Australia: Administrative law - key cases from 2017 and decisions to watch in 2018

Last Updated: 18 January 2018
Article by Greg Wrobel and Janelle Moussa

Most Read Contributor in Australia, September 2018

NSW developments:

Judicial review of adjudicator's determination

The position that an adjudicator's determination under security for payment legislation is only reviewable for jurisdictional error was challenged in 2017.

The decisions of Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) [2016] NSWCA 379 and Maxcon Constructions Pty Ltd v Vadasz (No 2) [2017] SASCFC 2 concluded that an adjudicator's determination under security of payment legislation in NSW and South Australia respectively cannot be judicially reviewed on any basis other than for jurisdictional error of law. In other words, an adjudicator's decision cannot be challenged on the basis of an error of law on the face of the record. However, the High Court has granted special leave to hear appeals in both matters.

The High Court will now need to decide if an adjudicator's determination can be challenged on non-jurisdictional grounds. The High Court's decisions will be ones to watch in 2018, as any finding contrary to the existing line of authority will certainly have significant implications for the construction industry and security of payment legislative regimes across the country.

Commonwealth developments:

Statutory Interpretation

Recent case law has reaffirmed the importance the courts place on context in determining the meaning of statutory text.

In the Federal Court decision of Uber B.V. v Commissioner of Taxation [2017] FCA 110, Justice Griffiths found that UberX drivers were supplying "taxi travel" to passengers within the meaning of s 144-5(1) of the A New Tax System (Good and Services Tax) Act 1999 (Cth) and were thus required to register for GST purposes regardless of revenue generated. Justice Griffiths found that a broad approach to the interpretation of the word "taxi" was appropriate based on the policy and surrounding legislative context of the provision. As stated by Justice Griffiths at [122] "the consideration of text often requires consideration of context and questions of context should be addressed in the first instance and not merely at a subsequent stage..." In Oreb v ASIC (No 2) [2017] FCAFC 49, the Full Court of the Federal Court held that the word "and" in s 206F(1) of the Corporations Act 2001 (Cth) did not have a conjunctive effect by referring to its predecessor provision and the explanatory memorandum to reforms of the Corporations Act 2001 (Cth). In DFS Australia Pty Ltd v Comptroller-General of Customs [2017] FCA 547, the insertion of the word "legal" to the phrase "owner of the goods" in the Customs Regulations 1926 (Cth) was held by his Honour Justice Burley to have a substantive effect. This was based on reflecting on the explanatory statement of the Amending Regulations and contemporaneous amendments to the Customs Act 1901 (Cth). In Privacy Commissioner v Telstra Corp Ltd [2017] FCAFC 4, it was determined that, as a matter of statutory construction, the phrase "about an individual" in the National Privacy Principle 6.1 did have a substantive effect in which it limited the information that the original applicant was entitled to be provided with to personal information to which the applicant was the subject matter.

Judicial review of procurement decisions

Currently, there are limited options for tenderers who seek to challenge Commonwealth tender decisions. In some cases, this has involved an application pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) in which the tenderer must demonstrate that the procurement decision was an administrative decision made under an enactment. However, the introduction of the Government Procurement (Judicial Review) Bill 2017 (Cth) (Procurement Bill) to Parliament in mid-2017 may have significant implications for Commonwealth procurement if passed.

The Procurement Bill provides suppliers with new rights in relation to breaches of the Commonwealth Procurement Rules (CPRs) by Commonwealth entities. In particular, the Procurement Bill provides that:

  • Suppliers' complaints are to be investigated and reported on by the Commonwealth entity's accountable authority; and
  • the Federal Circuit Court and the Federal Court are to be vested with jurisdiction to grant an injunction or order compensation in relation to a contravention of the CPRs.

The Procurement Bill is currently being debated in the Senate as it progresses through Parliament, with a Report from the Finance and Public Administration Committee recommending the Senate pass the Procurement Bill as it is consistent with Australia's international obligations in relation to government procurement.

If passed, the implications of the Procurement Bill will be far-reaching, and will certainly see regional suppliers and small and medium enterprises receive a greater ability to raise complaints about the procurement process. The Procurement Bill should be monitored in 2018 and its proposed changes understood by Government agencies who run procurements subject to the CPRs.

Abolition of limited merits review of decisions made under National Energy Laws

On 30 October 2017, the Competition and Consumer Amendment (Abolition of Limited Merits Review) Bill 2017 (Cth) (Competition and Consumer Amendment Bill) was assented to. The effect of the Competition and Consumer Amendment Bill is that decisions of the Australian Energy Regulator (AER) under the National Electricity Law and National Gas Law (National Energy Laws) are no longer subject to limited merits review by the Australian Competition Tribunal (Tribunal).

However, the Tribunal can still review decisions relating to the disclosure of confidential or protected information under the National Energy Laws. Applicants will still be able to seek judicial review of the decisions of the AER in Federal Court.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions