To illustrate the aforementioned diagnosis, let's assume that the IDF has decided that the hazardous materials it uses will be transported by a designated unit of the Logistics Corps. Let's also assume that later on, a general law was enacted regarding the transportation of hazardous materials on the country's roads. The law determines, inter alia, which entities are permitted to transport hazardous materials, including the said IDF unit; It also determines which roads and at what times each of the authorized entities is permitted to use it, and by the way, it also relates to the IDF unit. It would seem difficult to dispute that the mere reference of the law to the IDF unit in this example does not, in and of itself, indicate the intention of the legislature to grant it a status that requires its closure by way of legislation. This is because the law, in the imaginary example cited above, regulates the activity of transporting hazardous materials in general, whereas the fact that a certain unit in the IDF deals with this is a factual fact relevant to the object of the regulation, and not an expression of the intention to regulate the establishment or existence of the unit in primary legislation.
In my opinion, the legislative arrangements that I discussed above, which relate to the Galei Tzahal station, are similar to the example above: the arrangements reviewed above were indeed enacted against the background of the station's existence, and even refer to it explicitly, but they do not regulate the entirety of its modes of operation, they do not confer real powers on its functionaries, and they do not anchor the structure of the station or its methods of management (and it should be noted that even in the most comprehensive arrangement, As stipulated in the Public Broadcasting Law, the commander of Army Radio was only given the status of an advisory opinion at the meetings of the Public Broadcasting Council, and not a permanent seat therein). These arrangements, therefore, deal with specific aspects of the station's activity, and do not express an intention to anchor its very existence in the law.
- For the reasons I have discussed above, I am of the opinion that the argument of the petitioners and the Attorney General that the decision to close the Galei Tzahal station should have been made by way of primary legislation, and only in this way should it be rejected.
- The Realm of Judgment
- At this stage, analytically, there was room to continue discussing the claims relating to defects that occurred, according to the claim, in the proceeding that preceded the decision to close the station. However, I am of the opinion that in the present case it is not possible to separate the arguments relating to defects that occurred in the proceeding from the claim regarding the consideration of extraneous considerations. This is because, as I will wish to show below, I am of the opinion that the arguments regarding the defects that occurred in the decision-making process and the arguments regarding the extraneous considerations that were, according to the claim, at its core, are so intertwined that they cannot be severed. Therefore, I will discuss these arguments in unison.
B.1. Extraneous Considerations - Normative Framework
- A basic rule in our legal system states that an administrative authority exercising governmental authority is entitled to take into account relevant considerations - including only them. For this reason, it is a well-established rule that even a decision made with authority may be invalidated because it has been proven that extraneous considerations were at its basis (see, among many: High Court of Justice 4790/14 United Torah Judaism - Agudat Yisrael - Degel HaTorah v. Minister of Religious Services, paragraph 49 of the judgment of Justice Vogelman [Nevo] (October 19,2014) (hereinafter: the United Torah Judaism case); Appeal Petition/Administrative Claim 343/09 Jerusalem Open House for Pride and Tolerance v. Jerusalem Municipality, IsrSC 66(2) 1,39 (2010) (hereinafter: the Open House case); High Court of Justice 5016/96 Horev v. Minister of Transport, IsrSC 51(4) 1,34 (1997); Dafna Barak-Erez, Administrative Law, Vol. 2, No. 635 (2010) (hereinafter: Barak-Erez, Vol. 2); Yitzhak Zamir, Administrative Authority, Vol. 5: Grounds for Judicial Review 3493 (2020) (hereinafter: Zamir, Vol. 5)).
These are not recent legal innovations. The judge's words on this matter are published C. Berenson written about 70 years ago, in the first decade of the state's existence, according to: