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Key decisions

  • Applied Medical Australia Pty Ltd v Minister for Health [2016] FCA 35
  • Australian Competition and Consumer Commission v Australian Egg Corporation Limited [2016] FCA 69
  • Sayed v Construction, Forestry, Mining and Energy Union [2016] FCAFC 4


The conundrum of whether a decision was of an administrative or of a legislative character – a decision not to vary or revoke certain rules

In Applied Medical Australia Pty Ltd v Minister for Health [2016] FCA 35 (5 February 2016), the Court dismissed an application for judicial review by a manufacturer and supplier of medical devices for surgical procedures (‘Applied Medical’).

The main decision that was the subject of judicial review was a decision by the Minister’s delegate to reject an application to lower minimum group benefits applying for a sub-group in the Private Health Insurance (Prosthesis) Rules 2015 (No 1) (Cth).

Applied Medical sought review under both s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and s 39B of the Judiciary Act 1903 (Cth).

An initial issue considered by the Court (Robertson J) was whether the impugned decision, and a failure to decide, were administrative decisions made under legislation. After considering many authorities, Robertson J concluded (at [35]) that ‘while the making of the Private Health Insurance (Prostheses) Rules is to be characterised as legislative, as also would be varying or revoking those Rules in whole or in part, deciding to grant or deciding not to grant an application under s 72-10(2) [of the Private Health Insurance Act 2007 (Cth) is of an administrative character . . .’ Further, deciding not to act under s 333-20 of the Private Health Insurance Act 2007 to vary the list in the Private Health Insurance (Prostheses) Rules was held to be of an administrative character (at [42]-[48]).

Accordingly, there was jurisdiction for Applied Medical’s application for judicial review of administrative action. However, the Court rejected the various grounds of review including the allegation that there had been an improper exercise of discretionary power in accordance with a rule or policy without regard to the merits of the particular case. In this context, Robertson J said (at [112]):

‘Once the repository of a discretionary power has considered an application for the non-application of the policy or a change in policy and has given a reason, other than the bare restatement of the policy, for rejecting that application, it is difficult to conclude that the discretionary power has been exercised inflexibly in the relevant sense’.

What was relevant to the Court’s general rejection of the grounds of judicial review was that the minute of the Minister’s delegate was not to be regarded as a formal statement of reasons (see (at [19]-[20]) citing observations of the High Court in Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 50 (at [25] and [72])).

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