Australian Broadcasting Tribunal v Bond
High Court of Australia · 1990
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
The respondents challenged eighteen decisions, findings and rulings at once. Which of them could be reviewed at all, and how wrong does a decision have to be?
Li holds that unreasonableness is not confined to decisions that are irrational or bizarre: what reasonableness requires is a question of statutory construction, and a decision may be unreasonable where it lacks an evident and intelligible justification. So a formulation of Bond that presents the ground as reachable ONLY by the most extreme decisions now understates it. Bond's distinction between a reviewable decision and conduct is untouched; it is the width of the unreasonableness ground that has moved.
What happened?
The respondents attacked a broadcasting tribunal's inquiry wholesale, seeking relief in respect of eighteen decisions, findings and rulings at once — eleven of which they described as "decisions" and seven as "conduct". The questions were which of those the ADJR Act let them review at all, and on what ground.
What did the Court decide?
Not every step on the way to an outcome is a reviewable "decision" under that Act. What it reaches is ordinarily an ultimate or operative determination, substantive in character, with conduct engaged on a separate footing — but Mason CJ allowed an exception where the statute itself provides for a finding or ruling on the point, so that an intermediate decision may still be a decision under an enactment. And even where a finding is not independently reviewable, it is not beyond reach: reviewing the operative decision on a permissible ground exposes the reasons given for it and the process by which it was made. On unreasonableness the Court applied the statutory ground in s 5(2)(g) and treated it as demanding.
Proposition
What is the principle?
Under the ADJR Act a reviewable "decision" is ordinarily an ultimate or operative determination and substantive in character, so a conclusion reached as a step along the way is not — unless the statute itself provides for a finding or ruling on that point. Findings that are not independently reviewable are still not beyond reach, because reviewing the operative decision on a permissible ground exposes the reasons given and the process followed.
Why does this case matter?
The trap is thinking that any of this converts a factual complaint into a legal one. It does not. Review still requires a permissible ground, and "the tribunal got the facts wrong" is not one however it is arranged on the page — the respondents here had findings described as erroneous and still could not have them set aside on that basis alone. What the case changes is what may be looked at, not what may be complained of.
Read the statute, not the slogan. This is a decision about what the ADJR Act reaches, and the supervisory jurisdiction at common law is not bounded the same way. Treating Bond as a general theory of judicial review is the most common way of overreading it, and it is an easy error to make because the language sounds constitutional.
Watch the date on the unreasonableness discussion too. The note on later authority below explains what has since changed, and a submission built on the 1990 formulation alone argues from a narrower ground than the law now provides.
Exam and application relevance
Start by asking what the enactment makes reviewable, and check whether the statute provides for the particular finding — if it does, the intermediate determination may be reviewable in its own right. Where it does not, aim at the operative decision and name a permissible ground; do not assert that an antecedent finding is challengeable simply because it influenced the outcome, and do not dress a factual disagreement as a ground. If the complaint is about how the decision-maker proceeded rather than what they concluded, consider the conduct route. On unreasonableness, argue the current formulation and what the statute required of this decision-maker.
Check your understanding
A finding that is not itself a reviewable decision can still be put before the court. What has to be true of the argument for that to work?