CATCHWORDS ADMINISTRATIVE LAW - Decision of Secretary of Department of Aviation pursuant to the Two Airlines Agreément - Request for written reasons for decision ~- Applicability of Administrative Decisions (Judicial Review) Act 1977 (Cth) - Whether decision of "an administrative character made ... under an enactment". Acts Interpretation Act 1901 (Cth): s. 13 Administrative Decisions (Judicial Review) Act 1977 (Cth): ss. 3, 13 Airlines Agreement Act 1981 (Cth): ss, 3, 5, 6, 7, 8 and Schedule. Airlines Equipment Act 1958 (Cth): ss. 12, 18 Air Navigation Regulations: Regs. 82, 190, 198, 199 Customs (Prohibited Imports) Regulations: Reg. 4N ANSETT TRANSPORT INDUSTRIES LIMITED v. RAE MARTIN TAYLOR G 586 of 1986 LOCKHART J. 23 DECEMBER 1986 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) No. VG 586 of 1986 ) GENERAL DIVISION ) ANSETT TRANSPORT __ INDUSTRIES LIMITED Applicant RAE MARTIN TAYLOR Respondent 23 December 1986 REASONS FOR JUDGMENT LOCKHART J. I propose to give judgment now and am assisted in taking this course by the clear and helpful arguments of counsel. This case raises the question whether a decision by the Secretary of the Department of Aviation pursuant to clause 6(1)(c) of the Schedule to the Airlines Agreement Act 1981 (to which I. shall refer as "the Two Airlines Agreement" or sometimes as "the Agreement") is a decision of an administrative character made "under an enactment" within the meaning of that expression in sub-s. 3(1) of the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act"). If the decision answers this description it is susceptible of review under the Judicial Review Act and to the processes of s. 13 thereof relating to the request and furnishing of a statement of reasons for that decision. IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) No. VG 586 of 1986 ) GENERAL DIVISION ) ANSETT TRANSPORT __ INDUSTRIES LIMITED Applicant RAE MARTIN TAYLOR Respondent JUDGE MAKING ORDER: LOCKHART 7. DATE OF ORDER: 23 DECEMBER 1986 WHERE ORDER MADE: SYDNEY MINUTES OF ORDER THE COURT ORDERS THAT: 1. It be declared that the Applicant is entitled to make a request pursuant to s. 13(1) of the Administrative Decisions (Judicial Review) Act 1977 in relation to the decision made on or about 31 October 1986 by the Secretary of the Department of Aviation pursuant to clause 6(1)(c) of the Agreement which is the schedule to the Airlines Agreement Act 1981 concerning passenger air services operated by East-West Airlines (Operations) Limited between Sydney/Yulara and Yulara/Perth. 2. The respondent, Rae Martin Taylor, pay the costs of the Applicant, Ansett Transport Industries Limited, of the application. Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The Secretary of the Department of Aviation, Rae Martin Taylor, who is the respondent to this proceeding, recently decided to examine the services of East-West Airlines (Operations) Limited ("East-West") over various prescribed routes, with the intention of reviewing the status of those routes in relation to clause 6(1)(c) of the Two Airlines Agreement. Having undertaken that examination, the Secretary decided, to use the somewhat labyrinthine language of clause 6(1)(c) itself, that he was not satisfied that the services for the successive prescribed routes, Sydney~Yulara and Yulara-Perth operated by East-West were not predominantly used for the purpose of carriage of passengers over separate prescribed routes within the meaning of the first limb of clause 6(1)(c) of the Two Airlines Agreement, and that it was not necessary in those circumstances to consider whether those services of East-West were to a significant extent used or to be used for the purpose of carriage of passengers between the trunk toute centres, Sydney and Perth, within the meaning of the second limb of clause 6(1)(c). The significance of the decision is that the Minister, when recently making estimates of total traffic on relevant routes and determinations of maximum aircraft capacity of aircraft required by Ansett Transport Industries Limited ("Ansett") (the applicant in this proceeding), the Australian National Airlines Commission ("the Commission") and East-West (pursuant to s. 12 of the Airlines Equipment Act 1958 in the case of Ansett and the Commission, and s. 18 in the case of East-West) may have taken the Secretary's decision into 3. account. It is said that the Minister may thereby have enlarged the estimate of East-West''s total traffic and the maximum aircraft capacity of its aircraft and diminished the estimates of total traffic and the maximum aircraft capacity of the aircraft required by Ansett and the Commission. The right of each of the three airlines to import aircraft into Australia may also be consequentially affected pursuant to regulation 4N of the Customs (Prohibited Imports) Regulations. With respect to the successive prescribed routes, Sydney-Yulara-Perth, Ansett requested the Secretary, pursuant to s. 13 of the Judicial Review Act, to furnish a statement of his findings on the material questions of fact by referring to the evidence or other Material on which those findings were based and also to give the reasons for his decision. In the same letter of request of 4 November 1986 a section 13 statement was sought with respect to other successive prescribed routes, but they are not material for present purposes. The Secretary declined to furnish the statement pursuant to s. 13, upon the ground that the relevant decision made under clause 6(1)(c) of the Two Airlines Agreement was said not to be a decision to which the Judicial Review Act applies, as it was not made "under an enactment" within the meaning of that expression in sub-s. 3(1) of the Judicial Review Act. The determination of this question is relevant to other proceedings recently commenced by Ansett, challenging recent traffic estimates and capacity determinations made by the Minister, which have been set down for hearing in the first week of February next year. If 4. the Secretary is required to furnish the section 13 statement with respect to his decision under clause 6(1)(c) of the Two Airlines Agreement, the parties in the other proceedings will no doubt be assisted in the preparation of their cases. These recently instituted proceedings are another round in the battle between Ansett, the Commission and East-West for the control of air routes within Australia. The last curial round culminated on 23 September 1986 when orders were made by me in various proceedings in which Ansett and the Commission sought to prevent East-West importing aircraft which East-West planned to use for services in North Queensland and to prevent East-West competing with them on certain successive routes within Australia between trunk route centres. East-West also sought a declaration in those earlier proceedings that the Federal Government's authorities given to Ansett and the Commission enabling them to purchase aircraft were invalid. TI need not refer to the orders which I made in September. However, my reasons for judgment which support them are presently relevant, primarily because I examined in some depth the history and operation of the Two Airlines Agreement and the legislative context in which it is placed; so I am relieved of the necessity to state those matters further. Following a review in 1977 of Australia's domestic air transport policy, an agreement was negotiated which was executed on 28 May 1981 and approved by the Airlines Agreement Act 1981. This 5. contains the current Two Airlines Agreement. It was preceded by agreements made in 1952, 1957, 1961, 1972 and 1973. Most of the provisions of the 1981 Agreement came into force on 26 January 1982 and are to remain in force for not less than eight years. The Agreement may be terminated at any time after five years; but three years notice of termination must be given by the Commonwealth pursuant to clause 22 of the Agreement. The current arrangements by which the Federal Government regulates domestic airlines are constituted by the Airlines Agreement Act 1981, the Independent Airfares Committee Act 19681, the Airlines Equipment Amendment Act 1981, the Customs (Prohibited Imports) Regulations and, of course, the Two Airlines Agreement itself. To these must be added in a more general sense the Air Navigation Act 1920 and the Air Navigation Regulations. The 1981 Agreement contains Clause 6 which is the critical clause for present purposes. It provides as follows: "6.¢1)}(a) The parties shall take all reasonble action within their powers to ensure that the Commission and the Company are the only two operators which provide scheduled domestic passenger air services over trunk routes within Australia. (b) Subject to paragraph (c) of this sub-clause nothing in sub-clause (1)(a) shall prevent other operators from providing scheduled passenger air services over a prescribed route or successive prescribed routes. {c) Where any successive prescribed routes have the effect of linking two trunk route centres that are for the time being trunk route centres for the purposes of sub-clause (1)(e), sub-clause (1)(b) applies unless the Secretary is satisfied that such scheduled passenger air services are not predominantly for use for the purpose of the (da) (e) 6. carriage of passengers over separate prescribed routes and are to a significant extent used or to be used for the purpose of carriage of passengers between two centres that are for the time being trunk route centres for the purposes of sub-clause (lite). Without derogating from the objective of sub-clause (1)(a), the parties acknowledge that nothing in this agreement shall preclude the Commonwealth, the Minister or the Secretary from permitting a passenger operator to develop specialised scheduled passenger air services over trunk routes of a nature which in the opinion of the Minister are not adequately provided for either by the Commission or the Company and for which after receiving a request in writing from the Minister neither the Commission nor the Company has, within a reasonable time, provided a service to the satisfaction of the Minister. For the purposes of this agreement a trunk route is a route linking any two trunk route centres. A trunk route centre shall be any one of the following: Adelaide, Alice Springs, Brisbane, Cairns, Canberra, Coolangatta, Darwin, Gove, Hobart, Launceston, Mackay, Melbourne, Mount Isa, Perth, Proserpine, Rockhampton, Sydney, Townsville and such other centres as the parties hereto shall agree from time to time. (2)(a) For the purposes of this agreement a prescribed route is - (i) a route: (a) between a place in a State and another place in that State; (b) between a place in a Territory and another Place in that Territory; (c) between a regional centre and another place in Australia; or (d) over which the Minister has requested in writing the Commission and the Company to provide a passenger air service and neither the Commission nor the Company has within a reasonable time after the making of that request provided that service to the satisfaction of the Minister; or (ii) a route, other than a route referred to in sub-clause 2(a)(i) over which an operator, other than the Commission or the Company, operated a scheduled passenger air service onl July 1980, 7. regardless of whether it was the sole operator of scheduled air passenger services over that route. (b) For the purpose of this agreement a regional centre is a place within Australia which is not for the time being a trunk route centre for the purposes of sub-clause (1)(e)." Freight which had been included in the prior agreements was removed in 1981 from the ambit of the Two Airlines Agreement. Clause 8 requires the Commonwealth to take all requisite steps to procure the amendment of the Customs (Prohibited Imports) Regulations, to include a provision that, in considering the applications for the import of aircraft and aircraft engines, the Secretary shall have regard to the provisions of the Two Airlines Agreement. The Commonwealth also undertook in that clause to do everything in its power to ensure that a provision to that effect would be retained in the regulations during the currency of the Agreement; and it was pursuant to that undertaking that s. 8 of the Airlines Agreement Act 1981 was enacted which inserted regulation 4N in the Customs (Prohibited Imports) Regulations. Clause 9() of the Two Airlines Agreement provides, s0 far as is presently relevant: " 9.1) The Commonwealth, through the Minister, will introduce in the Parliament of the Commonwealth an amendment to the Airlines Equipment Act 1958 to impose and will thereafter take all appropriate action within its power to maintain during the currency of this agreement, an obligation on any operator (other than the Commission and the Company) of civil domestic air services who seeks to import a turbo jet aircraft having a capacity in excess of 30 passengers or a maximum 8. payload in excess of 3,500 kilograms in order to operate domestic air services to enter into an undertaking to comply with the said Act if approval to import such an aircraft is given to the operator. The Commonwealth will take all reasonable action within its power to ensure that an aircraft, the subject of any such undertaking, is not used in @ manner contrary to such undertaking." The Airlines Equipment Act 1981 ("the Equipment Act") is an important statute. It provides for the exclusion of air cargo or freight from the capacity determination process following the removal of air cargo or freight from the ambit of the Two Airlines Agreement. Operators other than the Commission, Ansett and Qantas may acquire jet aircraft subject to the operators undertaking to comply with the obligations set out in that Act. The obligations of regional operators, which includes East-West, include obligations not to provide aircraft capacity in excess of that determined under' the Equipment Act by the Minister and to provide passenger air services capable of performing the determined capacity. If a regional operator is deemed to have excess capacity, it is under an obligation to dispose of sufficient capacity so as to comply with the Minister's determination. Section 12 of the Equipment Act makes provision for the Minister to estimate total traffic on certain routes and to determine the maximum aircraft capacity of aircraft required by the Commission and Ansett and makes provision for the Minister to have regard to certain matters which I need not recite. 9. Section 18 requires the Minister in relation to each regional operator to which the section applies to estimate the total traffic that will be carried by that regional operator in operating passenger air services on prescribed routes and to determine the maximum aircraft capacity of the aircraft required by that regional operator for the purposes of operating passenger air services on prescribed routes. In making an estimate or determination under sub-s. 18(2) in relation to a regional operator the Minister is required to have regard to various specified matters, including the matters specified in para. 18(4)(h) of the Equipment Act and to the operation of clause 6(1)(c) of the Two Airlines Agreement. The Air Navigation Act confers powers upon the Secretary. Only some of these are presently relevant and I will refer to a few of them. The Secretary has power to determine the conditions of use of aerodromes, air routes and airway facilities pursuant to regulation 82(2). Division I of Part XIII of the Air Navigation Regulations provides for the licensing of air service operations. For the purposes of these regulations air transport is divided into a number of classes of operations. The relevant class for present purposes is "regular public transport operations" as defined in regulation 190(1)(b). This class includes the class described in the Two Airlines Agreement as "Scheduled domestic passenger air services". Aircraft employed in regular public transport operations are classified as regular public transport aircraft. Pursuant to regulation 198 an aircraft shall not be used by a person in commercial operations except under the authority and in accordance with a licence 10. issued to the person by the Secretary. Regulation 199 provides for the issuing of licences. In my September reasons for judgment in the other matters to which I have referred, I said at pages 59 and 60: "In my opinion clause 6(1)(c) does not require the Secretary to continually monitor the activities of regional operators where their scheduled passenger services are over successive prescribed routes that have the effect of linking two trunk route centres. It must be remembered that the Secretary is not himself a party to the agreement. He is designated by the parties to perform the tasks mentioned in the clause, The clause envisages that the Secretary will consider the two matters to which it refers if and when facts and circumstances are brought to his attention by Ansett, TAA, the Department of Civil Aviation or other department or instrumentality of the Commonwealth or by any other person. It is for the Secretary to decide when the occasion has arisen for him to embark upon the inquiry to which the clause is directed. It is important that questions of the construction and operation of the agreement, and the statutory and regulatory provisions which together constitute the current arrangements by Which the Federal Government regulates the domestic air transport industry, be decided sensibly in accordance with the language of the provisions and with a view to making the system embodied in them work effectively. In my opinion it would be contrary to the language and purpose of clause 6 for it to be construed so as to impose upon the Secretary the task of a continuous inquiry into the two matters to which it refers." The preamble to the Airlines Agreement Act 1981 states that it is an act to approve the execution of an agreement relating to air transport and for purposes connected therewith. Section 3 repealed, amongst other acts, the Airlines Agreements Acts 1961, 1972 and 1973. Section 5 provides that the Two Airlines Agreement, a copy of which is 11. set out in the Schedule to that Act, is approved. Section 6 provides that the Commission shall be taken to have had the power to enter into the Two Airlines Agreement and that it is empowered to do all such things as that Agreement provides that the Commission will do. Sub-section 7(2) provides that the Commonwealth shall not enter into a proposed agreement - that is, an agreement relating to trunk routes that is proposed to be entered into by the parties to the Two Airlines Agreement pursuant to para. 6(1)(e) thereof - unless' the terms of the proposed agreement have been laid before each House of the Parliament and neither House of the Parliament has, within 15 sitting days of that House, after the terms of the proposed agreement have been laid before that House, passed a resolution disapproving the proposed agreement. I turn now to the question which arises for decision. Sub-section 3(1) of the Judicial Review Act defines "a decision to which this Act applies" as meaning: " 'decision to which this Act applies' means a decision of an administrative character made, proposed to be made, or required to be made, as the case may he (whether in the exercise of a discretion or not) under an enactment, other than a decision by the Governor-General or a decision included in any of the classes of decisions set out in Schedule 1." The word "enactment" is defined by the same sub-section as meaning: 12. "(a) an Act other than the Commonwealth Places (Application of Laws) Act 1970 or the Northern Territory (Self-Government) Act 1978; (b) an Ordinance of a Territory other than the Northern Territory; (c) an instrument (including rules, regulations or by-laws) made under such an Act or under such an Ordinance; or (d) a law, or apart of a law, of the Northern Territory declared by the regulations, in accordance with s. 19A, to be an enactment for the purposes of this Act, and, for the purposes of paragraph (a), (b) or (c), includes a part of an enactment." Counsel for Ansett made four submissions, each of which was said to support the conclusion that the decision with which this case is concerned answers the description of a decision of an administrative character made under an enactment within the meaning of the Judicial Review Act. He first submitted that the Two Airlines Agreement is the Schedule to the Airlines Agreement Act 1981 and therefore it is part of that Act, by virtue of sub-s. 13(2) of the Acts Interpretation Act 1901. As a result the Two Airlines Agreement was brought within the definition of para. 3(1)(a) of the Judicial Review Act. A second submission was made by counsel for Ansett, namely, that the Secretary''s decision was made under the authority of the Airlines Agreement Act 1981 and therefore was a decision made under an enactment for the purpose of sub-s. 3(1) of the Judicial Review Act. The argument turns on the proposition that statutory approval to the i3. Two Airlines Agreement is achieved by s. 5 of the Airlines Agreement Act 1981. Reliance was placed in particular upon clauses 3, 8 and 3 of the Agreement and also on various cases, including Minister for Immigration and Ethnic Affairs v. Mayer (1985) 61 A.L.R. 609; Ansett Transport Industries (Operations) Pty. Limited v. Commonwealth of Australia (1977) 139 C.L.R. 54; P.Jd. Magennis Pty. Limited v. Commonwealth of Australia (1949) 80 C.L.R. 382; Sankey v. Whitiar (1978) 142 C.L.R. 1; and Placer Development Limited v. Commonwealth of Australia (1969) 121 C.L.R. 353. The third submission of counsel for Ansett was that the Secretary's decision was made under the authority impliedly conferred by regulation 4N of the Customs (Prohibited Imports) Regulations or para. 18(4)(h) of the Equipment Act and in that sense was a decision made under an enactment. This argument is based to some degree on the judgment of the High Court in Minister for Immigration and Ethnic Affairs v. Mayer (supra). The fourth argument was that the Secretary's decision was made under the Two Airlines Agreement which was itself an instrument made under the Airlines Agreement Act 1981 within the meaning of para. 3(1)(c) of the Judicial Review Act and therefore the decision was susceptible of review. Counsel for the Secretary submitted that each of these arguments was erroneous. In particular, it was submitted that the Secretary's decision, made under clause 6{1)(c) of the Two Airlines 14. Agreement, was not a decision under an enactment at all but was, upon proper analysis, a decision made pursuant to the Two Airlines Agreement. Reliance was placed upon pages 59 and 60 of my September reasons for judgment and in particular the parts which I have already recited. It was emphasised that the Secretary is not himself a party to the Two Airlines Agreement and that he has simply been designated by the three parties thereto to perform the tasks mentioned in clause 6(1)(c). It was stressed that the Airlines Agreement Act 1981 does not itself give statutory force to the Agreement in the sense that it aoes not cause it to take effect as part of the law of the land. Ali it does is approve the Agreement between the three parties and authorises the Commission to enter into it and do whatever the Agreement provides that the Commission will do. It was submitted that there was no necessity at all for the Airlines Agreement Act 1981 to authorise or empower the Commonwealth to enter into the Agreement because its power todo so arose from other sources. It was submitted by counsel for the Secretary that the argument of counsel for Ansett insofar as it sought to rely upon sub-s. 13(2) of the Acts Interpretation Act 1901 was misconceived on more than one ground, but primarily because there was to be discerned in the Airlines Agreement Act 1981 an intention to the contrary of the conclusion that the Agreement, merely because it is a schedule to the Airlines Agreement Act 1981, is deemed to form part thereof in any sense relevant for present purposes. 15. It was submitted on behalf or the Secretary that the Two Airlines Agreement was not itself an instrument within the meaning of that expression in para. 3(1)(c) of the Judicial Review Act. It was said that the Agreement was made by the three parties before the passing of the Airlines Agreement Act 1981 and that it had contractual force independently of that Act and that in substance all that the Act achieved was to approve the agreement and, as I have said, authorise the Commission to enter into it. The second principal submission of counsel for the Secretary was that the decision of the Secretary was not of an administrative character within the meaning of that expression in sub-s. 3(1) of the Judicial Review Act. It was said that the powers which are conferred upon the Secretary by clause 6(1)(c) of the Two Airlines Agreement are conferred not by any act of Parliament, including the Airlines Agreement Act 1981, or any regulation or by-law or order in council, but by the Agreement itself. It was said that the Secretary's functions under clause 6(1){c) have only a contractual significance and that what the Secretary does or decides affects only the rights and liabilities of the parties to the Agreement as part of the law of contract. The fact that the Secretary is the person designated toa make the requisite enquiries and make the requisite decisions under clause 6(1)(c) is not to the point. Anybody could have been chosen and the fact that it was the Secretary cannot be relied upon, so it is said, to determine or colour the true character of the decision that is made. 16. Counsel for the Secretary contrasted the position of the Secretary with what the position would have been if, say, an expert, and not the Secretary, had been appointed under clause 6(1)(c). Attention was drawn to clause 12(5) of the Agreement whereby an expert is appointed for certain purposes. It was said that if such an expert had been appointed, rather than the Secretary, it could not be seriously argued that the expert's decisions would be susceptible to review under the Judicial Review Act. Counsel for the Secretary submitted that although para. 18(4)(h) of the Equipment Act does refer to the operation of clause 6(1)(c) of the Agreement as a matter to which the Minister shall have regard in making estimates and determinations for an original operator under s. 18 of the Equipment Act it is the operation of clause 6(1})(c} which is the subject of para. 18(4)(h); and that this is a matter of fact, as are all the other matters (a) to (g), (f) and (k) in para. 18(4). A similar argument was put with respect to regulation 4N of the Customs (Prohibited Imports) Regulations. It was said by counsel for the Secretary that there is no legal consequence or result that flows from the Secretary's decision under clause 6(1)(c), and that it simply creates one of a number of facts to which the Minister must have regard under para. 18(4)¢(h) of the Equipment Act. In my opinion the decision of the Secretary is a decision of an administrative character within the meaning of sub-s. 3(1) of the 17. Judicial Review Act. Not all decisions made under the Two Airlines Agreement would necessarily be of an administrative character, but a decision under clause 6(1)(c) is essentially administrative in character. It is made by the Secretary of the Department of Aviation. It is idle to speculate as to why he was designated as the person to conduct the requisite tasks assigned to him by clause 6{1)(c); but obviously it was no accident that caused the parties to designate the Secretary of the Department as the appropriate person to undertake the tasks required by the clause. Clause 6(1){c) is part of a system of regulation of air transport within this country; the other components being those to which I have already referred and which were referred to in some detail by me in reviewing the history of the Two Airlines Agreement in September. The expression "decision of an administrative character" has been given a wide construction by the Courts and it must not he forgotten that we are dealing with the Judicial Review Act which is an enabling or ameliorating statute. I need not refer to the authorities except to mention Burns v. Australian National University (1982) 40 A.L.R. 707 and on appeal to a Full Bench of this Court (1982) 43 A.L.R. 25; Sellars v. Woods (1982) 45 A.L.R. 113; Lamb v. Moss (1983) 49 A.L.R. 533 and the decisions to which reference is there made. Lamb v. Moss has been followed and applied in many later cases. 18. I turn first to the fourth submission of counsel for Ansett which raises the questions whether the Secretary's decision, with which this case is concerned, was made under the Two Airlines Agreement; whether that Agreement is an instrument for the purposes of sub-s. 3(1) of the Judicial Review Act; and whether that Agreement was itself made under a Commonwealth enactment. I repeat the passage from the judgment of Ellicott J. in Burns v. Australian National University (1982) 40 A.L.R. 707 pp. 716 and 717 with which the Chief Judge, Sir Nigel Bowen, and Lockhart J. agreed on appeal, (1982) 43 A.L.R. 25, and which has been cited with approval in a number of subsequent cases. The passage reads: "The clear object of the Act is to confer rights on aggrieved citizens as a result of the exercise of powers conferred by an enactment on Ministers, public servants, statutory authorities and others. In many cases the power exercised will be precisely stated in the legislation. In other cases the power to do a particular thing will be found in a broadly stated power. The Act should not be confined to cases where the particular power is precisely stated. In each case the question to be asked is one of substance, whether, in effect, the decision is made 'under an enactment' or otherwise." The word "under", in the context of the Judicial Review Act, means "in pursuance of or under the authority of": Evans v. Friemann (1981) 35 A.L.R. 428 per Fox A.C.J. at p. 436; Australian National University v. Burns (1982) 43 A.L.R. 25 per Bowen C.d. and Lockhart J. at p. 31; Chittick v. Ackland (1984) 53 A.L.R. 143 per Lockhart and Morling JJ. at p. 153; and Minister for Immigration and Ethnic 19, Affairs v. Mayer (supra) per Gibbs C.J. at p. 612. As was pointed out by Bowen C.J. and Lockhart J. in Burns' Case (supra) at p. 31, the difficulty lies in applying the word "under" to particular circumstances. Lockhart and Morling JJ. pointed out in Chittick v. Acklan¢ (supra) at p. 262, that the word "instrument" in para. 3(1)(c) is 2 word of wide import and that its meaning in that paragraph must be ascertained having regard to its context. In that case we rejected the argument that the word "instrument" in this context requires that its meaning be confined to instruments of a legislative character. In my opinion the Two Airlines Agreement is an instrument within the meaning of sub-s. 3(1) of the Judicial Review Act. I repeat what was said by Lockhart and Morling JJ. in Chittick v- Ackland (supra) at p. 264, namely, that to qualify as an instrument for the purposes of that Act a document must be of such a kind that it has the capacity to affect legal rights and obligations. There can be no doubt that the Two Airlines Agreement answers this description. Clause 6(1)(c) provides a useful illustration of that, to which indeed I note this case itself bears witness. It is true that the Agreement was made before the Airlines * Agreement Act 1981 was passed, but clause 1(1) of the Agreement itself provides: "This agreement shall have no force or effect and shall not be binding on any party unless it is approved by the Parliament of the Commonweaith." 20. The decision of the Secretary was, in my view, made in pursuance of or under the authority of the Two Airlines Agreement. Regarded this way and in the light of the legislative and administrative melange in which clause 6(1)(c) finds itself in particular regulation 4N of the Customs (Prohibited Imports) Regulations and para. 18(4)(h) of the Equipment Act, the decision of the Secretary was made under the Two Airlines Agreement, which is an instrument within the meaning of sub-s. 3(1) of the Judicial Review Act. The Agreement was itself made under the Airlines Agreement Act 1981. In these circumstances I need not consider the other arguments of counsel, notwithstanding their inherent interest. Accordingly, the Court orders that Ansett Transport Industries Limited is entitled to make a request pursuant to sub-s. 13(1) of the Administrative Decisions (Judicial Review) Act 1977 in relation to the decision concerning passenger air services operated by East-West Airlines (Operations) Limited between Sydney-Yulara and Yulara~Perth made on or about 31 October 1986 by the Secretary of the Department of Aviation pursuant to clause 6(1)(c) of the Two Airlines Agreement, which is the Schedule to the Airlines Agreement Act 1981. The Court also orders that the costs of Ansett Transport Industries Limited of the application he paid by the respondent Secretary, Rae Martin Taylor. oe are - asons for f-, Sf past: Counsel and solicitors for the Applicant: Counsel and solicitors for the Respondent: Date of Hearing: Date of Judgment: y that ths and the AWW, (30) ; i Ve | - o.ding ages Bre a tue COPY of thei | Lj ar, Justice Lockhart. i 21. Jucgvert herein of his Honpur Associate 7 QZ Deccan ADS © N.J. Young instructed by Arthur Robinson & Hedderwicks. D. Graham Q.C. and J. Middleton instructed by Australian Government Solicitor. 23 December 1986 23 December 1986