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Editors --- "Availability of Public Law Remedies Against a Private Company" [2004] AdminRw 10; (2004) 56 Admin Review 60


Availability of public law remedies against a private company

In NEAT Domestic Trading Pty Ltd v AWB Ltd[1] the High Court considered whether the decisions of a corporation were subject to the Administrative Decisions (Judicial Review) Act 1977.

Responsibility for the commercial aspects of wheat marketing had been transferred to three companies, including Australian Wheat Board (International) Limited. An independent statutory body known as the Wheat Export Authority was also created. Section 57 of the Wheat Marketing Act 1989 provided that it was an offence to export wheat without the written consent of the Authority, but AWBI was exempted from the prohibition. Before giving consent to any export of wheat the Authority had to consult AWBI and the Authority could not give a ‘bulk export’ consent without the prior approval of AWBI.

NEAT Domestic Trading made six separate applications to the Authority for consent to export wheat. On each occasion the Authority forwarded the request to AWBI, which refused to give approval. The primary judge found this refusal was pursuant to a general policy not to approve bulk export permits. NEAT argued that the withholdings of approval were decisions of an administrative character made under the Wheat Marketing Act and that AWBI had improperly exercised its discretionary power in accordance with a rule or policy without regard to the merits of the case.

In a joint judgment McHugh, Hayne and Callinan JJ held that ‘public law remedies’ were not available. Their Honours emphasised, however, that their decision depended on the particular structure of the Wheat Marketing Act and did not answer the more general question of whether public law remedies could be granted against private bodies.

AWBI was not created by the Wheat Marketing Act; it was incorporated under the Corporations Law, and its powers and obligations derived largely from that source. For that reason their Honours did not consider the decisions by AWBI were made under the Wheat Marketing Act. In addition, AWBI was obliged by its constitution to pursue its private objective of maximising returns to its wheat growers. It was not obliged to consider any wider ‘public’ considerations arising from the Wheat Marketing Act, and no sensible accommodation could be made between the public and private considerations if AWBI was required to take both into account.

Gleeson CJ also dismissed NEAT’s appeal, but on a different basis. Although it was not strictly necessary for him to decide, he preferred the view that AWBI’s decision was of an administrative nature and made under an enactment. AWBI represented the interests of a large class of primary producers and held at least a potential statutory monopoly in the bulk export of wheat, which was seen to be in the national interest. It was inaccurate to describe AWBI as representing purely private interests. In substance, it exercised a statutory power to deprive the Authority of the capacity to consent in a given case.

There was, however, nothing inherently wrong with AWBI pursuing a policy of not approving bulk export permits since this was consistent with the ‘single-desk’ policy of the Wheat Marketing Act. No reason had been advanced why AWBI should depart from its policy in the present case. NEAT did not present evidence or argument in support of a change of the single-desk policy, nor did it seek to show that the policy was irrelevant to its particular export proposals.

Kirby J, in dissent, emphasised that it was the administrative character of the decision, and not the decision maker, that determined whether review under the Administrative Decisions (Judicial Review) Act was available. The nature of AWBI as a corporation was relevant but not determinative. Other factors suggested that the decision to grant or withhold approval was administrative: the Wheat Act involved AWBI in a regulatory scheme; those seeking export approval were not in a contractual relationship with AWBI; remedies under the Trade Practices Act were foreclosed; and both AWBI and the Authority made decisions pursuant to the same provision regulating the export monopoly. AWBI’s decision was made ‘under an enactment’ because it only had the power to control the Authority’s consent by force of the Wheat Marketing Act; the Act gave its decision legal force. Further, AWBI had a duty to make a decision, since the scheme created under s. 57 of the Act would otherwise become unworkable. Section 57 also showed that Parliament intended AWBI to make individual decisions rather than apply a ‘blanket’ policy.


[1] [2003] HCA 35.


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