations in turn, although clearly neither is wholly divorced from the other.
[101] The decisions were administrative : In reaching her conclusion about the character of the impugned decisions, the primary judge took into account the width of the expression "administrative" in this context. Given the remedial character of the ADJR Act, a broad criterion was selected to attract that Act's application to a vast range of decisions made in the deployment of federal governmental power. [69] It is obviously inappropriate to construe such a criterion narrowly, and in a way that would remove from the purview of the ADJR Act decisions that might otherwise be reviewable under the common law. That would defeat the purpose of that Act.
[102] The primary judge acknowledged that the concept of an "administrative" decision was not susceptible to a comprehensive and universal definition. [70] In that regard, her Honour [71] referred to the observation by Ellicott J in Burns v Australian National University [72] that administrative decisions include at least those "made in executing or carrying into effect the laws of the Commonwealth". By that criterion, the decision concerning the grant or refusal of "prior approval in writing" of AWBI, as sought by the authority following NEAT's request, is one made in carrying into effect a public law of the Commonwealth, namely the Act.
[103] Section 57(3A) of the Act makes it a precondition for the authority to "consult" AWBI before it gives consent for the bulk export of wheat. Without the authority's written consent, wheat may not lawfully be exported from Australia, under sanction of a substantial penalty. [73] If AWBI does not give approval, the authority "must not give a bulk-export consent". [74] AWBI's approval decision is fully integrated into the regulatory scheme created by the statute. AWBI holds, in effect, a veto over the statutory consent of the authority, which is without doubt a public body. To that extent, a private corporation to a large degree controls the conduct of an independent statutory agency of the Commonwealth made up of officers of the Commonwealth answerable to this court, amongst other ways, under the Constitution. [75] That constitutionally entrenched power of judicial review is one of the limits on the extent to which corporatisation and privatisation of federal administrative action in Australia may escape the disciplines of judicial scrutiny. [76]
[104] Further, the interests involved in and affected by AWBI's decisions to grant or withhold the approval required by the Act are much wider than the private interests of an ordinary corporation. The Act not only grants AWBI the privileged position of a statutory monopoly, but it involves that corporation in the scheme of regulation established. The presence of either, and certainly of both of those elements imposes upon AWBI obligations in the proper exercise of those of its functions that were relevant to the operation of the statutory regulatory scheme, and that had a substantial effect on growers. Some of those growers were not shareholders of AWB and were therefore not represented in the internal deliberations of AWB or AWBI.
[105] In characterising the decisions to grant, or withhold, approval for bulk export of wheat, the relationship between AWBI and the applicant traders (and growers) seeking such approval is therefore also relevant. Grain traders seeking the authority's, and consequently AWBI's, agreement for the export of wheat, are not in a contractual relationship with AWBI. Further, in a letter to the authority, Mr David Mailler, the chairman of the Durum Wheatgrowers Association (NSW), also pointed out that those growers who had not exported in the past or who joined the industry later were not shareholders of AWB. Remedies under the TPA were also foreclosed. As such, the only way that the decisions of AWBI, with their wide and significant impact, could be exposed to legal scrutiny or accountability was by way of administrative review. If such review were unavailable, AWB and AWBI, at least in this respect, would come close to possessing absolute legal power.
[106] In his letter to the authority, Mr Mailler recorded the disenchantment of many growers with AWBI's conduct and the need for transparency and accountability in the decision-making process. An internal AWB memorandum to Mr Flügge also noted the hostility of durum growers towards the conduct of AWB and AWBI. Apart from any hope that such disenchantment would result in legislative action at some point in the future, for the time being at least, in the absence of administrative review, the growers affected could not even get AWBI to listen to them.
[107] If the consent decision of the authority is characterised as "administrative" (a proposition which was not in dispute), AWBI's decision to give approval for such an application must surely be characterised in the same way. [77] Both the decision of the authority and that of AWBI are made pursuant to the same provision in the Act regulating the export monopoly. They each relate to the same applications for bulk export. They have the same purpose and substantive effect. They interact with one another.
[108] In the letters informing NEAT of its refusal of consent for the respective applications, the authority in each case explained that such refusal followed the withholding of approval by AWBI. Those letters also referred to the rights that NEAT had under the ADJR Act to obtain a "statement of the reasons" and to "challenge the decision". However, even if asserted against the authority, such rights would be reduced to nought if the same obligations and scrutiny mechanisms under the ADJR Act did not extend to AWBI as well.
[109] It is true that different considerations might guide the authority and AWBI in reaching their respective decisions. This was, to some extent, the object of converting the board into different bodies. AWBI, for instance, may legitimately consider the effects of a proposed export on its own commercial interests and the returns of growers who are shareholders of AWB. The authority may also take into account broader considerations of the public or national interest. However, judicial review, whether under the common law or under the ADJR Act, is not concerned with the decision-maker's conclusions on the merits. It is the legality of such decisions that is examined, rather than the correctness or otherwise of the considerations that guided such conclusions.
[110] To determine the availability of judicial review of decisions at common law, courts have looked to the nature of the power exercised by the body in question. In Forbes v New South Wales Trotting Club Ltd , [78] the respondent was a private club with "no statutory power or recognition" but which "controlled trotting in New South Wales by the consent of the government and all of the trotting clubs of that State". Yet for the purposes of its decisions in exercise of a power to warn off persons from courses under its control, it was held that the club was required to observe the rules of natural justice. This was because trotting was a "public activity in which ... large numbers of people take part" and "[m]embers of the public have the legitimate expectation" to be admitted upon paying the stated charge. [79] Gibbs J thought that it was relevant that, at least in some situations, "the person warned off might thereby be prevented from carrying on his occupation or performing the duties of his employment". [80] Accordingly, a private club owner implementing the rules of trotting, such as the respondent in that case, could not exclude members of the public "arbitrarily and capriciously". [81]
[111] Murphy J said expressly that the nature of the power exercised can be public, even if the decision-maker is a private body: [82]
There is a difference between public and private power but ... one may shade into the other. When rights are exercised directly by the government or by some agency or body vested with statutory authority, public power is obviously being exercised, but it may be exercised in ways which are not so obvious ... [A] body ... which conducts a public racecourse at which betting is permitted under statutory authority, to which it admits members of the public on payment of a fee, is exercising public power.
[112] A similar focus on the nature of the power exercised by a decision-making body, in order to determine whether or not it was subject to judicial review, was adopted by the English Court of Appeal in R v Panel on Take-overs and Mergers, Ex parte Datafin . [83] The decision-making body in that case was the Panel of Take-overs and Mergers. The panel was a non-statutory, unincorporated association, without statutory, or common law prerogative powers. However, it regulated an important part of the financial market in the City of London. Despite the fact that the panel did not owe its existence to a statute, and that its decisions were not required by, or made pursuant to, a power conferred by a statute, the Court of Appeal held that it was amenable to public law review.
[113] Lloyd LJ expressed the opinion that where the source of the power was a statute or subordinate legislation, the body was subject to judicial review, but not where the source of the power was contractual. However, between those extremes, a court would look more closely to the nature of the power that was exercised. [84] For the members of the Court of Appeal there were a number of features of the panel and its decisions that brought it within the purview of public law. These included the fact that there had been an "implied devolution of power" to the panel by the government whereby at least some legislation assumed its existence. [85] Its chairman and deputy chairman were appointed by the Governor of the Bank of England. [86] The panel was used by the government as one of the central features of the regulation of the financial market. [87] Its decisions had a significant effect on a great number of citizens, many of whom had not consented to its exercise of power. [88] Importantly, although the panel as such was a "private" body, its functions and decisions could have significant consequences through the council of the stock exchange, which was a public body. Such consequences could include the exclusion or suspension of a listed company from the stock exchange. [89] Finally, it was also considered relevant that those affected by the panel's exercise of power had no other private law remedies for scrutiny or control. [90]
[114] It is useful to have regard to these Australian and English decisions in approaching the first issue presented in this appeal. As I remarked in Re Minister for Immigration and Multicultural Affairs ; Ex parte Applicant S20 / 2002 : [91]
Where a decision is reviewed on grounds that are contained in an enactment, such as the [ADJR Act], ... determining the content of those grounds and the availability of relief requires an interpretation of the statutory language and purpose, read against the background of administrative law principles that have developed (and that continue to develop) under the common law.
[115] Whether or not the criterion of the exercise of "public power" is sufficiently precise to be accepted as the basis for review of decisions under the common law, [92] the observations about the nature of the power identified in cases such as Forbes and Datafin are helpful in analysing whether particular decisions are of an "administrative character". When applied to the circumstances of the present appeal, all the criteria identified in those cases point towards the conclusion that AWBI's impugned decisions were made pursuant to governmental or statutory authority. Indeed, the position of AWBI with its statutory veto on the decisions of a public authority is a much stronger instance than that presented by a private trotting club or a private industry panel. It is therefore unsurprising that AWBI's decisions should be classified as "administrative" and rendered subject to public law scrutiny.
[116] The decisions were made under an enactment : In Australian Broadcasting Tribunal v Bond , Mason CJ held that the phrase "decision of an administrative character made ... under an enactment", read as a whole, indicated that a decision "which a statute requires or authorizes" [93] or "for which provision is made by or under a statute" [94] is reviewable under the ADJR Act. That approach recognises that the elements of "decision", "administrative character" and "under an enactment" in the definition cannot be construed in isolation. They are interrelated. Each informs the meaning and content of the others.
[117] The primary judge [95] made reference to the decision in Glasson v Parkes Rural Distributions Pty Ltd . [96] In that case this court held that where a statute was not "the source of the power to appoint the decision-maker, or the source of his power to make the decision, or the source of the decision's legal effect", the decision could not be said to have been made "under an enactment".
[118] During argument, reference was also made to Federal Court decisions interpreting the phrase "decision ... made ... under an enactment". However, most of the cited exegesis related to corporations or authorities created by statute, and decisions of such bodies to enter contracts [97] or decisions pursuant to existing contracts. [98] As such, they raise different issues. They are not apposite to the circumstances of the present appeal.
[119] Approached in the broad way that the composite phrase in the ADJR Act suggests, it follows that the notion of a "decision ... made ... under an enactment" is not to be construed narrowly. Whether or not the source of the decision-maker's power to act derives from a statute is not the determinative criterion for the purposes of characterising the impugned decision as reviewable under the ADJR Act. However, while cases such as Forbes or Datafin illustrate that a statutory origin is not essential to invoke the supervisory jurisdiction of a court at common law, for a decision to come within the ADJR Act, it must have some appropriate nexus to a federal enactment, given the specific reference to a decision "made ... under an enactment" in s 3(1).
[120] In this regard, the fact that AWBI was a private company, incorporated under corporations law, does not have any immediate legal consequence. While it is true that AWBI as an entity does not owe its existence to the Act, focusing on the terms of the Act it is equally clear that AWBI is not just an ordinary private corporation. AWBI is specifically named in the Act (as "nominated company B"). [99] The Act confers on AWBI the privileged position of being the only person who can export wheat from Australia without approval from the regulating authority. [100] The authority had to consult AWBI in performing its key regulatory function. [101] Moreover, the authority could not give consent for an export by another trader without obtaining AWBI's prior approval. [102]
[121] Through the statutory requirement for the prior approval of "nominated company B", AWBI had conferred upon it the power to exercise a key influence on the regulatory process and the conduct of a public authority. The notion that a private corporation, as such, could, by its decision, control the consent-making processes of the authority (and thereby effectively control the occasions and terms on which other traders would be allowed to participate in its market) is unthinkable without the support of valid legislation. The only way that AWBI's "decision" could take on a legal character affecting the conduct of the authority, and the economic rights of NEAT (and its growers) and of other Australian growers who wished to export wheat to the world market, is by force of the Act. And then only if the Act gives such authority in clear and unmistakable terms. [103]
[122] The submission that AWBI was under no duty to make a decision as envisaged by s 57(3B) of the Act, should also be rejected. [104] AWBI was an identified repository of a power conferred upon it by an Act of the parliament. As the primary judge found, without a decision by AWBI "a large part of the scheme created under s 57 would become unworkable". [105] In the Full Court, Gyles J, who otherwise would have withheld relief, expressed a view accepting that s 57(3B) may impose "an enforceable duty upon [AWBI] to give an answer when requested". [106] I regard it as unthinkable that AWBI could simply ignore, or unduly delay, a consultation that the authority was obliged by the Act to conduct with it upon receiving an application for consent to the export of wheat. In the result, AWBI did not do either of those things. In each case it acted with a speed made possible by its inflexible and publicly stated approach to all such applications.
[123] It follows that it is the Act that provides for, requires, and gives legal force to, AWBI's "decisions" relevant to NEAT's applications. It is the role performed for the purposes of the Act, and not the corporate structure of AWBI, that determines the character of the "decisions" in question in this appeal. Other decisions made by AWBI may indeed have the character of decisions by a private corporation operating within the private sphere. But, at least in so far as its decisions have the consequences provided for in s 57(3B) of the Act, they are decisions outside the private curtain. They are subject to public scrutiny. They are decisions of an administrative character made under an enactment, as that expression is used in the ADJR Act.
[124] Two further provisions in s 57 of the Act reinforce this conclusion. The first, in s 57(6), is the immunity provided from the operation of another public regulatory law, namely the TPA, for AWBI's decisions "under and for the purposes of" s 57 of the Act. [107] The second is the provision in s 57(7) obliging the authority, by the end of 2004, to conduct a review and report to the minister on the conduct of AWBI, including in relation to "the granting or withholding of approvals for the purposes" of s 57(3B).
[125] If all that AWBI were doing, in providing and withholding approval under s 57(3B), were the severable conduct of a private corporation acting under corporations law (and amenable only to corporate disciplines) the last two subsections of s 57 would not appear. Those provisions confirm that the "decisions" made by AWBI, as contemplated by s 57(3B), are decisions that assume special public law characteristics.
[126] In light of the foregoing analysis, the conclusion of the primary judge that AWBI's export approval decisions were "expressly or impliedly authorised" by the Act and that s 57(3B) gave legal "force or effect" to such decisions, [108] was correct. This appeal does not present some of the more difficult problems that can arise at the intersection of regulation and commerce, and the exercise of public and private power. [109]
[127] The errors of the Full Court : The judges in the Full Court adopted a different approach. Heerey J concluded that, in making its decisions to refuse approval to the authority's consent to NEAT's applications, "AWBI was outside the province of administrative law". [110] His Honour reached this view on the basis of the suggested legislative intention that AWBI should be "a vigorous, monopolistic participant in the Australian wheat export market". [111]
[128] Mansfield J [112] and Gyles J did not find it necessary to express a concluded view on this point. However, in his reasons, Gyles J expressed the opinion that, in acting as it did in pursuit of its "commercial interests", AWBI was outside the ambit of s 5(2)(f) of the ADJR Act or the common law principle reflected in that provision. [113] In his view, the "reach of administrative law" could extend to decisions made by AWBI for the purposes of s 57(3B) in some circumstances, including where it could be shown that the decision was "not bona fide". [114] But, on his Honour's approach, the present was not such a case. This seems to suggest that Gyles J considered that the decision could be "administrative" in character and subject to review for some purposes, but not for others. With respect, this is an approach difficult to reconcile with the terms of the ADJR Act.
[129] The approaches adopted by the Full Court are vitiated by a number of errors. First, as I have pointed out, it is the "decision" that needs to be characterised in order to determine if it falls within the scope of the ADJR Act, not its maker. For the purposes of characterising the decision, it is erroneous to focus on the formal character of AWBI as a private corporation, to the exclusion of all the other considerations.
[130] It is also inappropriate to fix upon the "commercial" nature of the approval decisions, without recognising the exceptional character of those decisions and the role that they played in the regulatory scheme. Ordinarily, a private corporation cannot make decisions that have an effective power of veto over the entitlement of competitors, or potential competitors, to participate in a given market. No provision of corporations law gave AWBI such a power. The only source of such power was s 57(3B) of the Act.
[131] To say that an approval decision by AWBI is made in the exercise of its general powers and pursuant to its corporate constitution does not advance the analysis. It frames the question in a way that makes it simpler to answer, but it strips the problem of its inherent complexity. [115] For the board of a private corporation to adopt a resolution restricting the right of a competitor to participate in its market would be a meaningless exercise. Without s 57(3A) of the Act and particularly s 57(3B), any such "decision" by AWBI would be legally impotent. Even if a corporation were able to give force or effect to a resolution to exclude a competitor from its market by wielding its sheer economic power, any such action would be likely to run afoul of the TPA.
[132] Commercial considerations may indeed have guided the decision of AWBI as to whether to give or refuse approval to the authority's consent to the bulk export of wheat by NEAT. They could properly do so. So much was never denied by NEAT. However, the reason that the Act required such a "decision" on the part of AWBI was for the purposes of the administration of a statutory scheme for a form of export marketing monopoly as enacted by the federal parliament.
That was also why the Act provided immunity from the application of statutory regimes (such as the TPA) that would otherwise apply to "commercial decisions" of a private corporation.
[133] In so far as private corporations are entrusted under a statute with public functions affecting others, they are thereby rendered liable to administrative law remedies and, depending upon the terms of the legislation, quite possibly to the writs provided by the Constitution. [116] The mere fact that such a decision may be affected, or guided, by considerations of a commercial nature will not take it outside the ambit of such judicial review.
[134] It may be that the statutory conferral of monopoly status on AWBI as a private corporation, in itself (particularly when viewed with the added fact that it was formed from what was once a public body) could impose obligations to observe the norms and values of public law, adapted by analogy, in particular instances of its decision-making. [117] In such circumstances, quite apart from administrative law, it has sometimes been viewed as appropriate to impose duties to the community upon such corporations out of recognition of the particular powers they enjoy. [118] In light of my conclusions about the special statutory position of AWBI, and the fact that the impugned decisions were both required and made effective by the Act, elements sufficient to make them fall within the scope of the ADJR Act, it is unnecessary for me to rely on any broader principle.
The exercise of power: principles
[135] The blanket approach : The determination of the character of the "decision" made by AWBI logically comes first. If AWBI's "decision" is not characterised as falling within the ambit of the ADJR Act, NEAT's endeavour to attack the validity of the "decision" in accordance with that Act would fail at the threshold. No question would then arise as to whether the impugned "decisions" involved an improper exercise of power, and if so, what are the consequences. That was the approach of Heerey J in the Full Court. [119] That approach has now been adopted in the joint reasons in this court.
[136] But once it is decided, as I think it should, that the "decision" of AWBI to grant, or withhold, approval in accordance with s 57(3B) of the Act is administrative in character and made under the Act, it is my view that the successive decisions to refuse approval to NEAT's applications made pursuant to the policy of blanket refusal were invalid.
[137] Discretionary decisions and policy : It is not unlawful for a repository of statutory power to adopt a general policy for the purposes of dealing with numerous cases or applications, to ensure that the power is consistently exercised by reference to relevant considerations. [120] A policy that structures the discretion and provides guidance for its exercise will usually be lawful and can often be desirable. Additionally, a decision-maker upon whom is reposed a discretion, such as that reposed in AWBI, would also be entitled to adapt and change the policy from time to time, [121] so long as it remains within the strictures of the relevant enactment.
[138] However, adopting any method for making a discretionary decision, including the use of a legally permissible policy, does not relieve the decision-maker of the need to consider the individual circumstances of each application that comes before it. The reasons that lie behind this requirement of individual decision-making are clear. If the parliament had intended a common rule to apply, it would have said so to the extent that that would be constitutionally valid. By reposing a discretionary power, and duty, upon a decision-maker to make individual assessments, the legislature contemplated the possibility that those affected might make representations concerning decisions potentially having important consequences for them. It recognised (as common experience also teaches) that exceptional cases can arise so as to warrant special or particular treatment. Unthinking, inflexible administration can be an instrument of oppression and abuse of power, taking the decision-maker outside the purpose for which the power was granted. [122] The essence of lawful public administration in the exercise of a discretion (as of good decision-making generally) is to keep an open mind concerning the justice, reasonableness and lawfulness in the particular case, even if this sometimes involves a departure from a general policy. [123]
[139] AWBI's policy and the Act : AWBI's policy was not one that sought to structure the discretion conferred under the Act, so as to indicate the criteria that would be taken into account, or the circumstances in which it was likely to grant or withhold approval. Rather, it was a policy to refuse all applications for approval. A number of elements in s 57 indicate that the parliament contemplated that AWBI would engage in individualised rather than "blanket" decision-making for the purposes of giving or withholding its approval.
[140] The Act requires the consent of the authority for each proposed export of wheat by a trader other than AWBI. It obliges the authority to consult AWBI. If there were no point in doing so, the parliament would not have so enacted. It should not be imputed that it set about enshrining in the Act a charade, having the appearance of consultation but no substance because the decision of AWBI was already cut and dried. Similarly, the fact that the approval of AWBI is required in each case of an application to the authority, as a precondition to the authority's own consent power, signifies that a decision is contemplated case by case. As well, the obligation to accompany the application with a fee, [124] payable to the authority, is another indication that the parliament envisaged a real process having a true utility to the applicant; not a futility doomed from the outset to fail. It would be truly malign to design a statutory scheme whereby an applicant would have to pay a fee in order to receive a predetermined, unvarying rejection of the application. That may happen in Kafka's works but not, at least so far, in Australian public administration.
[141] This conclusion is still further reinforced by the statutory obligation of the authority to issue guidelines about the matters that it would take into account in granting consent. If the authority's consent is subject to an individualised decision, in accordance with its guidelines, it is hard to imagine that AWBI, having the power of effective veto on such decisions, could act on the basis of a blanket prohibition of granting approval, whatever the circumstances of the individual application, thereby rendering the authority's consent process superfluous. The requirement of a review and report to the minister on the conduct of AWBI [125] is yet a further indication that individualised conduct was expected by the parliament. Had it been intended to condone an unyielding monopoly in favour of AWBI, irrespective of particular circumstances, ordinary principles of construction would require that this be spelt out in the legislation in plain terms. [126] It is not.
[142] The foregoing reasoning explains my conclusion that it was not permissible for AWBI to adopt a blanket policy of refusing approval in exercising its function under s 57(3B) of the Act. The Act sought to establish a "single desk" for the marketing of export wheat, whereby one company, namely AWBI, would hold the right to export wheat from Australia. However, the parliament left open the possibility of individual traders being allowed to export outside of AWBI's pools. It did not consider that such an approach would undermine the "single desk". That approach simply continued the arrangements that had been in place before the restructure of the board. It involved a particular accommodation of the "public" and "private" interests involved in exporting wheat from Australia, in turn reflecting the realities of the international markets for that cereal.
[143] The single-desk selling arrangement has been maintained for the export of wheat because of the interventionist policies of the United States of America and the European Union that "can substantially reduce international wheat prices" through "varying forms of domestic support and export subsidy programs". [127] The parliament recognised that Australian wheat growers were unable to set or control such international prices. The statutory purpose was to "maximise the net returns to growers", through avoiding situations where Australian wheat traders were competing with other Australian wheat traders. [128] This explains why AWBI was given such a key role in the regulation of exports by other traders (who were otherwise its competitors). That role extended beyond consultation, to a power of effective veto. But the price of such veto power was that AWBI would assess the impact of any proposed export upon its own commercial interests, before such export could be allowed to go ahead.
[144] The blanket policy of refusal adopted by AWBI amounted, in effect, to the rewriting of the legislation by the decision of a private company. One of the options canvassed in the explanatory memorandum prepared for the amendment of the Act was to grant the monopoly for all wheat exports to the grower company. However, that option was eventually not chosen. [129] Nor did the parliament decide to simply legislate the monopoly for all bulk exports to the grower company. If it be needed, that is yet a further indication that the stance taken by AWBI is quite contrary to the purpose of the parliament.
[145] The provision in the Act for a case by case consideration of applications for proposed bulk export illustrates why it is incorrect to say, as officers of AWB and AWBI asserted on many occasions, that the grant of approvals by AWBI, that may result in bulk export consent from the authority, would undermine the single-desk selling arrangements. The grant of approval by AWBI in a particular case and its fact-specific circumstances did not establish any precedent for the grant of future approvals -- either for the same trader or type of wheat, or for the same destination. The legislation did not provide for approvals that would cover particular growers or traders, periods of time, or export destinations. In fact, AWBI was free, and was required, to reassess the impact of each application on its own activities individually. In a real sense, the general principle would be reinforced by occasional and particular exceptions permitted on their special individual merits as the Act envisaged. It is an old adage that the exception proves the rule.
[146] Where a decision is subject to judicial review, the grounds of review that would be available and appropriate will depend upon the statutory and decision-making context. It follows from the foregoing analysis that the ground of review contained in s 5(2)(f) of the ADJR Act, invoked by NEAT, was applicable to the "decision" of AWBI to grant or withhold approval by reference to the legislative language and purpose. [130]
The exercise of power: unlawful inflexibility
[147] The primary judge found that "AWBI had a policy against approving the bulk export of wheat"; [131] that it was "this policy, and this policy alone, which dictated the rejection of each of NEAT's applications"; [132] and that AWBI's "decisions in this case were clearly made in the inflexible application of its policy against bulk export permits". [133] In the light of that finding, and the proper application of the Act and of the ADJR Act, it is my opinion that the primary judge, and the Full Court, erred in failing to provide relief to NEAT.
[148] The primary judge justified withholding relief on the basis that AWBI's policy and its adherence to that policy were consistent with its constitutional charter and that NEAT did not provide any information or reasons for AWBI to depart from that policy. Her Honour explained: [134]
No material was put before AWBI which challenged the legitimacy of those considerations, or which provided any argument to the effect that the bulk export permits which were sought could be granted in a manner that was consistent with AWBI's constitutional mandate. In other words, no material was put before AWBI which could be expected to persuade it to deviate from its policy.
In the Full Court, Mansfield J adopted a similar approach. [135] With respect, these considerations did not afford a ground for denying relief.
[149] The departure by AWBI from the Act was not, as the primary judge thought, excused or permitted because of the general character of AWBI as a private corporation; the terms of its corporate constitution; its general commercial purposes; or the adoption of a general policy in favour of the single-desk sale of overseas wheat. The fact that the blanket refusal of approval may have been consistent with the constitutional charter of AWBI and AWB is to a large extent irrelevant. Where the federal parliament has validly spoken in the terms that it did in the Act, no instrument or action under the Corporations Law of Victoria could give any foundation for a departure from the obligations imposed by the federal legislation.
[150] Repositories of statutory functions and powers must keep their minds open for the exceptional case. [136] They must not disable themselves from exercising their discretion by adopting a rule "not to hear any application of a particular character by whomsoever made". [137] At least they must not do so without clear authority of law permitting that course. There was no such clear authority in the present case. The postulated excuses connected with AWBI's general corporate character did not relieve that body of its duty under the Act to consider a request for its approval as the Act contemplated: judging each of NEAT's applications by reference to its peculiar features as they were put before it and by the way each affected (or did not affect) its own commercial interests.
[151] Nor, with respect, was it correct to say that NEAT did not make out a case for relief. The objective and largely uncontested documentary evidence denies that conclusion. For example, in an e-mail sent by NEAT to the authority in support of its first two applications, involving the export of ADR3 to Italy and Morocco, it was noted that the Italian buyers were "being offered low quality durum from the USA" and that at that point AWB was "not quoting a price for ADR3 to Australian farmers". A number of communications were sent in support of the fifth application for export, also to Italy. The documentation referred to ADR Feed for use by a particular Italian importer for human consumption as pasta. It was pointed out that NEAT's buyer wanted to conclude the deal quickly and did not wish "to buy commingled stocks". Apart from offers from US sellers, in an e-mail to AWBI, NEAT pointed out that while it was waiting for consent, the buyer purchased "two cargoes of low quality Turkish durum" and "another Turkish tender" was due in the following week. The wheat was otherwise exposed to the risk of rotting in Australia unless it was quickly sold. If it were not sold it would be of little or no value to anyone. Clearly what was advanced was a highly fact-specific case. Conscious of AWB and AWBI's interests, NEAT went on to point out that it was simply holding a specific bid, and "has not made any offers to Italy".
[152] In a passage cited earlier in these reasons, the primary judge found that given AWBI's approach to its functions, NEAT's "applications were bound to be rejected in any event" given the unyielding nature of AWBI's policy. Any other individual considerations or arguments were not taken into account. It is apparent that at least some of NEAT's applications were rejected by AWBI without regard to the evidence of their individual merits (including the possible effects on AWBI's commercial interests). Once that conclusion is reached, it is not the role of a supervising court to form its own view about the way in which a repository of power would have assessed the merits of the case put before it, if it had considered the application properly. At least on the face of things, some of the applications did not appear to affect AWB and AWBI's commercial interests. Whether or not AWBI would have reached that conclusion, we cannot know. What we do know is that AWBI was not even prepared to listen.
[153] The assessment of each individual application and the supporting documentation enlivened a role that AWBI was obliged by law to perform. True, its own commercial interests and the returns to the growers who were shareholders of AWB were accorded primacy under the regulatory scheme. But by law, AWBI still had to turn its mind and genuinely consider the effect on those interests of each application that was put before it. It could not shut its ears. To adopt such an approach to making the decisions required, before the authority could give its own consent, was a small price to be paid for the extensive powers conferred by the Act on AWBI. AWBI refused to pay that price. The primary judge and the Full Court therefore erred in withholding the relief to which the reasoning correctly adopted by the primary judge otherwise inexorably pointed.
The provision of relief was not futile
[154] It was not futile for NEAT to seek relief under the ADJR Act. Had its original application to the Federal Court succeeded promptly, as that Act envisages, AWBI would not have been required to grant the approval. In proceedings under the ADJR Act, the Federal Court does not give a decision on the merits. AWBI would simply have been required to consider the sought-for "approval" on the individual merits of each application rather than pursuant to the blanket refusal that it had adopted.
[155] In the Full Court, and in this court, NEAT acknowledged that such a course was no longer feasible given the passage of time. However, the application under the ADJR Act remained relevant to NEAT's contention that AWBI's purported conduct was not done "under" s 57(3B) of the Act or "for the purposes" of that section. [138] The determination of the point against AWBI would leave it exposed to proceedings by NEAT pursuant to the TPA, deprived of immunity under that Act. It was therefore relevant to those proceedings. Those proceedings should continue. NEAT is entitled to have its consequential rights under the TPA determined according to law.