In what circumstances should a court find an implication in the words of a statute? As French J and Beazley JJ said in Austereo Ltd v Trade Practices Commission (1993) 41 FCR 1 at 48 "statutory implications are not to be made lightly". The threshold of "necessity" has been rejected in favour of the formulation that the implication be "proper". In Austero (supra) French and Beazley JJ accepted as a correct formulation the following passage in Bennion, Statutory Interpretation (2nd ed, 1992), 367:
"The question of whether an implication should be found within the express words of an enactment depends on whether it is proper or legitimate to find the implication in arriving at the legal meaning of the enactment, having regard to the accepted guides to legislative intention. It is for the court to decide whether a suggested implication is 'proper'. This may involve a consideration of the rules of language or the principles of law, or both together. Where the point is doubtful it will, as always in interpretation, call for a weighing and balancing of the relevant factors".
Mr Niall relied particularly on s 420 and submitted that, as the objectives of the Tribunal are to provide a mechanism of review which is fair, just, economical, informal and quick, and as the Tribunal is not to be bound by technicalities or legal forms, and is to act according to substantial justice and the merits of the case, it follows that a power in the Tribunal to re‑open or reconsider a decision should be implied as it would promote those objectives. He relied upon Sloane (supra, 443) where French J said that a power to re‑open avoids "the necessity of invoking a full panoply of judicial or expressed statutory review procedures". I note in passing that in the legislation before French J there was a provision identical to s 420 which applied to the Immigration Review Tribunal: s 64E of the Migration Legislation Amendment Act 1989. However as the powers of the Immigration Review Tribunal were not under consideration in Sloane v Minister for Immigration, Local Government and Ethnic Affairs (supra) the relevance of that provision did not arise.
Mr Niall referred to the judgment of Beaumont J in Comptroller‑General of Customs v Kawasaki Motors Pty Ltd (supra) in which the Full Court had to consider whether a decision to revoke a tariff concession was effective. Beaumont J asked the question (225) whether, on the true construction of the statute "any function actually remained to be performed". In the circumstances of this case, that question must be answered in the negative. After the Tribunal prepared its written statement in respect of its "decision on a review" in accordance with s 430(1) and gave a copy of it to the applicant and the secretary, it had no further function to perform.
Mr Niall sought support from the decision of the New Zealand Court of Appeal in R v Loumoli [1995] 2 NZLR 656 where it was held that once a jury had been discharged, although it could not be recalled and sent back to reconsider its verdict, it might be reconvened to correct an error made in the conveyance or recording of the verdict. It was implicit in this decision that a jury was not functus officio at the point at which it had been discharged. Mr Niall relied upon this decision in support of his submission that the fact that the Tribunal had made a determination on the merits did not mean that it was functus officio particularly when it had sought information from the Sri Lanka Red Cross and it was told that they were still investigating the matter. However that decision is of no assistance in determining the scope and extent of the legislative intention in the Act as to the extent of the powers of the Tribunal.
Mr Downing submitted that the judgment of French J in Sloane v Minister for Immigration, Local Government and Ethnic Affairs (supra) supported the submission that an implication of the power to re‑open was not proper or necessary because there was now a new structure in the Act which provided a greater opportunity for review than in the past and in the situation confronting French J there was no power to lodge further application.
Mr Downing submitted that the statutory scheme militated against the proposition that there could be a decision after a final operative decision for the purposes of s 430 which enabled a reconsideration or re‑opening of that final operative decision. He relied upon s 416 which contemplates that subsequent information might arise not considered on an application and provides a mechanism for further consideration. He also drew in aid s 420(1) which requires a quick mechanism of review as an objective of the Tribunal. He submitted that these sections militated against an implication of a power in the Tribunal to re-open or reconsider a decision of the merits of a review.
The right recognised by s 50 may be restricted in the manner to which I have referred but in my opinion it constitutes a statutory recognition that circumstances and facts may emerge after a Tribunal decision which ought to be the subject of a further application for a visa. Section 50(a) contemplates that the refusal of the grant of the visa has been the subject of an application to the Tribunal, so much appears from the words "the application has been finally determined". The Minister is not bound to disregard information in the earlier application, nor is the Minister bound to have regard to the earlier decision. The Minister has a discretion but the fact of the further application procedure being available militates against it being proper or desirable, or even necessary, that the Tribunal have a power to re‑open or reconsider a decision. I draw the same conclusions from the existence of the opportunity to make a further application to the Tribunal to review an RRT‑reviewable decision: s 416. Again there is a recognition that circumstances and facts relevant to the application of the applicant for a visa may emerge after the Tribunal's decision which may be brought before the Tribunal if a further application is made resulting in an RRT‑reviewable decision.
When one takes into account the statutory provisions to which I have referred and in particular has regard to the provisions relating to the opportunity to make a further application to the Minister and a further application to the Tribunal, I do not consider it would be proper, in the absence of a clear legislative intention, to imply a power in the Tribunal to reconsider or re‑open a decision.
Conclusion
It follows, therefore, in my opinion, that the Tribunal did not have the power to re‑open or reconsider its decision of 31 October 1995 and that it acted correctly in informing the application's solicitors on 5 August 1995 that it was functus officio. There is no implied power on the part of the Tribunal to reconsider a decision on the review as provided for in s 430.