Kinds of Commonwealth statutory authority 

"Statutory authority" is a description, not a legal category. Before asking what a Commonwealth body can do, a student must ask a prior question: what kind of entity is it, and under which Act? The answer determines whether the body has its own legal personality, who its accountable authority is, and what the right question about reviewability even looks like.

The statutory taxonomy

The Public Governance, Performance and Accountability Act 2013 (Cth) — the PGPA Act¹ — supplies the framework. Section 11 is short and does a great deal of work:

There are 2 types of Commonwealth entities: (a) a corporate Commonwealth entity, which is a Commonwealth entity that is a body corporate; and (b) a non-corporate Commonwealth entity, which is a Commonwealth entity that is not a body corporate.

The Act's own note states the consequence: corporate Commonwealth entities are legally separate from the Commonwealth, whereas non-corporate Commonwealth entities are part of the Commonwealth.

Section 12 adds that each Commonwealth entity has an accountable authority — the person or group responsible for governing it. Do not reach for a board-or-senior-official rule of thumb: s 12(2) is a table keyed to the KIND of entity. A Department of State or a Parliamentary Department has its Secretary; a listed entity has the person or group prescribed by an Act or the rules; a body corporate has its governing body, unless an Act or the rules prescribe otherwise. So the answer follows from the classification, which is why the classification is worth getting right.

Why the distinction is not merely administrative

Legal separateness is not a labelling convenience. A body corporate holds property, contracts and litigates in its own name; an entity that is part of the Commonwealth does none of those things in its own right, because it is not a separate legal person.

That has practical consequences a student meets directly:

• Who is the correct party? Proceedings against a corporate entity name the entity. Proceedings concerning a non-corporate entity's decision are ordinarily framed against the Commonwealth or the relevant office-holder.
• Whose money is it? A corporate entity may hold money in its own right, subject to the PGPA Act's requirements; a non-corporate entity handles money of the Commonwealth.
• Who governs it? A board with statutory functions is a different accountability structure from a departmental official answerable to a Minister.

Regulators are only one kind

Most of the Commonwealth bodies a student meets in administrative law regulate, adjudicate or oversee — the ACCC, ASIC, APRA, the Ombudsman, the tribunals, the integrity commissions. It is easy to acquire the impression that a statutory authority is a body that polices something.

It is not. The Clean Energy Finance Corporation Act 2012 (Cth)² establishes a corporation that invests. The Act makes the Corporation a body corporate that must have a seal and may sue and be sued, and expressly notes that the PGPA Act applies to it as a corporate Commonwealth entity. Its function is an investment function, and it has a Board whose members hold office for terms of up to five years.

Asking whether such a body is "a prosecuting authority" is a category error. The useful questions are different ones: what function does the Act confer, on what terms, and subject to what direction?

The enabling Act, not the label, confers the power

The PGPA Act tells you what kind of entity a body is. It does not tell you what the body may do — that is always its own enabling Act, and enabling Acts differ far more than the taxonomy suggests.

The Clean Energy Finance Corporation Act illustrates how specific that can get. Section 10 provides that the Corporation may perform its functions only in accordance with that section, and then sets out the constitutional bases on which it may act — the principal one being the external affairs power, including giving effect to the Climate Change Convention and the Paris Agreement. An express constitutional-limits provision of that kind is not typical, and it means a question about the Corporation's capacity is partly a constitutional question rather than purely a statutory one.

Working out accountability and review

There is no single answer to "is this body's decision reviewable?", and the honest position is that the question has to be worked through rather than assumed:

1. What is the decision? A regulatory decision made under an enabling Act sits differently from a commercial or investment decision made by a corporation exercising a statutory function.
2. Under what provision was it made? Judicial review under the general administrative law statutes turns on the character of the decision and the Act under which it is made.
3. Is there a merits-review pathway? Some enabling Acts provide one; many do not, and its absence is a feature of the scheme rather than an oversight.
4. What else applies? Reporting obligations under the PGPA Act, ministerial direction powers, audit, and parliamentary scrutiny operate whether or not a court will review a particular decision.

Applying this in a problem question

1. Name the body and find its enabling Act before anything else.
2. Establish whether it is a corporate or non-corporate Commonwealth entity, and say what follows for legal personality and the correct party.
3. Identify the function actually conferred, and read any provision limiting how it may be performed.
4. Identify the accountable authority, and whether the Act provides for ministerial direction.
5. Only then ask about review — and frame the question around the decision's character and the Act it was made under, not around the body's label.

Self-check

• Have I identified the entity type under s 11, rather than calling the body a "statutory authority" and moving on?
• Have I read the enabling Act for the function, rather than assuming a regulator's powers?
• Have I checked whether the Act limits the constitutional or statutory basis on which the function may be performed?