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Western Australian Student Law Review |
ROBERTO MUSOTTO[*]
JUDICIAL REVIEW— PUBLIC POWERS— WELFARE STATE— PRIVATISATION— ACCOUNTABILITY— JUSTICIABILITY
ABSTRACT
Unresolved issues of justiciability and jurisdiction, regarding whether the test for judicial review is available to a body is determined by the body’s structure (private or public), or by the function of the power exercised by the body, still remain. Almost 20 years since the High Court decided in NEAT that private bodies making decisions of a public nature will not be subject to judicial review, the scope and reach of quasi-public functions are broader than ever, particularly in areas such as public cyber security and government data sharing. However, the extension of judicial review to private bodies in Australia is controversial and uncertain in its application. This article argues that the uncertainty regarding the best approach to extending judicial review to private bodies is a reflection of varying political and economic ideologies surrounding the relevance of the Welfare State and what the role of government action should entail. Australian Courts should be empowered to review quasi-public functions by moving away from a strict binary public/private distinction in favour of a faded approach to exercising public functions.
I INTRODUCTION
The High Court in NEAT Domestic Trading Pty Ltd v AWB Ltd (‘NEAT’)[1] stated that access to judicial review should be confined to public bodies, meaning that a person aggrieved by the decision of a private body exercising public functions will not be able to rely on public law remedies such as judicial review.[2] Almost 20 years since that decision, important issues of justiciability and jurisdiction remain unresolved, with academic literature and case law continuing to consider a recurring question: what makes a decision justiciable under judicial review? Is it the public or private character of the body making the decision or is it the function of the power being exercised by that body?
Three schools of thought exist when considering what is the function of the power exercised by a relevant body and what determines a body’s public or private character. Firstly, the evolution of case law following NEAT demonstrates that there is a lack of transparency and public accountability for private companies that perform public functions.[3] This ‘undoubted uncertainty’ surrounding the extension of judicial review to private bodies under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘ADJR Act’) has not been clarified by Australian courts.[4] Secondly, it is argued that this extension reflects, to a degree, a different idea of the Welfare State, meaning the form of government that promotes and protects the well‑being of its citizens. In the case of private bodies exercising public functions, the question is whether or not it would be appropriate to extend a state’s judicial review powers into the operations of a private company. Therefore, the decision in NEAT might be reconsidered soon, given that it reflects an arguably outdated idea of state functions which are not correlated with the private or public character of the body. Thirdly, an analysis of the reasoning in NEAT shows that courts are well equipped to determine whether a body’s function falls within a public or private sphere, however, they are not the most appropriate forum to decide whether judicial review should be extended to private bodies. Such an extension of power is a political decision and, as such, should be exercised by the executive power of government. This article argues that a rigid division between public and private spheres is inadequate for determining the judicial reviewability of decisions. Instead, a less liberal approach that considers solely the functions performed by private bodies, rather than relying on their legal form as well, allows for a more flexible and adaptive framework in addressing issues of governance and accountability. This article provides a summary of the facts of NEAT and the Court’s reasoning, before analysing the decision’s impact in light of the three schools of thought identified.
II NEAT: AN OVERVIEW
A Facts: A Wheat Problem
NEAT Domestic Trading Pty Ltd (‘NEAT Pty Ltd’) was a domestic and international grain trader, engaged in the business of exporting durum wheat.[5] In order to export wheat, NEAT Pty Ltd had to obtain authorisation from the Wheat Export Authority (the body that regulated the Australian wheat market).[6] The Wheat Export Authority’s authorisation then had to be approved by AWB (International) Ltd (‘AWBI’),[7] a private company that also exported wheat.[8] Under the Wheat Marketing Act 1989 (Cth) (‘Wheat Marketing Act’), AWBI did not need to obtain consent from another body to export its own wheat.[9] AWBI operated as a pool company that would negotiate the sale of wheat overseas that had been sold to AWBI by other growers, and consequently, operated as a ‘single desk’ for the marketing of export wheat from Australia.[10] However, the Parliament had ‘left open the possibility’ of individual traders being allowed to export outside of AWBI’s pools, meaning NEAT Pty Ltd was AWBI’s competitor.[11] In order to maintain its market share, AWBI applied a strategy of withholding its consent for NEAT Pty Ltd to export wheat, described as a ‘blanket policy of refusal’.[12] In the relevant period, the Wheat Export Authority refused six applications made by NEAT Pty Ltd for bulk export of durum wheat on the basis that the AWBI did not give its approval.[13] NEAT Pty Ltd brought proceedings seeking relief under the ADJR Act on the basis that AWBI’s refusal to approve NEAT Pty Ltd’s application was a decision of an administrative character made under an enactment.[14] The Federal Court at first instance and the Full Court of the Federal Court on appeal both dismissed NEAT Pty Ltd’s claim that AWBI’s decision to refuse to approve the application for consents was incorrect on the basis that AWBI was a private company and,[15] as such, its decisions were ‘outside the province of administrative law’.[16] NEAT Pty Ltd appealed to the High Court.
B The Context: Privatisation of Public Functions
The primary question for the High Court was essentially whether the AWBI’s decision would fall within the scope of judicial review.[17] In deciding this, the Court had to consider whether it was the public or private character of the body that would determine whether the decision made is of an administrative character or whether the type of functions exercised by that body are more relevant. This was a significant question, given that many of the powers and services that were historically the responsibility of the Australian government had become privatised, meaning the implications of this decision affected a number of private entities exercising public functions.[18] The question facing the Court can arguably be considered as a complex one, as the Court had to decide whether AWBI, a private entity that was exercising a power given by statute, was subject to judicial review.[19]
In determining this issue, the Court in NEAT had to decide which reviewability consideration should prevail when private bodies exercise public functions; namely, whether it is the legal form of the decision-making body, or the function of the power being exercised that determines whether the decision can be subject to judicial review. NEAT Pty Ltd contended that AWBI’s decision was of an administrative character, made under enactment,[20] and thus would have been reviewable under the ADJR Act. Ultimately, the Court decided that the body’s legal form is the correct test in Australia[21] for two main reasons: the legal form of the body and the way the statute operates. By examining how the statute functions, one can determine the ultimate body accountable for the decision. By looking at whether the ultimate body accountable for the decision is public or private, it determines whether its decision could be reviewable under the ADJR Act. This approach ensures a baseline framework for evaluating the potential for judicial review of decision-making bodies. These reasons will be considered in greater detail in the following section.
C The Judgment: A Private Body Operating in the Public Sphere
The majority (per McHugh, Hayne and Callinan JJ) ultimately concurred with the Full Court of the Federal Court and found that public law remedies may not be imposed where AWBI fulfils its role under the Wheat Marketing Act.[22] However, their Honours noted that they had not answered the more general question of ‘whether public law remedies may be granted against private bodies’.[23] Their Honours found that AWBI’s decision was not reviewable because it was the Wheat Export Authority that gave the authorisation.[24] AWBI had merely provided consent for the authorisation to be released.[25] The judges construed the process of AWBI’s approval of providing consent as a condition precedent to the Wheat Export Authority considering whether to give consent.[26] The operation of the statute gave AWBI’s decision the connotation of a procedural step along the way. Therefore, such a consent could not be a decision made under an enactment for the purposes of the ADJR Act.[27] At the same time, the type of body making the decision was considered to be relevant. AWBI, as a private company, was not under an obligation to pursue public policies,[28] but rather to maximise returns for its shareholders.[29] This private purpose meant that it would not have been possible to impose public law obligations on AWBI.[30]
In a separate judgment, Gleeson CJ also dismissed the appeal.[31] His Honour found that it was unnecessary to decide whether AWBI’s decision was of an administrative character made under an enactment. However, his Honour conceded in obiter that AWBI’s interests were not purely private and thus preferred the construction that AWBI’s decision could be reviewable under the ADJR Act.[32] The interest was not private because AWBI had a ‘virtual or at least potential statutory monopoly, which pursued a national interest’.[33] Chief Justice Gleeson’s comments in obiter suggest that size or share of the market and the type of interest or activity pursued could have been considered in the determination of whether the body’s identity is public or private.
Justice Kirby, in dissent, rejected the majority’s view that the character of the body making decisions of an administrative character determines the type of decision made.[34] Rather his Honour argued it is the function exercised by the body that justifies the reviewability of the decision.[35] His Honour reasoned that a different approach would potentially have given AWBI ‘absolute legal power’.[36] In this way, AWBI, a private body with public functions, could have escaped any type of scrutiny of its decisions whenever exercising public functions because it would not fit the correct criteria for the test. Justice Kirby acknowledged that ‘different [...] questions may arise where a review of such decisions is sought under the common law’,[37] but he did not further consider what would happen outside the operation of the ADJR Act.[38]
III THE DECISION’S IMPACT
A A Wrong Turn in Transparency and Accountability in Private Bodies Operating in the Public Sphere?
Post-NEAT, both academic literature and case law have continued to query whether justiciability should be based on the distinction between public and private bodies or on the function of the power exercised. The main development to come from the decision in NEAT is that the principle derived from R v Panel on Take-overs and Mergers; Ex parte Datafin Plc (‘Datafin’),[39] which states that the reviewability of a decision is determined by whether the relevant private body’s function is public or not, has not been applied in Australia.[40] The result is that multiple private bodies that exercise public functions have been protected from public scrutiny.[41]
At the same time, Australian courts, with few exceptions, have avoided deciding whether the Datafin principle could still apply in Australia.[42] This has generated confusion, as the current Australian position, that the legal form of the body determines reviewability, is different from the principle that Datafin suggests ought to apply, being that public function determines reviewability.[43] In Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd,[44] Basten JA noted that there is ‘an absence of authority in Australia addressing the question as to whether Datafin applies’.[45] In that same year, the Supreme Court of Victoria in CECA Institute Pty Ltd v Australian Council for Private Education and Training[46] considered the Datafin principle in light of the decision in NEAT.[47] Justice Kyrou has commented on multiple occasions that, as public functions are further outsourced, the principle from Datafin is ‘essential in enabling superior Courts to continue to perform their vital role of protecting citizens from abuses in the exercise of powers which are governmental in nature’.[48] However, a proposed counterargument to this statement is that the High Court in NEAT had an opportunity to adopt this principle in Australia and declined to do so. Therefore, at the time of writing, judicial review is not a remedy available for private bodies, even in the event that they exercise public functions.
The position differs, however, in the context of examination of Australia’s protection obligations, given the High Court’s decision in Plaintiff M61/2010E v Commonwealth.[49] In that case, a private body was engaged as an independent contractor to conduct an ‘Independent Merits Review’ and make recommendations to the Minister for Immigration and Citizenship as to whether Australia owed the applicants protection obligations.[50] The High Court recognised in Plaintiff M61/2010E v Commonwealth that the matter was justiciable by reason of the Court’s jurisdiction under s 75(iii) and s 75(v) of the Commonwealth Constitution.[51] Importantly, the Court was not required to consider questions regarding the reviewability of private bodies’ decisions as the Court unanimously found the matter to be justiciable on the basis of s 75 of the Commonwealth Constitution.[52]
Building on the NEAT principle, superior courts in some states[53] have stated that wherever there is an alternative source of power, such as a contractual one, it would be difficult for a court to justify the extension of its judicial power into the supervision of private bodies. However, this argument fails to acknowledge that Australian contract law might not be the best tool to protect rights of parties, especially when ‘public’ rights are at stake,[54] for example where rights such as health, education or the environment are considered. Contracts protect various rights and interests between parties, but third parties may also have their rights affected without being parties to the relevant contract. One example could be the sublease of a mine site between private companies. It is unlikely that a private contract between the two companies could provide broader protection regarding public environmental and health risks associated with the exploitation of the mine. A second issue with this argument is that it is not clear why it is acceptable for a private body that pursues the commercial motive of ‘maximising returns’ to be capable of making decisions that may affect the general public, despite its decisions not being subject to public scrutiny through judicial review.
What is undeniable is that there is still uncertainty in the courts. Some lower courts have applied the principles from Datafin,[55] proving to be more flexible than the High Court, as pointed out by Professor Groves.[56] Other courts have refused to consider it.[57] For example, the Supreme Court of Victoria recognised the applicability of the Datafin principle in Victoria,[58] but later backtracked[59] and refused to extend the law of judicial review to the circumstances excluded in NEAT (ie, where a quasi-public body makes decisions of administrative character, empowered by a statute). Therefore, the only thing that is certain is that the application of these principles is controversial and depends on the source of power and the identity of the body making the decisions.
B Judicial Review in a Welfare State: Is the NEAT Decision Too Liberal?
Ultimately, the implications for choosing one principle for judicial review over the other needs to be weighed with reference to whichever idea of Welfare State, the form of government that promotes the well-being of its citizens, is advanced. A liberal type of Welfare State might put faith in the private economic market, as noted by the Hon Ronald Sackville, suggesting that the decisions of private bodies do not need to be judicially reviewed because the forces of a free market will hold entities accountable.[60] Such an interpretation would justify the principle from NEAT. Put another way, the decision of a private company would not be judicially reviewable because the market and its stakeholders would hold the private body to account.[61]
However, the issue with this position is that holding public and private bodies to account is driven by different needs.[62] As pointed out by Arora, this theory assumes that the company’s shareholders and market regulators are the stakeholders that are supposed to make private bodies accountable for upholding values of public law.[63] Shareholders and market regulators, however, do not pursue the values of the public at large and this can give rise to a conflict of interest when the survival of the company clashes with the perseverance of public values.[64]
On the other side of the spectrum, a conservative type of Welfare State would try to harness values of fairness and accountability into these private companies.[65] This is where the principle from Datafin would sit. This theory suggests that a private company’s decision would be judicially reviewable if and when it exercises public functions.[66] The Datafin principle, after all, was born in the Court of Appeal of England and Wales in 1986 during the peak of the ‘Thatcherism’ policies, which sought to improve the Welfare State without requiring the public to pay for them.[67] In that period, the executive started withdrawing from some governmental functions to the advantage of private corporations. Therefore, extending the scope of judicial review into these types of private bodies would seem a reasonable way to keep a standard of public accountability for the decision-makers.[68] However, the problem with the Datafin principle is that it does not explain what a public function is and, thus, it relies on judicial comment to determine when a decision would be reviewable.[69] Therefore the rejection of this principle in NEAT could arguably be seen as allowing increased government efficiency as these decisions are freed by review from Courts.[70] The argument is that private companies can operate better in fulfilling their designated functions if they are not burdened with additional checks and controls that government agencies have. This approach recognizes that the decision‑making process can be streamlined, allowing for quicker implementation and potentially reducing bureaucratic hurdles, leading to more efficient outcomes. The underlying assumption in this argument is that private companies are capable of carrying out their designated work competently and responsibly, without the need for ongoing judicial oversight, which could be true if other types of controls, such as auditing, are in place.
Looking to the future, it is likely that the question left unresolved by the High Court’s decision in NEAT, namely whether judicial review should be extended to private bodies that exercise public functions, will be reconsidered. For example, under the new Data Transparency and Availability Act 2022 (Cth), data custodians have the discretion as to what public data may be shared.[71] Private companies in Australia are often the custodians of data in various public areas.[72] Their decision may, however, be judicially reviewable because it is allowed in the statute.[73] Time will tell whether this represents a legislative means to overcome the NEAT decision with regards to ‘public sector data’. However, this development also creates doubt regarding whether courts are the best branch of power to decide on the public/private distinction for reviewability.
C Is Judicial Review of Private Bodies in The Public Sphere a Political Decision?
The reasoning in NEAT shows that the judicial review of decisions made by private bodies is outside the scope of the ADJR Act because these decisions are not made under an enactment.[74] The result of this reasoning is that when the authority exercised by a private body originates from a contractual arrangement, it becomes arguably inaccessible to judicial review.
In other words, NEAT contends that the ADJR Act does not apply to decisions made by private bodies since they do not derive their authority from a statute. Therefore, if a private body's power is based on a contractual agreement, it becomes more challenging to subject its decisions to judicial review.
This interpretation implies that judicial oversight is limited in cases where private bodies exercise public power through contractual arrangements. The absence of a legislative foundation for such power hinders the application of judicial review and because of that, Mantziaris suggests that the High Court should adopt a normative function and declare what the law is with regard to the justiciability of decisions made by private bodies.[75] The High Court has the power to do this under its original jurisdiction provided by s 75(v) of the Commonwealth Constitution. However, following the Hon Patrick Keane, the High Court in NEAT could not decide otherwise. The High Court was bound by its own jurisdiction and the limits of judicial review given by the ADJR Act.[76] Respectfully, this argument is more persuasive because it considers what the scope of the ADJR Act is and the fact that the Commonwealth Constitution had no operation in NEAT.
A reluctance to adopt a normative function to solve this issue is also evidenced by Gummow and Kirby JJ’s observations in Gould v Magarey.[77] Their Honours held that the application of Datafin in Australia should be avoided ‘unless and until it is necessary to do so’.[78] Therefore, courts are likely to avoid deciding on the applicability of the principle in Datafin until the Parliament passes legislation which equips the Courts with statutory instruments that expand judicial review to private bodies in the public sphere.
IV CONCLUSION: FROM BIPOLARITY TO MULTI-POLARITY OF JUDICIAL REVIEW
The decision in NEAT and its application in Australian courts shows that there is still inadequate access to judicial review when public functions are privatised, given that courts have avoided ruling on the applicability of the Datafin principle in Australia.[79] This is possibly because a case has still not landed in the High Court that necessitated the court to explicitly address the Datafin principle. The approach in NEAT reflects a strict bi-polar distinction of public and private spheres, which, as a paradigm, is no longer tenable.[80] This view puts considerable weight on the structure of the body making the decision, a highly liberal perspective, which places significant faith in the market.[81] However, despite calls for the High Court to clarify this uncertain position, the High Court may not be able to change this approach as it pushes the boundaries of its judicial role and jurisdiction into political territory.[82]
[*] Student, Master of Legal Practice, UWA. Roberto thanks Judd Behr, Matt Grice, Paris McNeil and Cassandra Armstrong for their help and suggestions.
[1] NEAT Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; (2003) 216 CLR 277 (‘NEAT’).
[2] Ibid.
[3] See Agricultural Societies Council of NSW Ltd v Christie [2016] NSWCA 331; (2016) 340 ALR 560, 578.
[4] Ibid 578 [92] (Leeming JA), cited in Judith Bannister, Anna Olijnyk and Stephen McDonald, Government Accountability: Australian Administrative Law (Cambridge University Press, 2nd ed, 2018) 48.
[5] NEAT (n 1) 284 [8]–[9], 301 [70]. Durum wheat is a type of wheat commonly used for pasta and semolina.
[6] Ibid 282–3 [5]. See also Wheat Marketing Act 1989 (Cth) s 57(3A) (‘Wheat Marketing Act’).
[7] NEAT (n 1) 282–3 [5].
[8] Ibid 282 [4].
[9] Ibid 321–2 [142]. See also Wheat Marketing Act (n 6) s 57(1A).
[10] NEAT (n 1) 292 [33], 321 [142]. See also Wheat Marketing Act (n 6) s 57(3B).
[11] NEAT (n 1) 321–2 [142]. See also Wheat Marketing Act (n 6) s 57(3B).
[12] NEAT (n 1) 284 [8].
[13] Ibid 292 [34].
[14] Ibid 284 [9].
[15] Ibid 293 [36]–[37].
[16] NEAT Domestic Trading Pty Ltd v AWB Ltd [2001] FCA 1178; (2001) 114 FCR 1, 8 [26] (Heerey J), cited in NEAT (n 1) 293 [37].
[17] NEAT (n 1) 284 [9] (Gummow J), 292 [35] (McHugh, Hayne and Callinan JJ), 307 [93] (Kirby J).
[18] Ibid 297 [49], 300 [67]–[68].
[19] Ibid 284 [11], 296–7 [47]–[49].
[20] Ibid 284 [9].
[21] Ibid 297 [49]–[51].
[22] Ibid 293 [37], 297 [49]–[50].
[23] Ibid 297 [50].
[24] Ibid 297–8 [52]–[56].
[25] Ibid.
[26] Ibid 297–8 [53], 298 [55].
[27] Ibid 298 [56].
[28] Ibid 296 [47].
[29] Ibid 296–7 [47]–[51].
[30] Ibid 300 [63].
[31] Ibid 290–1 [29]–[30].
[32] Ibid 290 [27].
[33] Ibid.
[34] Ibid 308–9 [96].
[35] Ibid.
[36] Ibid 311 [105].
[37] Ibid 309 [98].
[38] Justice Kirby J could have considered whether s 75(v) of the Commonwealth Constitution could be a source of reviewability in such situations or whether AWBI functions were public at common law: Christos Mantziaris, ‘A “Wrong Turn” on the Public/Private Distinction: NEAT Domestic Trading Pty Ltd v AWB Ltd’ (2003) 14(4) Public Law Review 197, 200.
[39] R v Panel on Take-overs and Mergers; Ex parte Datafin Plc [1986] EWCA Civ 8; [1987] QB 815, 847 (Lloyd LJ).
[40] Ibid.
[41] See Mark Aronson, ‘Private Bodies, Public Power and Soft Law in the High Court’ [2007] FedLawRw 1; (2007) 35(1) Federal Law Review, 1.
[42] Alajmi v Macquarie University [2019] NSWSC 1026 [160] (‘Alajmi’); Vergara v Chartered Accountants Australia and New Zealand [2021] VSC 34 [171]–[175] (‘Vergara’). Cf CECA Institute Pty Ltd v Australian Council for Private Education and Training [2010] VSC 552; (2010) 30 VR 555, 576 [99] (‘CECA Institute’); Mickovski v Financial Ombudsman Service Ltd [2012] VSCA 185; (2012) 36 VR 456, 465–7 [30]–[33] (‘Mickovski’). See also Bannister, Olijnyk and McDonald (n 4) 47–51.
[43] See CECA Institute (n 42) 576 [99] (Kyrou J). See also Bannister, Olijnyk and McDonald (n 4) 48–9.
[44] Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190; (2010) 78 NSWLR 393, 413 [81].
[45] Ibid, cited in Alajmi (n 42) [162].
[46] CECA Institute (n 42).
[47] Ibid.
[48] Ibid 576 [99]; Emilios Kyrou, ‘Judicial Review of Decisions of Non-Governmental Bodies Exercising Governmental Powers: Is Datafin Part of Australian Law?’ (2012) 86(1) Australian Law Journal 20, 32.
[49] Plaintiff M61/2010E v Commonwealth [2010] HCA 41; (2010) 243 CLR 319.
[50] Ibid 336 [14].
[51] Ibid 345 [51].
[52] Mary Crock and Daniel Ghezelbash, ‘Due Process and Rule of Law as Human Rights: The High Court and the “Offshore” Processing of Asylum Seekers’ (2011) 18(2) Australian Journal of Administrative Law 101, 107.
[53] Khuu & Lee Pty Ltd v Corporation of the City of Adelaide (2011) 110 SASR 235, 242 [26]; Hinkley v Star City Pty Ltd [2011] NSWCA 299; (2011) 284 ALR 154 [182]; L v South Australia (2017) 129 SASR 180, 216 [138], 217 [141] (‘L v South Australia’), discussed in Bannister, Olijnyk and McDonald (n 4) 48. See also P A Keane, ‘Judicial Review: The Courts and the Academy’ (2008) 82(9) Australian Law Journal 623, 626.
[54] Mark Aronson, ‘Is the ADJR Act Hampering the Development of Australian Administrative Law?’ (2005) 12(2) Australian Journal of Administrative Law 79, 90. See also J Griffiths, ‘Commentary on Professor Aronson’s Article Is the ADJR Act Hampering the Development of Australian Administrative Law?’ (2005) 12(2) Australian Journal of Administrative Law 98, 102. Cf Keane (n 53) 626.
[55] D’Souza v Royal Australian & New Zealand College of Psychiatrists [2005] VSC 161; (2005) 12 VR 42; CECA Institute (n 42); Mickovski (n 42).
[56] Matthew Groves, ‘Outsourcing and s 75(v) of the Constitution’ (2011) 22(1) Public Law Review 3, 10.
[57] Tansley v Royal Australasian College of Surgeons [2020] VSC 587 [98], [154]; Kemppi v Adani Mining Pty Ltd [No 2] [2019] FCAFC 117; (2019) 271 FCR 423, 456 [95]–[96]; Durney v Unison Housing Ltd [2019] VSC 6 [57]–[58]; BFJ Capital Pty Ltd v Financial Ombudsman Service Ltd (in liq) [2019] VSC 71 [47]–[48], [54]–[55]; Alajmi (n 42) [160]–[169]; Tanioria v Commonwealth [No 2] [2017] FCA 1117 [60]–[61].
[58] Victoria v Master Builders’ Association of Victoria [1995] VicRp 47; [1995] 2 VR 121, cited in CECA Institute (n 42) 576 [100].
[59] Vergara (n 42) [162]–[166].
[60] Ronald Sackville, ‘Some Thoughts on Access to Justice’ (2004) 2(1) New Zealand Journal of Public and International Law 85, 85.
[61] Margaret Allars, ‘Public Administration in Private Hands’ (2005) 12(2) Australian Journal of Administrative Law 126, 128.
[62] Ibid.
[63] Neil Arora, ‘Not So Neat: Non-Statutory Corporations and the Reach of the Administrative Decisions (Judicial Review) Act 1977’ [2004] FedLawRw 6; (2004) 32(1) Federal Law Review 141.
[64] Aronson (n 54) 90.
[65] Nicholas Timmins, The Five Giants: A Biography of the Welfare State (Fontana Press, 1st ed, 1995) 433.
[66] Ibid.
[67] Ibid.
[68] NEAT (n 1) 300 [67]–[68] (Kirby J).
[69] Ibid [115]. See also Yee-Fui Ng, ‘In the Moonlight?: The Control and Accountability of Government Corporations in Australia’ 43(1) Melbourne University Law Review 303, 333.
[70] Keane (n 53) 623, 626.
[71] Data Transparency and Availability Bill 2020 (Cth) s 13(1).
[72] James Bromberger, ‘Government Cloud Establishment’, Modis (Web Page, 24 October 2019) <https://www.modis.com/en-au/news-and-insights/case-studies/cs013-government-cloud-establishment/>.
[73] Data Transparency and Availability Bill 2020 (Cth) cl 118.
[74] NEAT (n 1) 293 [55].
[75] Mantziaris (n 38) 201.
[76] Keane (n 53) 623.
[77] Ibid.
[78] Gould v Magarey [2007] HCA 23; (2007) 234 ALR 618, cited in Mickovski (n 42) 466 [32].
[79] L v South Australia (n 53) 221–2 [152]–[154]; Alajmi (n 42) [169]. See also, Sackville (n 60).
[80] Sabino Cassese, ‘New Paths for Administrative Law: A Manifesto’ (2012) 10(3) International Journal of Constitutional Law 603, 607.
[81] Ibid.
[82] Ibid.
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