Concord Data Solutions Pty Ltd v Director-General of Education [1993] QSC 276 [1994] 1 Qd R 343

Se.. 'Y>/ .,2-? ', 9£;' ,, rt. , ·,· State Reporting Bur& ~~t..!!l!ill.:.~ ) TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the .Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION THOMAS J No 692 of 1993 CONCORD DATA SOLUTtONS PTY LTD and DIRECTOR~GENERAL OF EDUCATION and STATE OF QUEENSLAND and SOFTLINK AUSTRALIA PTY LTD BRISBANE . . DATE ' 2 7 I 0 9 I 9 3 JUDGMENT 1 REVISED COPIES ISSUED State Re::·ciiing Bureau ~ate 8'" 1 10 1 Cif 3 Applicant First Respondent Second Respondent Third Respondent -- 1 of 24 -- 270993 adt (Thomas J) HIS HONOUR: I am afraid we are a little later than I had 1 1 hoped, but the reasons have now been re-prepared. I publish those reasons. In consequence, the orders will be that the application for a stay is dismissed, the application for Judicial Review is 10 dismissed, and the order for costs will be that the applicant pay the first respondent one half of its costs to be taxed. There will be no other order for costs. 20 30 ( 40 50 60 JUDGMENT 2 -- 2 of 24 -- () 0 0 0 IN THE SUPREME COURT OF QUEENSLAND BETWEEN: AND: AND: AND: CATCHWORDS: CONCORD OATA SOLUTIONS PTY LTO (ACN 010 289 871) DIRECTOR-GENERAL OF EDUCATION STATE OF QUEENSLAND SOFTLINK AUSTRALIA PTY LTO REASONS FOR JUDGMENT - THOMAS J. Delivered the 27th day of September, 1993 No. 692 of 1993 Applicant First Respondent Second Respondent Third Respondent Administrative Law - tender process and decisions by Department of Education - review of decision under ludicial Review Act - whether Queensland Government State Purchasing Policy is a "statutory instrument" defined by the Statutory Instruments Act - prerogative power of Crown affected by statutory overlay - whether decision made under an "enactment". Stay under s. 29 - whether serious question to be tried - grounds of review as partially defined in ss. 20 to 24 - no jurisdiction to review decision on merits. Costs - relevance of public interest. [udicial Review Act 1991 ss. 4, 20 to 24, 29, 49. Statutory Instruments Act 1992 s. 7(1). Financial Administration and Audit Act (1977-1993) s. 46 - "Public Finance Standards" as gazetted, are Standards under s. 46L and consequently subordinate legislation and as statutory instrument - "State Purchasing Policy" held to be executive direction, and not "made under" any statutory instrument. Australian Film Commission v. Mabey (1985) 6 F.C.R. 107, 129; Glasson v. Parkes Rural Distributions Pty Ltd (1984) 58 A.L.J .R. 471; and A.N.V. v. Burns (1982) 43 A.L.R. 25, 32 referred to. Hawker Pacific Pty Ltd v. Freeland (1983) 79 F.L.R. 183 discussed and applied. New South Wales v. Bardolph (1933-1934) 52 C.L.R. 455, 496 and 474 applied. -- 3 of 24 -- Counsel: Solicitors: 0 Hearing dates: 0 0 0 2 M. Forde with him J. Costello for applicant. M. Plunkett for first and second respondents. B. O'Donnell for third respondent. Purvis Duncan for applicant. K.M. O'Shea, Crown Solicitor for first and second respondents. McCullough Robertson for third respondent. 14th and 24th September, 1993 -- 4 of 24 -- 0 0 0 IN THE SUPREME COURT OF QUEENSLAND BETWEEN: AND: AND: AND: CONCORD DATA SOLUTIONS PTY L TD(ACN 010 289 871) DIRECTOR-GENERAL OF EDUCATION STATE OF QUEENSLAND SOFTLINK AUSTRALIA PTY LTD REASONS FOR JUDGMENT - THOMAS J. Delivered the 27th day of September, 1993 No. 692 of 1993 Applicant First Respondent Second Respondent Third Respondent The principal questions before me are: (a) a preliminary question whether the challenged decision is one to which the Act applies; and (b) whether a stay of the o challenged decision should be granted under s. 29 of the Judicial Review Act 1991 pending further hearing of the application for review. The decision in question was made on 29th July, 1993 by the Director-General of Education to appoint the third respondent ("Softlink") as the preferred supplier of certain computer software to Queensland Government Schools. The applicant ("Concord") was an unsuccessful tenderer. Softlink's system is known as OASIS, and Concord's as AIMS. The tenders related to the supply of library automated software and associated services to the Department of Education for use in Queensland State -- 5 of 24 -- 2 Primary Schools, primary school libraries, secondary school libraries and special libraries. I have no doubt that a decision has been made notwithstanding that a contract has not yet been entered into with the favoured tenderer, and notwithstanding that further prerequisites need to be satisfied before a valid contract will result. The preliminary question is whether this decision (which amounts to a departmental choice after taking into account the views of a number of committees) is a decision of an administrative character "made, proposed to be made, or required to be made, o· under an enactment ... " (s. 4). The applicant says that the relevant decision was required to be made in conformity with a document known as the "State Purchasing Policy" which it submits is a "statutory instrument" and therefore an "enactment" 0 under the extended definition of that term in the Tudicial Review Act. For the purpqse of considering a stay under s. 29 it is necessary to consider whether there is a serious question to be tried (Fairgold v. Zammit (1984) 1 F.C.R. 87, 92). It will, I think, be helpful to relate briefly the factual background 0 concerning the making of the relevant decision before attempting to answer either of the principal questions. The decision was one made in the process of automation of school resource 0 centres by the Department of Education. A number of committees were involved in preliminary consideration of the subject. A departmental committee known as the Resour,c::;e Centre Automation Reference Committee ("the Reference Committee") was set up within the Equcation Department, as was an Information Steering "··, .. Committee ("ISC"). There is also, as part of the administrative and management structure of the department, an Executive Management Committee ("EMC"). The Director-General of Education chairs the latter two committees which, within the -- 6 of 24 -- 3 current structure of the department, are responsible for major policy decisions made in respect of the management and administration of the department. The above committees have been established administratively and do not have any statutory backing or recognition. There is also an Information Policy Board ("IPB") which has been established within the Department of the Premier, Economic and Trade Development. Its function is to develop "whole of government" standards in relation to information [) technology. The relevant tenders were submitted by early November 1992. The Reference 0 Committee examined and made some evaluation of the various proposals. A short list was prepared. Further evaluation was made by an evaluation team including an independent consultant. This would appear to have been described as the "evaluation committee". In due course the Reference Committee presented a submission for consideration by the ISC. The ISC considered the submission on 15th April, 1993 and o recommended that the proposal be referred to the IPB. That board responded with advice on 25th May, 1993. Finally on 26th July, 1993 the EMC met and considered 0 the matter. Its decision was that the department adopt OASIS as the preferred resource centre automation system. This decision was recorded in writing on 29th July, 1993 signed by a representative of the director. Letters were then sent to the successful and unsuccessful applicants advising them of the decision. The unsuccessful applicant (Concord) was advised of the opportunity "to seek feedback regarding the reasons your offer was not successful". It availed itself of this opportunity, .and it seems that some of the statements made by departmental officers in the course of that meeting form the basis of Concord's allegations that procedures that were required by law to be observed in relation to the making of the -- 7 of 24 -- 4 decision were not observed, and that an improper exercise of power was involve'd [see ss. 20(2)(b), 20(2)(e), 23(b) and 23(f)]. I am in no position to make a satisfactory comparative evaluation of the two tenders. The modules and services provided by each system have some similarities and some differences. Important features in Concord's tender included the payment of a single licence fee by the Education Department of $250,000, which would give individual schools the right to use Concord's system upon payment by each school opting to take up the system of the following fees: installation and training fees of $1,800 for the Unix system, (or $750 for the MS-DOS system); $150 for manuals; annual licence fees of $1,200 for Unix (or $500 for MS-DOS); and available maintenance and supp_ort contracts at $850 per annum for Unix and $500 per annum for MS-DOS. Softlink's tender was for a single licence fee of $100,000, and annual maintenance paym~nts by. schools of $480 per annum, together with $185 for manuals. There is conflicting evidence as to the number of modules or services (their "functionality") available under the respective systems. The impression I have is that the AIMS system offers. a greater number of modules and services than OASIS, but not to the extent suggested in Mr Bell's affidavit, as a number of those services, or similar services, are available within the OASIS system by various means. This is the factor upon which the applicant pins its case. Mr Bell alleges that "the major difference between the Concord tender and the Softlink tender was that · Concord's tender included at no cost above Concord's $250,000 corporate licence fee, the modules and functionality to meet the tender specifications with no need for schools to purchase extra modules and functionality". The extent of the difference between the two. services is difficult to tell, because while each contending deponent () () 0 0 -- 8 of 24 -- 0 0 0 0 5 (Mr Bell for Concord and Mr Dunne for Softlink) can speak with some authority about his own services he cannot speak as reliably of his opponent's. Their evidence is to a substantial extent reconcilable, and it would seem that many of the functions originally thought by Mr Bell to be unavailable or under the OASIS system would be available by one means or another, although not as directly available as those under the AIMS system. For the purposes of the present exercise, I shall act on the assumption that the applicant's material is accepted, although it is fair to take into account the respondents' material that is not inconsistent with it. On this footing the Softlink system offers the right to use fewer modules and has less functionality than that offered by the applicant. The applicant's case is that each school will therefore be required to purchase some additional modules individually, thus adding to the overall cost of the Softlink solution to the State education system in Queensland. However it is not demonstrated that any additional costs that might be incurred by schools choosing to require those additional modules and functionality would outweigh the higher charges and additional charges contained within the applicant's tender. Nor would that necessarily make the department's decision erroneous or improper or otherwise reviewable. Mr Bell's belief that each school would be required to spend an additional $2,500 to achieve the minimum solution compared with the tender specification does not in my view raise a serious question to be tried as to the existence of a ground for judicial review. The real basis of the application, as it seems to me, is Concord's own conviction that its system, although on the face of it more expensive, would on fair economic analysis be found to be more beneficial, and in the end collectively cheaper to the department and the various schools than the conversion to Softlink. -- 9 of 24 -- 6 Whether that is so or not, I cannot say, and it is a complex question capable of endless debate. It is a point going ~o the merits of the respective tenders, and the ludicial Review Act does not make the Supreme Court a merit review tribunal. The! • ~ grounds of review are limite~ to those mentioned and partially defined in ss. 20- 24. Mr Bell's affidavit claims that statements made by the department's officers are capable of establishing that - (a) the evaluation committee had not been given access to the pricing; (b) there is no suggestion of fault in the applicant's product; and 0(c) the department had accepted strong advice from IPB that it should standardise on only one software system. .·. As to (a), it will be remembered that the evaluation committee was a sub- 0 advisory committee set up at a particular stage of the Reference Committee's deliberations. It does not follow that economic factors were overlooked by other committees or ultimately by the EMC. It is in itself not a surprising circumstance. As to (b), this is again not surprising. It does not say that there may not be degrees 0 of merit, or tha~ there may not be many other balancing factors including perceived economic ones that could lead to a decision in favour of another product. As to (c), it is· again hardly surprising that the IPB should make a strong recommendation in 0 favour of standardisation. There is however no evidence that the IPB exerted any influence to the effect that any particular applicant should be favoured over another. It was further alleged by the applicant that after the decision in favour of Softlink, there has been SOJ?e "negotiation" between the Department and Softlink in relation to the terms of a possible contract. I do not propose to canvass that -- 10 of 24 -- 0 0 0 0 7 allegation further, because I fail to see how it can possibly affect the validity or invalidity of the earlier decision, which the present application seeks to attack. Having stated some of the factual background, I turn to the legal arguments. ( 1) Is the decision one required to be made under an enactment? The applicant is applying to review a decision under s. 20, and alternatively to review "conduct related to the making of a decision" under s. 21. · I think that s. 20 is the more pertinent and will direct primary attention to it. Under s. 20(1) a person "aggrieved by a decision to which this Act applies" may apply for a statutory order of review. The words "decision to which this Act applies" are defined in s. 4 to mean "a decision of an administrative character made ... or required to be made under an enactment (whether or not in the exercise of a discretion)". The term "enactment" is defined in s. 3 to mean "an act or statutory instrument, and includes a part of an act or statutory instrument". The term "statutory instrument" is now defined, pursuant to the Statutory Instruments Act 1992 as follows: "7. ( 1) A "statutory instrwnent" is an instrument made under an Act including, for example, any of the following types of instrument - . regulation . order in council . rule . by-law . ordinance . statute . proclamation . notification . standard . guideline. (2) An instrument made under a statutory instrument is also a statutory instrument." The same Act defines "instrument" as any document (s. 6), and further provides that the application of that Act may be displaced "by a contrary intention appearing in -- 11 of 24 -- 8 any instrument". Having regard to the extensive definition of "instrument" the possibility for displacement under s. 6 is endless. That however is only one of the many infelicities that emerge when one surveys the network of widely drawn provisions emanating from the central web of the Finance Administration and Audit Act 1977-1993. The central submission of counsel for the applicant is that a lengthy document titled "State Purchasing Policy" is a statutory instrument and therefore an "enactment" for the purposes of the Judicial Review Act. A loose-leaf book purporting to be the "State Purchasing Policy" was tendered. It has not been gazetted, and on its face has been prepared by a body called "State Purchasing Council" which is described in the eleven page preface as follows: "_The Government has established a State Purchasing Council to assist in formulating with State Purchasing Policy and to oversee its implementation, review its effectiveness and advise Government on issues requiring Cabinet consideration." The preface is signed by The Minister for Administrative Services and The Minister for Business, Industry and Regional Development. The foreword asserts that the State Purchasing Policy "establishes the rules ... for Government procurement and covers activities from specification writing, invitations to suppliers, offer evaluati'on and purchase order or contract through to eventual disposal"; and "suppliers should be aware of these rules and have a right to complain if Government agencies are not complying." The document includes "The Codes of Practice" (22 pages), "Business and Industry Development Issues" (21 pages), "Instructions on Requirements for Goods Equipment and Rateable Services, Construction Contracts and Service Contracts" (73 pages), and "Hand~ooks" (181 pages). The Policy was mentioned in the tender documents, cl. 42 of which states, 0 [) 0 0 -- 12 of 24 -- 0 0 0 0 9 "All procedures and processes associated with this invitation document have been/will be performed in accordance with the provisions of the State Purchasing Policy." Whilst that may be of relevance in a promissory or contractual sense, it does not help identify the legal character of the Policy. Some difficulty has arisen in identifying the legal status of this document. Counsel for the applicant submitted that it is an instrument by reason of the operation of cl. 220(2)(c) of the Public Finance Standards ("The Standards"). The correct starting point, I think, is s. 46L of the Financial Administration and Audit Act 1977-1993. It includes the following: "46L (1) The Treasurer may issue standards in relation to - (a) the policies and principles to be observed in financial management, including internal audit, by accountable officers and statutory bodies; and ... (4) In preparing standards, the Treasurer must have regard to any relevant standards issued by appropriate professional bodies. (5) (6) Every accountable officer and statutory body must comply with all applicable standards in force under subsection (1). A standard issued under subsection (1) is subordinate legislation." The "Public Finance Standards" were published by the Treasurer, and gazetted on 7th July; 1990. Plainly they amount to a "standard" issued under s. 46L of the Finance Administration and Audit Act. The Standards are "subordinate legislation" and clearly satisfy the definition of statutory instrument. Clause 103 states that except as indicated in para. 2 or in a particular public ·finance standard, these Public Finance Standards apply to each accountable officer of a department~ Clause 220, headed "Expense Identification and Control" requires "adequate systems" to be established and maintained by an accountable officer and requires the necessary -- 13 of 24 -- 10 procedures associated with such systems to be established and "specified in the Financial Management Practices Manual with the objective of ensuring" certain things. One of these is stated [in cl. 220(2)(c)] as the ~bjective of ensuring "competitive procurement arrangements are in place including, where applicable, those required by the State Purchasing Policy approved by State Cabinet." There is thus a recognition in this statutory instrument of .. the existence of the State Purchasing Policy, · and, "where applicable" their "competitive procurement arrangements" as something that the Financial Management Practice Manual is to be drawn up with the objective of ensuring. It will therefore be seen that although it is mentioned .in the Standards, the State Purchasing Policy is not identified as a binding law or requirement, but as something which the systems to be established in the Financial Management Practice Manual are to have the objective of ensuring. It seems to me that in this particular context, the State Purchasing Policy is referred to more as a model than as an operative source of law in its own right. Further reference was made to cl. 400 of. the Standards which deals generally with information management systems. It requires each "accountable officer" to develop and maintain a system for the management· of information, whether computer based or otherwise, and its elements include an information systems strategic plan, and integrated procedures which are to ensure the employment of appropriate storage media and other matters. It is enough to say that standard no. 400 says nothing in relation to tend_er procedures, and is indeed very general in its requirements for the system that is to be instituted and maintained in relation to information systems. However, it expressly requires as an "element" of the system a current . "strategic plan which shall ... conform with policy determined by State 0 0 0 0 -- 14 of 24 -- () 0 0 0 11 Cabinet, the appropriate Minister or other authority established to determine such policy." The first question then is whether the State Purchasing Policy was "made under the Public Finance Standards". . There is nothing in the Public Finance Standards to show that it was. It does not purport to be a Treasurer's Standard. Although the Standards recognise the existence of the Policy, the latter has originated from a different stream, and it is entirely executive in character. It is certainly a document, and it also may be described as a standard and a guideline, but on the evidence and submissions before me, it is not a document "made under a statutory instrument". It therefore fails to qualify under the wide definition of statutory instrument contained in the Statutory Instruments Act. The second question is whether the State Purchasing Policy, although not a statutory instrument in its own right, has been incorporated by reference through cl. 400 of the Standards. It comes very close to this, although it is not identified in its own right as a document applying to the day to day decisions that must be made. Once again it is referred to more as a model upon which a strategic plan is t.o be prepared. This is consistent with a recognition of the fact that the State Purchasing Policy is a very general document consisting principally of aspirations and guidelines for the guidance of the various departments in the working out of their respective management systems. . The State Purchasing· Policy does not seem to me to be a document which has been created as an end system in its own right. It is more an umbrella of principles which the departments are required to follow in introducing and managing their own systems. In short the State Purchasing Policy seems deSigned to create systems which will affect ultimate decision making, but it is not in its own right applied by statute -- 15 of 24 -- 12 or by statutory instrument to the ma~ing of individuaL decisions. It may be noted in passing that even if I am wrong on thinking this to be so, its contribution to the statutory regime applicable to the making of particular decisions is so lacking in specific requirements that it may fairly be described as slight and remote. A correct legal analysis of whether a decision is made under an enactment requires a characterisation of the decision that has been made, and an examination of all legislation and statutory instruments applicable to it. It is only then that the Court can say whether in its essential respects it was made under an enactment or under some other power or source. (A.N.V. v. Burns (1982) 43 A.L.R. 25, 32). One searches for the operative or substantial source of .the power rather than incidental sources. (Glasson v. Parkes Rural Distributions Pty Ltd (1984) 58 A.L.j.R. 471; Australian Film Commission v. Mabey (1985) 6 F.C.R. 107, 129). In the present case the Court reconvened in order to give counsel the further opportunity of addressing this point. In consequence it is now established that the State Purchasing Committee was established to review purchasing policy formally established by the Government's purchasing agency (the State Stores Board) which was abolished by Order in Council in December 1990. The new committee was established by Cabinet decision in July 1990 and a policy was prepared in May 1991. On 27th May 1991 Cabinet approved the policy and an executive minute records that the policy would "apply to the procurement of all goods, equipment· and serviCes (including construction activities) by departments and statutory bodies (as defined in the Financial Administration and Audit Act) and to all forms of procurement except real property transactions". There is now an extensive matrix of financial regulation and policy material bearing upon the actions of. a department that wishes to call for tenders and to let a ·. () 0 0 0 -- 16 of 24 -- 0 0 0 0 13 contract. The sources potentially applicable to a decision such as the present one include the following:- * Education Act 1964-1974 s. 5(4). Under this provision the Director-General of Education is permitted to establish rules and institute procedures for the efficient working of the Department. This is a general managerial power. * Public Service Management and Employment Act 1988 s. 12. Under this section, a chief executive's responsibilities include the control of the Department's financial and other resources. * Financial Administration and Audit Act 1977 s. 46L. Under this section the Treasurer may issue Standards in relation to policies and principles to be observed in financial management by accountable officers. Under subs. 5, every accountable officer must comply with all applicable standards in force under subs. 1. "Accountable officer" is defined in s. 5 to mean the chief executive of a Department under the Public Service Management and Employment Act 1988. * Financial Administration and Audit Act s. 46M. This contemplates the production of departmental financial management practice manuals which become binding upon accountable officers. Although cl. 220(2)(c) of the Standards requires the manuals to be drawn up with the object of ensuring competitive procurement arrangements, including those required by the State Purchasing Policy, it has not been suggested that the Department's manual in fact lays down any procedures or requirements relevant to the decision in question in the present case. * "Public Finance Standards" issued by the Treasurer under s. 46L of the Financial Administration and Audit Act. These are very lengthy, comprising -- 17 of 24 -- 14 over 400 clauses. Only three of these have been submitted as potentially relevant in the present instance, and they have already been referred to (viz. nos. 103, 220 and 400). * The "State Purchasing Policy". On the material before me, the State Purchasing Policy is not a statutory instrument and it therefore does not directly contribute to any relevant body of law that is to be assessed for the purpose of deciding whether this particular decision was made under an· enactment. It is a statement of policy arising through executive direction. The answer to the present question depends very much upon the extent to which the legislation and statutory instruments impinge upon the commercial activity in question. On one view of it the Government has tied the hands of its officers so closely that it has imposed a statutory system of control that makes practically every financial decision justiciable by the courts under one or more of ss. 20(2)(b), 20(2)(e), 20(2)(i), 21(2)(b), 21(2)(e), 21(2)(f), 21(2)(i)~ If so, the imposition of such an abundance of requirements renders many decisions easily subject to attack under ss. 20(2)(e), 21(2)(e), 23(a), 23(b), 23(c) and 23(f). Examination by the Courts of alleged non-compliance with these financial requirements and of whether use was made of irrelevant considerations would be a very time-consuming process, not only for the Courts, but also for those involved in the financial business of Government and those who deal commercially with State Government organs. The present case affords a good example, as potential orders from schools that have awaited the present departmental decision are held back by undertakings pending this judgment, and would be further held back if a stay were granted. However, my decision must be based on principle, not convenience. The bulky material to which reference has () 0 0 0 -- 18 of 24 -- 0 0 0 0 ------------- ---------- 15 been made may be perceived as an attempt to make decisions of government departments uniform and to render their makers accountable. But that is not to say that the decision in question is made under an enactment. The main submission for the respondents is that in deciding in favour of one tenderer in preference to the other the director was merely exercising an aspect of the power of the Government to enter into contracts, and that this is not done or made under an enactment. "The Crown has a power independent of statute to make such contracts for the Public Service as are incidental to the ordinary and well recognised functions of Government". (New South Wales v. Bardolph (1933-(1934) 52 C.L.R. 455, 496 per Rich J .). "The general capacity of the Crown to enter into a contract should beregarded from the same point of view as the capacity of the King would be by the courts of common law. No doubt the King had specialpowers, privileges, imz~mnities and prerogatives. But he never seems to have been regarded as being less powerful to enter into contracts thanone of his subjects". (New South Wales v. Bardolph above per Evatt J. at p. 474-475). In Hawker Pacific Pty Ltd v. Freeland (1983) 79 F.L.R. 183, Fox J, ruled that the awarding of a contract by the Commonwealth Department of Transport was an inherent prerogative of government power, and was not a decision of an administrative character under an enactment. This was decided notwithstanding that finance regulations existed which needed to be complied with before a contract could ,lawfully be awarded. His Honour dealt with the question in this way: "The Finance Regulations provide various conditions precedent thatneed to be satisfied before a contract can be awarded. The power to contract is an inherent prerogative or governmental power which is regulated by those Regulations (notably regs 51 and 52). The decision to award a contract is an exercise of this power and is therefore not made under an enactment (see New South Wales v. Bardolph (1934) ·52 C.L.R. 455 at 474-475, 496 and 508). Compliance with the Regulations is but a step leading to the awarding of the contract. I do not accept the applicant's proposition that -- 19 of 24 -- 16 because the Regulations regulate the power to contract they were the source of a 'valid power' to contract." Is the Queensland position distinguishable? In the end the important matter is the source of the power which the decision-maker exercises. If the power is non-statutory, there may still be statutory provisions which regulate or modify it without displacing it. Prerogative powers, such as the power of the Government to make contracts can be excluded by statutory provision, but such a result is not lightly implied. Reference was made to ·. the statement of Barwick C.J. "The rule that the prerogative of the Crown is not 0 displaced except by a clear and unambiguous provision is extremely strong." Barton v. The Commonwealth (1974) 131 C.L.R. 477, 488). However I do not think that. the Q total "displacement" of such a power is necessary before it could be held that a decision was made "under" a statutory provision rather than under a prerogative power. In my view a question of degree is involved. If legislation sufficiently prescribes the ways and means by which a non-statutory power is to be exercised, a stage may be reached where the relevant decision may fairly be described as one 0 made "under" the statutory provision. When one returns to the tests suggested in the decided cases, it is necessary () to look for the operative source of the power rather than incidental requirements that are tacked on to it. (cf. A.N.V. v. Burns (1982) 43 A.L.R. 25, Chittick v. Ackland (1984) 1 F.CR. 254; Glasson v. Parkes Rural Distributions Pty Ltd 91984) 58 A.L:J .R. 471; Post Office Agents Association Ltd v. Australian Postal Commission 84 A.L.R. 563, 572, and a number of other decisions referred to in Blizzard v. O'Sullivan (unreported 7th May '1993)). In the present matter although there is a veritable statutory smorgasbord of provisions applicable to the actions of the accountable officer, they are very general, and have very little to say about what he is to do in -- 20 of 24 -- 0 0 0 0 17 making a decision of the present kind. In the end, I conclude that the essential power that was exercised in the present case remained the prerogative power, and that the statutory overlay was incidental to the making of the decision. The statutory requirements do not intrude to a sufficient extent to make it a decision "under" an enactment. I therefore conclude that the decision is not reviewable under the Judicial Review Act. The position may be contrasted with the position of local authorities. It is well established that such decisions are administratively reviewable (Hunter Brothers v. Brisbane City Council (1984) 1 Qd.R. 328; Maxwell Contracting Pty Ltd v. Gold Coast City Council (1983) 50 L.G.R.A. 29). Unlike the Crown which retains executive powers, local authorities' powers are limited to those conferred by statute. Section 19(4) of the Local Government Acts 1936 as amended exp.r:-essly lays down requirements which must be observed in the tendering process. Similarly, other statutory bodies which exercise a power to contract expressly conferred by parliament are generally amenable to judicial review (A.C.T. Health Authority v. Berkeley Cleaning Group Pty Ltd (1985) 60 A.L.R. 284; Century Metals and Mining N.L. v. Yeomans (1988) 85 A.L.R. 29). Furthermore, as it seems to me, actions of the- Crown are also reviewable in the limited sense to which the prerogative writs still run. (Minister for Arts Heritage and Environment v. Peko Wallsend Limited (1987) 75 A.L.R. 218; R. v. Toohey ex parte Northern Land Council (1981) 151 C.L.R. 170, 220). The Court's jurisdiction in this respect is expressly preserved in s. 41(2) of the ludicial Review Act. However the grounds upon which the Court will grant a prerogative writ are considerably more restricted than those which permit the grant of a statutory order to review (ss. 20 to 24). In order to make an application based on this wider statement of grounds, the applicant must show a "decision of an -- 21 of 24 -- 18 administrative character made under an enactment". The present matter does not in mY: opinion involve such a decision. In view of the above rulings, the application for judi.cial review must be dismissed. (2) Is any ground shown for a stay? The parties have requested a ruling in any event on the application for stay on the assumption that the decision is reviewable under. the Act. It is firstly necessary to consider whether there is a serious question to be tried as to reviewable error. Although the State Purchasing Policy is not a statutory instrument, it was submitted that it at least sets out what are to be relevant considerations. The following extracts from the State Purchasing Policy are relied on by the applicant: (a) "Compliance with State Purchasing Policy is required by the Public Finance Standards issued under the Financial Administration and Audit Act" I do not regard this as an entirely accurate paraphrase of the effect of Public Finance Standard Nos. 220 and 400. Even assuming the statement to be correct, the above statement does not of itself prescribe any requirement that the first respondent is . alleged to have breached. This passage is relied on only in an introductory way to validate other passages which will now be considered. (b) "The State Purchasing Policy is based on five fundamental principles. They are: (1) open and effective competition; (7) value for money; (3) enhancing the capabilities of local business and industry; (4) environmental protection; (5) ethical behaviour and fair dealing." These· are no doubt 'very worthy objectives, but they are so general that, in the absence of particular requirements, it would be difficult to say that the choice of 0 0 0 0 -- 22 of 24 -- CJ 0 0 () 19 one tenderer over another in circumstances such as the present was in conflict with them. Perhaps the "value for money" principle is the one of which the applicant has most strongly attempted to demonstrate a breach. However, even assuming that the policy was an "enactment", I do not regard the evidence as capable of showing that the decision was "an improper exercise of the power conferred by the enactment under which it was purported to be made" [ss. 20(l)(e) and 23]. Such a broad requirement fails to make clear what are relevant considerations or irrelevant considerations. In such a situation it seems to me that the only practical source of jurisdiction would be a resort to s. 23(g) - "an exercise of power that is so unreasonable that no reasonable person could so exercise the power". The evidence before me is incapable of demonstrating this. Further extrapolation follows of each of these five principles, but in each instance, the discussion is quite general. There is little point in my quoting pages of the generalities and advice given under each heading merely to exemplify the point. I shall however set out one passage upon which the ·applicant places particular reliance: "3.1 The Invitation is the means by which the agency announces tosuppliers that it has a need for a product or service. The specified procedures might at first -glance seem unduly bureaucratic but Government officer holding procurement delegations/authorisations are responsible for ensuring that suppliers are treated consistently, that there is no scope for one supplier to be advantaged over another, and that there is no opportunity for fraud or misrepresentation." Neither counsel, nor I, have been able to extract anything more concrete from the policy, in relation to the present tender and decision, than the above. For example, there are no particular procedures laid down that the respondents are said to have breached; there are no systems prescribed by which economic evaluations or --------, -- 23 of 24 -- 20 comparisons are to be made; no criteria by which public benefit is to be measured or b~ which points are to be awarded to systems that are in some respects different. The alleged breaches of the somewhat general requirements of the State Planning Policy are - "The Evaluation Committee was never given access to pricing considerations". I have already referred briefly to this (on p. 6). It is impossible to see any breach of standards, whether in the purchasing policy or elsewhere, by reason of this circumstance. There is nothing inherently objectionable in a sub-committee () considering a discrete aspect of a wider question. The applicant's true concern is that the economic aspects of the tenders were never properly considered by anyone else either, but the evidence does not demonstrate that to be so. Whether economic 0 factors were fully or wisely weighed up is not a question that I can or should answer. It was faintly suggested that Mr Scott simply acted under a "directive" from the IPB, but the evidence is otherwise. There is no relevant substance in this particular allegation. 0"The department in a meeting of 24th August, 1993 stated that there was no fault in the appli~ant's product". This has already been commented on (on p. 6). The allegation is irrelevant, and fails to show any ground for administrative review. 0 "The applicant's pricing structure included the modules and functionality at no cost (apart from the corporate licence fee) whereas Softlink intended to charge for those ~odules". This is a submission on the merits, and assuming it to be correct, it falls short of showing that the decision as a whole was reviewable. The same may be' said of further submissions concerning allegedly greater conversion costs being involved from existing systems to OASIS than to AIMS. -- 24 of 24 --