Judicial Power and Administrative Tribunals: The Constitutional Challenge to the Takeovers Panel

The Takeovers Panel is the body responsible for deciding takeover disputes under Australian corporate law. In December 2007, the High Court quelled nearly eight months of uncertainty when it published its unanimous orders in support of the constitutional validity of the Panel. In Attorney-General (Cth) v Alinta Ltd (2008) 242 ALR 1, the High Court allowed an appeal against a decision of the Full Federal Court, which had by a 2:1 majority struck down a key part of the Panel's jurisdiction and called into question its remaining powers. Although its orders were unanimous, the High Court's reasons comprise six separate judgments. This fractured set of judgments makes it difficult to illicit principles for future cases. The discussion analyses the principles arising from the High Court's reasons in Alinta, in light of the key factors considered in earlier High Court cases. In conclusion, the High Court's reasoning provides a clear victory for the Panel, although other challenges may be mounted against the Panel in the future.