The appellants then appealed to a single justice of the Court pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth). Such an appeal is confined to a question of law arising from the decision of the Tribunal. The principal argument that was relied upon during the appeal was that the Minister did not have the power to revoke the grant of a certificate for the reasons submitted to the Tribunal. The trial judge rejected this submission. He came to the same conclusion as the Tribunal namely that there was an implied power of revocation which was exercisable before an applicant obtained Australian citizenship provided the original decision was based on an erroneous view of the facts. In support of his conclusion the trial judge relied upon a passage in the judgment of Beaumont J in Comptroller General of Customs v Kawasaki Motors Pty Ltd (No 1) (1991) 32 FCR 219 at 225 where his Honour (as a member of the Full Court) said:
"Some administrative decisions, once communicated, may be irrevocable. But where it appears to a decision-maker that his or her decision has preceded upon a wrong factual basis or has acted in excess of power, it is appropriate, proper and necessary that the decision-maker withdraw his or her decision."
The trial judge also held that s 33(3) of the Interpretation Act was an additional source of power to revoke the grant of a certificate for the reason that the instruments to which s 33(3) could apply were not confined to instruments of a legislative character. In this regard his Honour relied on Barton v Croner Trading Pty Ltd (1984) 3 FCR 95 esp at 110 and Re Brian Lawlor Automotive Pty Ltd & Collector of Customs (NSW) (1978) 1 ALD 167 at 172. The trial judge confined the application of s 33(3) to the period between the grant of a certificate under s 13(1) and the time when an applicant becomes an Australian citizen. Precisely how the power conferred by s 13(1) can be extended by s 33(3) for a limited period was not explained. For myself, I doubt whether s 33(3) can have that application but as the point was not argued it is not necessary to resolve it to arrive at a decision on this appeal and I say no more about it.
I can now turn to the submission made on the appeal to this Court. Here again it was argued that once the Minister (through his delegate) had granted a certificate under s 13(1) he was functus officio and could not revoke that grant. It was also submitted that a power to revoke a certificate could not be implied in the Citizenship Act and that the Citizenship Act manifested an intention that was contrary to the adoption of s 33(3) of the Interpretation Act.
In my opinion, it is possible to dispose of this appeal without embarking upon a consideration of the applicability of the principles of law which find their shorthand expression in the Latin phrase "functus officio". Further, the real issue that is raised by this appeal can be resolved without the need to consider when and in what circumstances it is appropriate to imply a power to revoke or reconsider a decision made in pursuance of a statutory right, duty or discretion although it is necessary to say something about those circumstances.
The origin of the principle of functus officio as that expression is currently employed is to be found in the latter part of the last century in England when it was decided that a final decision of a court could not be reopened. The reason given was that the power to reopen a dispute had been transferred to the court of appeal: Re St Nazaire Co (1879) 12 ChD 88. The rule applied only after the formal judgement of the court had been passed and entered and was subject to two exceptions, viz. where there had been a slip in drawing it up and where there had been an error in expressing the intention of the court: Re Swire (1885) 30 ChD 239; Preston Banking Co v Allsup & Sons [1895] 1 Ch 141; Ainsworth v Wilding [1896] 1 Ch 673. According to Jowett's Dictionary of English Law (2nd ed 1977) the principle applies to a judge, a magistrate or an arbitrator who has given his decision or made an award.
A similar rule applies to the exercise of a statutory power or function but for a different reason. If a statute confers a power or a function, once that power has been exercised or the function performed the purpose for its creation has been fulfilled with the consequence that the power or function is exhausted. In Blacks Law Dictionary (5th ed 1979) functus officio is defined as "a task performed" and it is applied to "an instrument, power agency etc which has fulfilled the purpose of its creation and is therefore of no further effect or virtue".
It is for this reason that where it is sought to reconsider the exercise of a statutory power or the performance of a statutory function it is necessary to find the power to do so in the statute. That power may be express or it may exist by way of implication. In the case of some statutes the power will be implied as a result of the application of s 33(3) of the Interpretation Act. The circumstances in which s 33(3) of the Interpretation Act will be held to apply to reconsider the grant or issue of an instrument have not been finally settled. There are cases that have held that s 33(3) only applies to the grant or issue of a document of a legislative character: see e.g. Australian Capital Equities Pty Ltd v Beale (1993) 41 FCR 242 at 256-257 per Lee J. There are other cases that support the view that the section can have application to the grant or issue of any instrument: see e.g. Re Brian Lawlor 1 ALD 167 at 172 per Brennan J. It is not necessary to resolve this difference of opinion.
When one turns to consider the circumstances in which a power of reconsideration will be implied an examination of the cases shows that no coherent set of principles has as yet been developed. The courts have been required to choose between two competing interests. On the one hand there is the desirability for the administration to be able to correct decisions arrived at as a result of an error of law or an error of fact. In some cases it may also be desirable that an administrative decision be altered when there has been a change in policy. On the other hand, if a decision is favourable to an individual its reconsideration may cause a real sense of grievance: see generally M Akehurst, "Revocation of Administrative Decisions" [1982] Pub Law 613.
These competing views are reflected in the cases. So it has been held that a decision of the War Damage Commission which had the duty of determining what amount was payable to an owner whose property had been damaged by enemy action could not be altered or withdrawn: Re 56 Denton Road, Twickenham [1953] 1 Ch 51. This authority is probably confined to the circumstance where the decision-maker is given the duty of deciding questions affecting existing legal rights and is not concerned with the case where the citizen will benefit from the exercise of a discretionary power. There it has been held that the power is capable of being exercised from time to time: see Rootkin v Kent County Council [1981] 1 WLR 1186 where the decision of a council to revoke the issue of a season ticket for bus travel was held to be within power when the original decision had been based on the erroneous belief that the ticketholder was required to travel a distance of more than three miles to school.
Other examples of cases where the power of reconsideration has not been implied include Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429 and Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 145 ALR 532. Sloane was concerned with the refusal of the Minister to reconsider an application for an entry permit under the Migration Regulations. French J held that the implication of such a power could generate endless requests for reconsideration and given that the Migration Act 1958 (Cth) contains specific provisions for the review of decisions the implication should not be made. In Jayasinghe Goldberg J came to the same conclusion with regard to the Refugee Review Tribunal, a tribunal that had been established by the Migration Act to review decisions to refuse to grant or cancel a protection visa issued to a person who claimed to be a refugee under the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1976. It may be that these cases can be explained on the basis that the decision-maker was concerned to determine the existing rights of an applicant as was the case with the War Damage Commission considered in 56 Denton Road. However, in Canada the Supreme Court held that the Immigration Appeal Board has power to reconsider its decisions where an applicant sought to rely on new evidence: see Grillas v Minister of Manpower & Immigration [1972] SCR 527. That board is authorised to hear appeals against deportation orders and in that regard performs a function which is similar to that performed by the Refugee Review Tribunal.
There are other cases where it has been held that a power to reconsider should be implied where new evidence becomes available which throws doubt on the correctness of the earlier decision. Re Lornex Mining Corporation Ltd and Bukwa (1976) 69 DLR (3d) 705 is an example of such a case. There the British Columbia Supreme Court (Verchere J) held that the Human Rights Commission had the power to reconsider a matter in those circumstances. The court reached this conclusion because there was no right of appeal by way of rehearing from a decision of the Human Rights Commission and because it was necessary that the Human Rights Act 1969 (B.C.), which established the Commission, should be given a beneficial construction.
Kawasaki Motors is another example where the implication of a power to reconsider was made. I have already cited from the reasons of Beaumont J where the relevant principle appears and it is to the effect that a decision that proceeded on a wrong factual basis should be capable of revocation. I do not consider that his Honour was seeking to lay down a principle of general application to all administrative decision-makers but was confining himself to the exercise of the power there under consideration namely the grant of a tariff concession order under Part XVA of the Customs Act 1901 (Cth). However, if it is to be taken as a statement of general principle to be applied whenever possible, it has much to commend it in my opinion. There is a good deal to be said for the view that an administrative decision which is plainly erroneous should not stand.
The cases that I have mentioned so far are concerned with the reconsideration of a valid administrative decision. What is the position in relation to an invalid decision? By an invalid decision I mean a decision which can be impugned for jurisdictional error or for a failure to observe procedural fairness or one that is brought about by fraud or misrepresentation. It is common to find that expressions such as "ultra vires", "void" and "nullity" are used to describe these decisions. For a time they were also described as "voidable". For an illuminating discussion of these concepts reference should be made to the articles by Professor W Wade entitled, "Unlawful Administrative Actions: Void or Voidable" in (1967) 83 LQR 499 and (1968) 84 LQR 95.
When an administrative decision is invalid the question arises whether the decision-maker may recognise the fact of invalidity and seek to treat the decision as inoperative. Is a decision-maker permitted to do so or must the decision-maker's power to do so depend upon the existence of an express or implied power of reconsideration?
Before turning to answer this question I need to deal with the consequences of an administrative decision being invalid. It has been said that an administrative decision is not invalid or void in any absolute sense: see Wade and Forsyth, Administrative Law (7th ed) (1994) at pp 339-344. In part this derives from a statement in the speech of Lord Radcliffe in Smith v East Elloe Rural District Council [1956] AC 736 where, in connection with a compulsory purchase order, his Lordship said at 769-770:
"An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders."
In Ousley v The Queen (unreported, High Court, 20 October 1997) Gummow J expressed himself in much the same terms at p 68:
"The more appropriate principle is that the validity of an administrative act or decision and the legality of steps taken pursuant to it are presumed valid until the act or decision is set aside in appropriate proceedings. Where 'acts are of an official nature ... everything is presumed to be rightly and duly performed until the contrary is shown'" (citations omitted)
There is also a passage in the speech of Lord Diplock in Hoffmann-La Roche & Co A.G. v Secretary of State for Trade and Industry [1975] AC 295 which is relevant to this issue. Whilst dealing with the status of subordinate legislation on an interlocutory application his Lordship said at 366:
"All that can usefully be said is that the presumption that subordinate legislation is intra vires prevails in the absence of rebuttal, and that it cannot be rebutted except by a party to legal proceedings in a court of competent jurisdiction who has locus stand to challenge the validity of the subordinate legislation in question."
On the other hand, there are recent statements to the effect that an invalid decision can be void in the sense that, generally speaking, its existence can be ignored. This was the view of McHugh J in Ousley when he said (at p 31) that an administrative act made outside jurisdiction can be challenged in collateral proceedings for the reason that it is void and therefore need not be set aside by a court that has supervisory jurisdiction. To support this principle McHugh J referred to the following passage in the judgement of Dixon J in Posner v Collector for Inter-State Destitute Persons (Vic) (1946) 74 CLR 461 at 483:
"[W]hen a party is entitled as of right upon a proper proceeding to have an order set aside or quashed, he may safely ignore it, at all events, for most purposes. It is, accordingly, natural to speak of it as a nullity whether it is void or voidable, and, indeed, it appears almost customary to do so."
The House of Lords has also recently considered this question in R v Wicks [1997] 2 WLR 876. There Lord Hoffman referred to the views of Lord Radcliffe in Smith and (at 890) said that they were not capable of being generalised and that all that could be gained from Lord Radcliffe's speech was:
"that it is conceptually possible to have an act which is entirely valid and effective until quashed in appropriate proceedings. Whether a particular exercise of statutory power should be regarded as such an act is an altogether different question."
His Lordship also considered the passage cited from Lord Diplock in Hoffman-La Roche and said at 890:
"The presumption of validity to which Lord Diplock referred was in my view an evidential matter at the interlocutory stage and the presumption existed pending a final decision by the Court. Lord Diplock was not putting forward the sweeping proposition that subordinate legislation must be treated for all purposes as valid until set aside."
In other words the presumption of the validity of an administrative decision, to the extent that the presumption is to be made in a particular case, is no more than a rule of evidence pursuant to which a certain assumption will be made by a judge unless there is evidence which contradicts that assumption. As Kirby J said in Ousley at 95 the presumption is merely a tool in the process of reasoning to a decision. See also 9 Wigmore on Evidence (Chadbourn revision 1981) at para 2491.
It seems to me that it is possible to reconcile these apparently conflicting statements by considering the different purposes for enquiring whether an invalid decision is to be regarded as effective. If the validity of the decision is at issue in curial proceedings then the question that arises is whether the decision is of such a class or character that it is appropriate for the court to assume that it is valid unless the contrary is established by the party seeking to challenge it validity. The answer might depend upon the nature of the decision or it might depend upon the terms of the statute pursuant to which the decision was taken. Here one is only concerned with the burden of proof of an issue and not with the operational effect of a decision. Sometimes it is also necessary to enquire whether an invalid decision has any effect. There is no doubt that an invalid administrative decision can have operational effect. For example it may be necessary to treat an invalid administrative decision as valid because no person seeks to have it set aside or ignored. The consequence may be the same if a court has refused to declare an administrative decision to be invalid for a discretionary reason. In some circumstances the particular statute in pursuance of which the purported decision was taken may indicate that it is to have effect even though it is invalid or that it will have effect until it is set aside.
What is the effect of an invalid decision made under s 13(1) of the Citizenship Act? If an applicant has been granted a certificate and has made the prescribed pledge, the Citizenship Act confers the status of Australian citizenship on that applicant notwithstanding that the certificate has been obtained by fraud or misrepresentation. That is the result of ss 15 and 21. Thus the position is that either the decision granting the certificate continues to have effect or the fact that it is invalid is of no consequence. The opposite is the case where an applicant has not made the prescribed pledge. If the decision to grant the certificate to that applicant is invalid the Citizenship Act does not require the conclusion that the decision will have any effect. The decision can be ignored and the applicant cannot become an Australian citizen unless he or she obtains the grant of another certificate.
I now return to consider the question whether an invalid decision can be ignored only if there is an express or implied power to revoke or reconsider that decision.
A convenient starting point is the joint judgment of Hill and Heerey JJ in Kawasaki. One contention with which their Honours were concerned was the power of a decision-maker to treat a decision as invalid and of no effect in circumstances where the person who would be adversely affected by the invalidity of the decision was in agreement that it should be treated as invalid. Their Honours said at 32 FCR at 229-230:
"It would in our opinion be strange if an administrative order remained valid until set aside by an order of a court even though the decision-maker did not seek to uphold the order. Courts have long recognised the rule of policy that there is public interest in the avoidance of litigation and the termination of litigation by agreement when it has commenced. The argument that disputed orders could not be treated, by agreement of all concerned, as void would directly conflict with that rule. Parties would be forced into pointless and wasteful litigation."
It is hard to disagree with this conclusion. It would indeed be strange if a decision could not be ignored when the party who obtained it no longer sought to uphold that decision. But the fact that there is no person who seeks to uphold a decision does not say anything about the source of the power of the decision-maker to ignore the decision in question. If the decision is valid when made can it be ignored merely because all of the interested parties wish it to be ignored? Surely the decision-maker could only act in pursuance of the statute that defined his or her powers. I do not see how jurisdiction to ignore any act can be conferred on a statutory decision-maker merely by the consent of the persons who might be affected by that act. It is the Parliament, through its legislation, that confers power on a decision-maker and not those citizens whose rights, privileges or interests might be affected by the decision-maker.
But what if the decision is invalid? Can the decision be ignored if the consent of all interested parties is obtained or is there some other principle that governs the situation? In my opinion, the true principle is this. To ignore an invalid decision is not to revoke it. It is merely to recognise that that which purports to be a decision does not have that character. To decide the matter again is not a reconsideration of it. It is in fact the original exercise of the power to make the decision. Hence, the rule embodied in the expression "functus officio" has no application to such a case. Nor is there any need to find either an express or an implicit power of reconsideration. Those doctrines, to the extent that they are applicable to administrative decision-making, only apply to validly made administrative decisions.
There are a number of cases that support this conclusion. One is Lange v Board of School Trustees of School District No 42 (1978) 9 BCLR 232, a decision of the Supreme Court of British Columbia. I take the facts from the headnote. Lange was a teacher employed by the school board. He was dismissed following a hearing at which the school board considered two charges of misconduct. The reasons for dismissal referred to a third charge which was not mentioned at the hearing. Lange appealed the decision of dismissal to a board of reference on the ground that there had been a breach of the rules of natural justice in that the school board had denied him the right to be heard in respect of the third charge. The board of reference agreed that there had been a denial of natural justice, allowed the appeal and ordered that Lange be reinstated. Thereafter the school board again suspended Lange on the basis of the original three charges of misconduct. Lange sought to review the second decision of the school board. He relied upon a number of grounds one of which was that the school board was without jurisdiction to reopen and rehear the complaint against him. Macfarlane J disposed of this contention in short compass. He said at 238:
"Counsel for the respondent contends, and I think correctly, that there is a difference between those cases where what was being reconsidered was a valid decision which the Board in question had earlier made and this case where the school Board, having had its earlier decision rendered a nullity, commenced fresh proceedings with respect to the same subject matter."
Accordingly, his Honour held that because the earlier order was a nullity there was no order in existence and the question remained to be decided anew.
The second decision to which reference should be made is the decision of the Supreme Court of Canada in Chandler & Ors v Alberta Association of Architects [1989] 2 SCR 848. The appellants were architects whose conduct was investigated by a board established under Architects Act 1980 (Alberta). The board found the appellants guilty of unprofessional conduct and imposed fines totalling $127,500 and ordered them to pay costs of approximately $200,000. These decisions were quashed on the basis that the board lacked jurisdiction to make them. The board then notified the appellants it intended to conduct a further enquiry and hand down a report of its findings being steps that were within its jurisdiction. The appellants challenged the board's ability to undertake the enquiry on the basis that it was functus officio. Sopinka J delivered the majority decision of the Supreme Court dismissing the application. In the course of his reasons Sopinka J noted that the Architects Act did not confer power on the board to rescind, vary, amend or reconsider its decisions. Accordingly, it was necessary to determine whether it had made a final decision and was therefore functus officio. His Honour accepted that, as a general rule, once a tribunal has rendered a decision on a matter before it that decision could not be reviewed because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change in circumstances. However, he went on to say that where a tribunal makes a decision that is a nullity it should be permitted to reconsider the matter and render a valid decision: Chandler at p 862. In support of this proposition his Honour relied upon the following passage from the judgment of McLachlin J in Re Trizec Equities Ltd v Area Assessor Burnaby-New Westminster (1983) 147 DLR (3d) 637 at 863:
"I am satisfied both as a matter of logic and on the authorities that a tribunal which makes a decision in the purported exercise of its power which is a nullity, may thereafter enter upon a proper hearing and render a valid decision: Lange v Board of School Trustees of School District No. 42 (Maple Ridge) (1978) 9 BCLR 232 (BCSC.) Posluns v Toronto Stock Exchange et al (1968), 67 DLR (2d) 165, [1968] SCR 330. In the latter case, the Supreme Court of Canada quoted from Lord Reid's reasons for judgment in Ridge v Baldwin, [1964] A.C. 40 at p.79, where he said:
'I do not doubt that if an officer or body realises that it has acted hastily and reconsiders the whole matter afresh, after affording to the person affected a proper opportunity to present its case, then its later decision will be valid.'
There is no complaint made by Trizec Equities Ltd. with respect to the hearing held on March 19th. Accordingly, while the court exceeded its jurisdiction by purporting to increase the assessments on the morning of March 17, 1982, its subsequent decision of March 19, 1982, stands as valid.
If the error which renders the decision a nullity is one that taints the whole proceeding, then the tribunal must start afresh. Cases such as Ridge v Baldwin, [1964] A.C. 40 (H.L.): Lange v Board of School Trustees of School District No. 42 (Maple Ridge) (1978), 9 BCLR 232 (SCBC.) and Posluns v Toronto Stock Exchange, [1968] SCR 330, referred to above, are in this category. They involve a denial of natural justice which vitiated the whole proceeding. The tribunal was bound to start afresh in order to cure the defect."
In the result Sopinka J held that because the original decision of the board was a nullity it was entitled to properly dispose of the matter.
In addition, there are a number of migration cases in England where it has been held that a permission to enter and remain in the United Kingdom under s 3(1) of the Immigration Act 1971 (UK.) that was obtained by reason of fraud or misrepresentation can be ignored. It has not been suggested in any of these cases that the decision-maker is only entitled to ignore that permission if there is an express or implied statutory power to do so. For example in R v Secretary of State for Home Department; Ex parte Hussein [1978] 1 WLR 700 after referring to the false statement that had been made by the applicant to the immigration officer, Geoffrey Lane LJ said:
"The truth, as the applicant knew, was the opposite. In those circumstances, what appears to have been on the face of it a permission to stay here indefinitely was a permission obtained by fraud or misrepresentation and was therefore of no effect."
See also R v Secretary of State for Home Department; Ex parte Choudhary [1978] 1 WLR 1178, Zamir v Secretary of State for Home Department [1980] AC 930 and R v Home Secretary; Ex parte Khawaja [1984] 1 AC 74 (not following Zamir in part).
All of these cases confirm my view that an invalid decision made under s13(1) of the Citizenship Act can be ignored and that the principle of functus officio does not prevent the decision-maker from doing so: see also M. Akehurst, "Revocation of Administrative Decisions" supra at 619-620; R.A. Macdonald, "Reopenings, Rehearings and Reconsiderations in Administrative Law" (1979) 17 Osgoode Hall LJ 207 at 210-211 but compare E. Campbell, "Revocation and Variation of Administrative Decisions" (1996) 22 Mon. L.R. 30 at 41-45.
Let me now return to the facts of this appeal. Each appellant obtained a certificate from the Minister having misrepresented the nature of the activities that were being undertaken by the appellants whilst outside Australia. The Minister has now discovered the true position and whilst not wishing to allege that the appellants were guilty of fraud, has "revoked" the certificates granted to them and treated that revocation as a refusal of their applications for certificates under s 13(1). There is no doubt that the Minister was entitled to take these steps. No statutory power was required. The original decisions, having been obtained by a misrepresentation, were not decisions made in the true exercise of the power conferred by
s 13(1) and can be treated as having no effect.
Accordingly, in my view, the appeal should be dismissed with costs.
I certify that this and the preceding sixteen (16) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein
Associate:
Dated: 28 November 1997
Counsel for the appellant: P Woodhouse
Solicitor for the appellant: Jonathon Wong Solicitors
Counsel for the respondent: TJ Ginnane
Solicitor for the respondent: Australian Government Solicitor
Date of Hearing: 10 October 1997
Date of Judgment: 28 November 1997