The decision to reject NMV’s application will only be reviewable under common law if the decision was made by an Officer of the Commonwealth pursuant to the control test, and had a ‘direct and immediate consequence’ in affecting the entity’s ‘rights, obligations or legitimate expectations’. That the Corporation initially derived its funding from the Commonwealth Government, and its authority to make the decision from the Act, prima facie indicates that the decision was indeed made by an Officer of the Commonwealth. This is further emphasised by the policy imperative underpinning the decision, and ‘the extent to which the government regulates’ the Corporation through the delegation of responsibility to Ministerial appointees who effectively exercise control of the Corporation. However, while the decision ‘qualif[ied] as a subject for judicial review’ given its origins under the Act, the absence of any rights, obligations or legitimate expectations affected is likely to be fatal to the claim.

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