Cavaleri v Director General, Department of Trade and Investment, Regional Infrastructure and Services

Appeal 8Mr Cavaleri lodged his notice of appeal on 19 September 2013. 9The ADT has been abolished, and the appeal is now before the Appeal Panel of the New South Wales Civil and Administrative Tribunal (NCAT) created by the Civil and Administrative Tribunal Act 2013 (NCAT Act). The appeal remains governed by the provisions applicable to ADT appeals. See NCAT Act, sch 1, cl 7. 10Accordingly the Panel is constituted in conformity with the provisions of the Administrative Decisions Tribunal Act 1997, and the appeal may, as provided under those provisions relate to any question of law, and the appeal may be extended to the merits, if leave is granted by the Appeal Panel. 11Mr Cavaleri's appeal raises questions of law, and applies for leave to extend the appeal to the merits. 12Mr Hatzistergos, counsel for Mr Cavaleri, divided his arguments into three points which he labelled as, one, 'accrued rights', two, 'repugnancy' and three, 'failure to exercise jurisdiction' (an argument made as a corollary to arguments one and two, and which depended for its success on the success of the principal arguments). Mr Dalla-Pozza appeared for the agency, and supported the Tribunal's decision. 13The parties filed written submissions, and extensive lists of authorities. 14We will begin by setting out the legislative background to the points raised.

The NIAA Scheme 15The NIAA governs the introduction into the State of certain species of animals and regulates the movement and keeping of those animals within the State (see long title). It provides for the classification of non-indigenous animals, and establishes a licensing and permit system for the keeping and movement of non-indigenous animals. 16Section 6 provides: 6 Classification of animals For the purposes of this Act, the regulations may from time to time: (a) prescribe categories of animals, and (b) identify any such prescribed categories as controlled categories, and (c) identify any such controlled categories as either higher-risk or lower-risk categories, and (d) classify animals, by species, as belonging to any prescribed category. 17Section 6A (added in 1996) provides: 6A Basis of animal classification (1) Classification of animals under section 6 is to be based on: (a) the animal's pest potential with respect to agricultural and pastoral interests and the environment, and (b) any danger posed by the animal to humans, and (c) security requirements for keeping or transporting the animal, and (d) the degree to which the animal, if actually or potentially a pest, is already established, and (e) any other factors identified by the regulations. (2) In recommending the making of a regulation for the purposes of section 6, the Minister is to have regard to any scheme of classification currently used by the National Vertebrate Pests Committee of the Standing Committee on Agriculture and Resource Management or by any other persons or bodies prescribed for the purposes of this subsection. (3) Before recommending the making of a regulation for the purposes of this section in relation to any birds, the Minister is to consult any persons or bodies prescribed for the purposes of this subsection. 18Crab-eating macaques are classified as Category 3a animals, because they are considered to be 'species which pose some threat to persons or domestic or native fauna and are permitted to be kept primarily for the purpose of exhibition, education, entertainment or conservation in high security institutions'. There are offence provisions if such animals are kept without a licence. 19The considerations to which the agency may have regard in exercising its discretion to grant a licence are set out in s 15 and the section allows for additional matters to be prescribed by regulation.

Section 15 20First we will set out s 15 which has remained unchanged: 15 Grant and renewal of licences (1) The Director-General may grant, and from time to time renew, a licence authorising the holder to keep such animals as may be specified in the licence. (2) In considering whether to grant a licence or renewal, the Director-General shall have regard to: (a) the premises, vehicle or other accommodation intended to be provided as the licensed accommodation for the animals proposed to be kept, (b) the number of animals kept or proposed to be kept, (c) the capacity of the applicant for the licence to care for the animals, taking into account any previous experience of the applicant in caring for animals of that or a similar species, (d) the character of the applicant, taking into account any conviction of the applicant, known to the Director-General, for an offence under: (i) this Act, (ii) the Prevention of Cruelty to Animals Act 1979, or (iii) any other law (whether of the State or of the Commonwealth or another State or Territory of the Commonwealth) relating to the keeping or protection of animals, (e) the listing of the animals under the Australian Species Management Scheme operated by the Association of Zoo Directors of Australia and New Zealand or any prescribed scheme relating to the management of animal species, (f) any law in force relating to quarantine, and (g) any prescribed matter. (3) In considering whether to grant or renew a licence, the Director-General may employ a higher or lower standard in relation to the criteria set out in subsection (2), depending on the prescribed category of the animals intended to be kept under the authority of the licence or renewed licence. (4) If the Director-General decides not to grant or renew a licence, notice shall, as soon as practicable after the decision is made, be given to the applicant or licensee stating the reason.

The 2006 Regulation 21As previously noted at the time of the agency's decision, the matters prescribed under s 15(2)(g) by the Non-Indigenous Animals Regulation 2006, cl 18 (2006 Regulation), were as follows: 18 Licences and renewals: matters prescribed under section 15 (2) (g) (1) In considering whether to grant a licence or renewal, the Director-General must have regard to the following matters: (a) the security and care required for the animals that are to be kept or are kept under the licence, (b) whether the number of licences in force that relate to certain species of animals should be restricted and, if it should be restricted, whether the grant of the licence or its renewal would violate that restriction, (c) in the case of a licence for an agent of a zoo to keep a category 3a animal, whether there is a written agreement between the agent and the institution that transfers the animal to the agent and whether the agreement contains a requirement that the agent must transfer the animal back to the institution on demand, (d) in the case of a licence or renewal of a licence to keep an animal of the Order Primates, or Funambulus pennantii (commonly known as the Northern Palm-squirrel): (i) the life expectancy of the animal, and (ii) the specialised care requirements of the animal, and (iii) the general welfare of the animal. (2) In considering whether to grant a renewal of a licence, the Director-General must also have regard to whether the licensee has had an animal of the species to which the application relates in the licensee's keeping at any time during the immediately preceding 12 months.

The 2012 Regulation 22On 1 September 2012 the old Regulation was repealed and the new Regulation took effect, the Non-Indigenous Animals Regulation 2012 (the 2012 Regulation). The matters prescribed under s 15(2)(g) were substantially expanded. They are dealt with in the new cl 35 which provides: 35 Matters to which Director-General must have regard (1) For the purposes of section 15 (2) (g) of the Act, the following matters are prescribed as additional matters to which the Director-General must have regard in deciding whether to grant a licence or renewal: (a) the life expectancy of any animal that is to be kept under the licence, (b) the specialised care requirements of any animal that is to be kept under the licence, (c) the general welfare of any animal that is to be kept under the licence, (d) the security and care required for the animal that is to be kept under the licence, (e) whether the number of licences in force that relate to certain species of animals should be restricted and, if it should be restricted, whether the grant of the licence or its renewal would violate that restriction, (f) in the case of a licence to keep a higher-risk category animal where the applicant is an agent of the holder of a licence under the Exhibited Animals Protection Act 1986: (i) whether there is a written agreement between the agent and the institution that transfers the animal to the agent, and (ii) whether the agreement contains a requirement that the agent must transfer the animal back to the institution on demand, (g) in the case of an application for a licence to keep any higher-risk category animal: (i) whether the applicant, immediately before 1 September 2012, held a licence under the Non-Indigenous Animals Act 1987 in relation to a higher-risk category animal, and (ii) whether the applicant is accredited as a research establishment under the Animal Research Act 1985, (h) whether the applicant is a party to a written lease agreement or other formal written arrangement with the owner of the licensed accommodation that provides the licensee with the following rights: (i) the right to use the premises as accommodation for the animal kept under the authority of the licence, (ii) the right to do anything on the premises that may be required under the Non-Indigenous Animals Act 1987 or this Regulation in relation to the use of the premises as licensed accommodation, (iii) the right to invite authorised officers on to the premises, (i) whether the applicant has made a statement or furnished information in connection with the application, or any previous application under section 14 of the Non-Indigenous Animals Act 1987, that was, in the opinion of the Director-General, false or misleading, (j) whether the applicant resides in New South Wales or has a registered office in New South Wales, (k) whether the applicant has previously held a licence that has been cancelled, (l) whether the applicant has been convicted of an offence under: (i) the Non-Indigenous Animals Act 1987 (including any regulations under that Act), or (ii) the Prevention of Cruelty to Animals Act 1979 (including any regulations under that Act), or (iii) any other law (whether of the State or of the Commonwealth or of another State or Territory) relating to the keeping or protection of animals. (2) In deciding whether to grant a renewal of a licence, the Director-General must also have regard to the following: (a) whether the licensee has had an animal of the species to which the application relates in the licensee's keeping at any time during the immediately preceding 12 months, (b) whether the licensee has, in the opinion of the Director-General: (i) failed to comply with a condition of the licence, or (ii) failed to comply with, or ensure that the licensed accommodation complied with, a requirement or standard prescribed for the purposes of section 15 (2) (g) of the Act. (3) In deciding whether to grant a licence, in addition to the matters prescribed by subclause (1), the Director-General must have regard to whether the granting of the licence would be in accordance with the categories of non-indigenous animals prescribed by clause 4.

The Restriction on Applicants 23It will be seen that cl 35(3) refers to cl 4. Of particular relevance to Mr Cavaleri's case is cl 4(1)(d), which is stricter in its terms than the clause in force at the time of the agency's decision. Clause 4(1)(d) states: (1) The following categories of non-indigenous animals are prescribed for the purposes of section 6 (a) of the Act: (d) category 3a (animals that pose a less serious or moderate threat to the environment, agriculture or persons, and that are restricted to being kept in licensed animal display establishments or by: (i) a corporation that is accredited as a research establishment under section 20 of the Animal Research Act 1985, or (ii) an individual who holds an animal research authority issued under section 25 of the Animal Research Act 1985, or (iii) a person who holds an animal supplier's licence issued under section 39 of the Animal Research Act 1985), 24It will be seen that this provision purports to limit the granting of any licence to certain categories of applicant. As noted earlier, Mr Cavaleri acknowledges that he does not fit into any of these categories. The equivalent in the 2006 Regulation did not have any restrictions on permitted applicants. 25Clause 4 of the 2006 Regulation was as follows: 4 Prescribed categories (1) The following categories of animals are prescribed for the purposes of section 6 (a) of the Act: (a) category 1a and category 1b (animals the importation and keeping of which are prohibited), (b) category 2 (animals limited to restricted collections), (c) category 3a and category 3b (animals permitted in other collections), (d) category 4 (animals the importation and keeping of which are not restricted), (e) category 5 (animals that are already widespread pests). (2) Categories 1a, 1b, 2, 3a and 3b are identified as controlled categories for the purposes of section 6 (b) of the Act. (3) Categories 1a, 1b, 2 and 3a are identified as higher-risk categories for the purposes of section 6 (c) of the Act. (4) Category 3b is identified as a lower-risk category for the purposes of section 6 (c) of the Act. Note. The categories set out in clause 4 reflect the categories adopted by the National Vertebrate Pests Committee, a subcommittee of the Natural Resource Management Standing Committee. Under the Committee's categorisation: (a) Category 1a consists of species categorised as being of extreme pest potential and are generally not permitted to enter Australia or be kept there. (b) Category 1b consists of species that have not been classified as belonging to any particular category and are generally not permitted to enter Australia or be kept there. (c) Category 2 consists of species of high pest potential or of significant conservation value. (d) Category 3a consists of species that pose some threat to persons or domestic or native fauna and are permitted to be kept primarily for the purpose of exhibition, education, entertainment or conservation in high security institutions. (e) Category 3b consists of species that have the potential to establish in the wild a population that would present a new threat or aggravate an existing threat and may be kept in private collections only under licence subject to special conditions. (f) Category 4 consists of species that would be unlikely to present a threat or greatly worsen an existing threat if they escaped into the wild. Animals in this category will usually be domestic or farm animals having no pest potential. (g) Category 5 consists of species that if they escaped into the wild would be unlikely to establish a population that would present a threat or greatly worsen an existing threat. Animals in this category will usually currently be widespread pests.

Accrued Rights 26As Gleeson CJ noted in Attorney-General (Qld) v Australian Industrial Relations Commission [2002] HCA 42; (2002) 213 CLR 485: When a statute changes the law, the effect of the change upon existing rights, liabilities, claims, or proceedings is determined by the meaning of the statute. The common law developed rules of statutory construction as an aid to discovering that meaning. Such rules involved presumptions; but, being rules of construction, they were subject to any contrary intention evinced with sufficient clarity in the statute. When expressed in summary form, those rules distinguished between retrospective and prospective effect, and between procedural provisions, and provisions affecting rights or liabilities. However, such distinctions are not always clear-cut. The terms retrospective and prospective may often be a convenient shorthand, but in a given case it may be necessary to identify more precisely the particular application of the alteration to the law in question. And, as the present case shows, there may be rights which, in their nature, are closely bound up with procedures and remedies. 27Section 30 of the Interpretation Act 1987 (the NSW Interpretation Act), in particular s 30(1)(c), (2)(b), (d), provides: 30 Effect of amendment or repeal of Acts and statutory rules (1) The amendment or repeal of an Act or statutory rule does not: ... (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, or (2) Without limiting the effect of subsection (1), the amendment or repeal of an Act or statutory rule does not affect: ... (b) any right, privilege, obligation or liability saved by the operation of the Act or statutory rule, or ... (d) the operation of any savings or transitional provision contained in the Act or statutory rule. 28These principles are consistent with the common law position. Fullagar J in Ferrum Metal Exports Pty. Ltd. v. Lang [1960] HCA 7; (1960) 105 CLR 647, at pp 655-656, summarised the principles as being: "those which are found in Surtees v. Ellison (13) (1829) 9 B. andC.750 [1829] EngR 594; (109 ER 278) and in Kay v. Goodwin (14) [1830] EngR 605; (1830) 6 Bing 576 (130 ER 1403). In the former case Lord Tenterden C.J. said: 'It has been long established that, when an Act of Parliament isrepealed, it must be considered (except as to transactions pastand closed) as if it had never existed'(15) (1829) 9 B. and C., atp 752 (109 ER, at p 279). In the latter case Tindal C.J. said: 'I take the effect of repealing a statute to be, to obliterate itas completely from the records of the Parliament as if it hadnever been passed; and it must be considered as a law that neverexisted, except for the purpose of those actions which werecommenced, prosecuted and concluded whilst it was an existinglaw'(16) (1830) 6 Bing., at pp 582-583 (130 ER, at p 1405)." 29The leading modern authority is Esber v Commonwealth [1992] HCA 20; (1992) 174 CLR 430. Mr Esber had been receiving injury compensation payments on a weekly basis for an injury incurred in 1982 when he was a soldier which left him partially incapacitated for work. He applied on 25 February 1987 under provisions then in force for redemption of his future payments as a lump sum. 30On 27 October 1987 the administrator refused the application. On 24 June 1998, an amendment received assent which prevented redemption in cases where payments of more than $50 per week were being made (Mr Esber's situation). The amendment commenced on 1 December 1998. Earlier, on 15 September 1998 he had applied out of time for review of the decision by the Administrative Appeals Tribunal (the application for extension of time was granted on 28 June 1989). 31The Commonwealth contended that because of the change in the law that had occurred after the administrator had considered his application, he was now barred from receiving a lump sum payment. The Tribunal rejected the submission, and held that the application should be determined under the old law. It granted Mr Esber's application. The Federal Court reversed the decision, by majority (Davies and Hill JJ, Lee J dissenting). Mr Esber appealed to the High Court. The High Court upheld his appeal and reinstated the Tribunal decision. 32The Court was satisfied as a matter of construction that the new law only applied the new rule to pre-repeal injury in cases not yet commenced: see, for example, per Mason CJ, Deane, Toohey, Gaudron JJ (the majority) at [15]-[17], citing Lee J with approval on this point. 33Strictly read, the High Court's decision turns on a point of statutory construction. It was a case where guidance could be obtained from the statute. 34Mr Cavaleri submitted that in this case there were no transitional provisions going to the question in issue; and guidance could not be drawn from the amendments or the statutory scheme read as a whole. Mr Cavaleri's arguments rely on the general principles found in s 30. Mr Cavaleri drew support for his submission that he was entitled to his case decided under the old law from the High Court's commentary on Mr Esber's case in the alternative. Mr Esber had submitted that if guidance could not be found within the statute, that the similar general principles found in s 8 of the Commonwealth in his case, in the alternative, that were the court not to obtain any guidance from the statutory scheme, the default principle favoured him. He had submitted that he had an accrued right of the kind to which the general principle in s 8 of the Commonwealth Acts Interpretation Act 1901 applied. 35The majority from [18] onwards fully considered this argument. It agreed with Mr Esber's submission, and gave two reasons. The critical passage appears at [21]: 21 ... If it be assumed that the appellant did not have a right to redemption in the sense first discussed, he had a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim. To borrow a sentence from the judgment of Hope J.A. in N.S.W. Aboriginal Land Council v. Minister (7) (1988) 14 NSWLR 685, at p 694: "The right might be said to be a conditional one, namely,conditional upon the relevant facts being established,but the right was nonetheless a right because it wasconditional." Once the appellant lodged an application to the Tribunal to review the delegate's decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely "a power to take advantage of an enactment" (8) Mathieson v. Burton [1971] HCA 4; (1971) 124 CLR 1, per Gibbs J. at p 23; and see Robertson v. City of Nunawading [1973] VicRp 81; (1973) VR 819. Nor was it a mere matter of procedure (9) See Newell v. The King [1936] HCA 50; (1936) 55 CLR 707, at pp 711-712; it was a substantive right(10). See, by way of analogy, Australian Coal and Shale Employees Federation v. Aberfield Coal Mining Co. Ltd. [1942] HCA 23; (1942) 66 CLR 161, at pp 175, 178, 185, 194; Colonial Sugar Refinery Company v. Irving (1905) AC 369, at pp 372-373. Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, "although that right might fairly be called inchoate or contingent"(11) Free Lanka Insurance Co. Ltd. v. Ranasinghe (1964) AC 541, at p 552; see also Continental Liqueurs Pty. Ltd. v. G.F Heublein and Bro. Inc. [1960] HCA 37; (1960) 103 CLR 422, at pp 426-427; Director of Public Works v. Ho Po Sang (1961) AC 901. This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by s.8 of the Acts Interpretation Act and was not affected by the repeal of the 1971 Act. 36Brennan J dissented. In his opinion, at most all that Mr Esber had accrued as at the time the law changed was merely a right to have his application determined, it did not extend to a vested right to have his application determined by reference to the old law. Brennan J referred to the nature of an administrative review hearing, noting that it involved a hearing de novo on the materials presently before the Tribunal, and differentiated it from the situation in judicial proceedings where the law in force at the time of the conduct in issue is applied, with the same principle applying on appeal. 37Mr Cavaleri relies on the majority analysis. The fair course, he submits, is to decide his case by reference to s 15 read in conjunction with the 2006 Regulation. If the 2012 Regulation is applied, then because in particular of the licence restriction he has no prospect of success. 38In addition Mr Cavaleri relied on two Federal Court Full Court cases applying Esber: Lee v The Secretary, Department of Social Security (1996) 68 FCR 491, esp Cooper J at 504-506 and Moore J at 515-516, and Repatriation Commission v Keeley (2000) 98 FCR 108 at [38]-[46] per Lee, Cooper JJ. In Lee, a social security recipient who had incurred a debt to the Commonwealth as a result of an unlawful payment applied to the administrator for it to be waived. The administrator's decision only granted a part waiver. The recipient applied for review. The law at the time of the administrator's decision conferred an unfettered discretion. By the time the matter came on for consideration by the review tribunal the law had been amended to confined the discretion narrowly. 39The tribunal applied the new law. The Court (Cooper, Moore JJ, Davies J dissenting) held that the old law should be applied. The majority focussed on the right of review, and regarded it as a right of a substantive not a procedural character. The broadest statement appears in the decision of Moore J at [20]-[22] of his reasons: 20. Two matters emerge, in my opinion, from this part of the reasons of the majority. 21. The first is, as is apparent from the passages preceding the quotation from Drake and following the quotation from NSW Aboriginal Land Council, that a statutory right to seek a review of a decision made under a repealed Act is a right for the purposes of s8 of the Acts Interpretation Act 1901. Moreover it is a right to have the review undertaken by reference to the power exercised by the primary decision maker under the repealed Act. The second is that a right to seek a review can be characterised as a right for the purposes of s8 even if the decision which is to be reviewed involved the exercise of a discretionary power conferred by the repealed Act. 22. While it may be accepted that this approach to the scope and operation of s8 does not accord with the approach adopted by the Privy Council in Director of Public Works v Ho Po Sang (1961) AC 901: see also Robertson v City of Nunawading [1973] VicRp 81; (1973) VR 819, the view of the majority in Esber is clear. The consequences of this construction of s8 are, in my opinion, unexceptionable. It confers on a person affected by the exercise of a statutory power, a right to have the exercise of the power reviewed and exercised again as it might have been exercised initially. Plainly Parliament may indicate that this consequence will not arise by manifesting, in the amending legislation, a contrary intention displacing the prima facie operation of s8. 40In Repatriation Commission v Keeley [2000] FCA 332 (Full Court, Cooper, Lee, Kiefel JJ) the question was whether the review tribunal wrongly applied a new statutory 'Statement of Principles' governing veterans' entitlements in respect of war-caused death instead of the previous 'Statement of Principles' that applied at the time of the primary administrative decision. The applicant widow conceded that she could not succeed under the new statement of principles. The primary judge in the Federal Court held that the old statement of principles should have been applied having regard to the Acts Interpretation Act as he could find no 'contrary intention' in the amending legislation. The Full Court upheld his ruling. 41While upholding the primary judge and agreeing with her colleagues in this regard, Kiefel J made the following observations in relation to Esber: Esber's Case 79 The appellant's case on the appeal focussed upon the nature and effect of the Statements of Principles in the context of a pension entitlement. I have not found it necessary, in applying s 50 AIA, to consider the nature of Mrs Keeley's rights to review as "rights" which had "accrued" for the purposes of that provision. It appears to have been accepted in Esber that the claimant did not have such a right (see 439, 440), although this is not entirely clear, as I shall explain. The provision in question permitted a person to apply for redemption of periodical payments by a lump sum, but required the decision-maker to be satisfied about certain things. Their Honours held that if one assumed it to be the case that there was no accrued right, nevertheless the appellant had "a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim (440)." 80 If Esber holds that a right of review is not to be regarded as affected by the alteration to a statutory provision relating to something which is the subject of a grant; or that the right of review is to be taken to encapsulate the claim to, or request for, that grant, then Mrs Keeley's case finds additional support. The difficulty, with respect, in the application of Esber is in understanding precisely what it proposes. Moore J in Lee thought that it is to be regarded as authority for the proposition that "...a statutory right to seek a review of a decision made under a repealed Act is a right for the purposes of s 8 of the Acts Interpretation Act" (515). It would appear that his Honour also took Esber necessarily to say that the right was one to a review according to the prior claim to redemption (515-516). No finding of accrued right was however made in Esber, and any relationship between the matter applied for and the review is not explained in detail. Davies J took Esber to mean that the principle that the law as it then exists, and not some earlier law, is applied to a rehearing de novo, as a review is, was overridden by the Acts Interpretation Act provision (495-496). Cooper J in Lee (505) observed that the majority in Esber applied the analogy of a right of appeal to the review, in holding that it was not to be altered, and reiterated their Honours' reference to cases such as Australian Coal and Shale Employees' Federation v Aberfield Mining Co Ltd [1942] HCA 23; (1942) 66 CLR 161 and Colonial Sugar Refining Co v Irving (1905) AC 369. Those decisions were, however, concerned with new statutory provisions which would have altered the right to an appeal itself. The right in question under the AIA provision is of course that which accrued under the provision which is repealed or amended. The statutory change in Esber was to the provision relating to the claim for redemption, not to the right to review. Whether Contrary Intention 81 The essence of the appellant's argument was that one might derive from the provisions of the Act that it was intended to present current scientific and medical knowledge as the requirement of evidence of connexion. One may put to one side, for the present, the question whether this contextual setting for the second SoP was sufficient for an intention to be derived from it, as the repealing provision, as the AIA requires. His Honour the primary Judge considered that the underlying view, that a new law is considered to be an improvement on the old, could be applied to virtually all amending or repealing legislation. Further, the need for consistency of decisions of lay tribunals is equally met by applying the SoP existing at the time of the primary decision. I respectfully agree.

Consideration 42In line with the approach adopted in Esber, consideration needs first to be given to whether anything can be implied from the scheme of the law as a whole and the content of the amending legislation as to whether the intent is that the amended law is to apply to cases that remain before the review tribunal. If that inquiry is inconclusive the question is then whether the applicant has an accrued 'right' within the meaning of s 30(1)(c) which is preserved. 43We agree with the Tribunal below for the reasons it gave that in the present case no guidance can be gleaned from the new regulation as to this issue. Therefore the matter falls to be decided, as the Tribunal did, by reference to the default principle as set out in s 8. 44In this case Mr Cavaleri drew from the decisions to which we have referred the following principle: that a review applicant accrued a right upon lodgement of the application for review to have the case decided by reference either to the law in force as at the time of the lodgement of the application for review or alternatively as at the time of the administrative decision the subject of the review application. (As in this case the law was the same at both times, nothing turns on the distinction.) 45Often in administrative law the new law is one that changes the width and nature of the discretionary considerations to be applied. An administrator, in line with the traditional principles enunciated in the common law authorities, would be expected to apply the new considerations to an application even though the application might have fared better had it been processed and finalised while the old law was in force. The respondent's submission is that Mr Cavaleri's case is no more than a case of this kind. During the time the matter was before the review tribunal (which stands in the shoes of the administrator) the law changed, and his case was, in effect extinguished, as he could not qualify within the narrow classes now allowed for the keeping of crab-eating macaques. 46A recent Victorian case illustrates the distinction drawn in the authorities between cases that involve wide discretionary discretions that may vary with changes in the law, and cases where there is a fixed consideration or factum (as in Esber) which might be seen as determinative: Sisters Wind Farm Pty Ltd v Moyne Shire Council & Ors [2012] VSC 324 (3 August 2012). 47In mid-December 2008 the appellant applied for a permit to build a wind farm, and the relevant authority (the local council) refused the application. On 12 August 2009 the appellant submitted a revised application which was again refused. The appellant applied to the review tribunal, and was unsuccessful. The tribunal's decision was set aside on appeal to the Supreme Court as affected by legal error (failure to apply the correct noise standard), and the matter remitted to the tribunal for reconsideration of the aspect of its decision relating to noise impacts. 48Before the proceeding could be heard again by the tribunal there were significant changes to the local planning scheme (in particular, significant changes adverse to the appellant's case in relation to noise). The appellant argued that it was entitled to have its application determined on the basis of the old law, the planning scheme as in force at the time of the application made in August 2009. The review tribunal held that it should apply the new law. The Supreme Court (Emerton J) dismissed the appeal, agreeing with the tribunal. 49First, Emerton J was satisfied that planning legislation manifested a clear intention that planning disputes are to be resolved by the law as its stands from time to time, and in that way contemplates that instruments such as planning schemes will change from time to time. Secondly, her Honour considered that the jurisdiction invoked by lodgement of the application for review remained unexercised before the tribunal (the set aside order having quashed the first proceedings). It remained necessary for the tribunal to make a 'contemporaneous, de novo' decision (see [58]). She said: 64 In the present case, the remittal order was made on the basis that the Tribunal would have to engage in an integrated process of decision-making and balance a range of factors to reach its determination, just as it did in the first hearing, but in respect of only one issue. The remittal order limits the ambit of the Tribunal's inquiry by requiring it to determine whether a permit should issue having regard to the single issue of noise impacts. However, it is not a question of some issues having been determined as at 27 April 2010 [the date of the original decision of the Tribunal] and those finding being preserved and the determination of some issues remaining outstanding. In law, nothing has yet been determined by the Tribunal, and the Court has limited the issues which the Tribunal can consider on hearing the application de novo in the exercise of its review jurisdiction. 50At [71] ff, Emerton J embarked on a close analysis of the reasoning in Esber. She referred to the caution sounded by Kiefel J in the passage cited earlier in these reasons. After referring to the facts of Esber, she continued: 75 In the passages extracted, the accrued right was described in two ways: (a) The appellant had a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim; and (b) Once the appellant lodged an application to the Commonwealth Tribunal to review the delegate's decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. 76 Assuming that these sentences describe the same right, the right to have the claim correctly decided if the delegate has wrongly refused it is, in effect, a right not to be deprived of the opportunity to have the incorrect decision of the delegate reconsidered and correctly determined by the Tribunal on review. In Esber, the effect of the repeal of the 1971 Act was that Mr Esber lost his entitlement to redeem his pension, and his application for review would have been futile had the new law applied to the review that he had initiated. He would have been deprived altogether of his right to have the decision of the delegate reconsidered and correctly determined by the Tribunal. That is not the case here. The appellant has not lost its right to have the Tribunal reconsider and correctly determine whether a permit should issue (although it has lost the benefit of the 1998 Standard). 77 The appellant contends, however, for a broader entitlement. It finds support for its contentions in the decision of the majority of the Full Court of the Federal Court (Cooper and Moore JJ) in Lee v Secretary, Department of Social Security. Lee involved an application to review a discretionary decision by the Secretary of the Department of Social Security (or the Secretary's delegate) not to waive a social security debt. Justice Cooper applied the language of the High Court in Esber to find that the applicant 'had a right to have [her] claim to [waiver] determined in [her] favour if the delegate had wrongly refused [her] claim'. Justice Moore, after extracting a lengthy passage from Esber, concluded that a statutory right to seek a review of a decision made under a repealed Act was a right for the purposes of s 8 of the Acts Interpretation Act. Moreover, it was 'a right to have the review undertaken by reference to the power exercised by the primary decision maker under the repealed Act'. According to Moore J, s 8 conferred on a person affected by the exercise of a statutory power a right to have the exercise of the power reviewed and exercised again as it might have been exercised initially. 78 The difficulty in applying Esber was alluded to by Kiefel J (sitting as a judge in the Full Court of the Federal Court) in Repatriation Commission v Keeley, where the issue was whether the applicant had a right to have her application for a pension determined according to Statements of Principles that had been replaced. Although her Honour found it unnecessary to consider the nature of the applicant's rights to review as 'rights' which had 'accrued', Kiefel J considered what the High Court meant when it held that Mr Esber had 'a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim'. [The extract set out earlier in these reasons is set out.] 79 I agree, with respect, with her Honour's analysis of the difficulties in applying Esber. In my view, the difficulty is a function of the hiatus between the right which seems to have been identified in Esber as a right to have an incorrect decision reviewed, and the rights (if any) created by or under the legislation or subordinate instrument that has been repealed or amended. Most apparently, it is rights of the latter kind that are protected or preserved by provisions like s 28(2) of the Interpretation of Legislation Act. As Kiefel J observed, Esber did not explain in detail the relationship between the matter applied for (a pension or a permit) and the rights arising on review. This makes it difficult to know whether, and if so how, Esber applies. 80 The right to have the decision of the original decision-maker reconsidered and determined by the Tribunal is not a right that accrued under the Moyne Planning Scheme per se or was lost by reason of the amendment of the Moyne Planning Scheme. On its face, s 28(2) of the Interpretation of Legislation Act requires the right in question to have accrued under the subordinate instrument that has been repealed or amended. The instrument that has been amended is the Moyne Planning Scheme, which contains policies for the development and use of land for wind farms. Neither those policies, nor the P&E Act as a whole, confer any right on a permit applicant to a planning permit. 81 In this regard, I note that the reason Keifel J [sic] in Keeley found it unnecessary to consider the nature of the applicant's rights to review as 'rights' which had 'accrued' was because her Honour held that the protected right was the applicant's right to the pension itself. The Veterans' Entitlements Act 1986 (Cth), recognised a liability for the payment of a pension so long as a veteran's death was war-caused and that the entitlement to a pension did not depend on discretionary factors or levels of satisfaction held by a decision-maker. Justice Kiefel observed that the right was not dissimilar to a cause of action in negligence, with the remedy being compensation by way of a pension. The Statements of Principles operated as a bar or limitation operating on the right to the pension. 82 In the present case, the right asserted is not based on any right to a permit. 83 In Attorney-General (Qld) v Australian Industrial Relations Commission, (2002) 213 CLR 485, the High Court had occasion to consider Esber in the context of applications by unions to the Industrial Relations Commission under the Industrial Relations Act 1988 (Cth) (the '1988 Act') for 'roping in' awards. The applications in question were commenced but not completed before the introduction of s 111AAA of the Workplace Relations Act 1996 (Cth), which provided that the Commission was obliged to cease dealing with industrial disputes in certain circumstances. The unions asserted that they had acquired or accrued the right to have their disputes arbitrated under the 1988 Act. 84 Justices Gaudron, McHugh, Gummow and Hayne commented that the 'right' which had 'accrued' reflected the susceptibility of the Commission to mandamus under s 75(v) of the Constitution. Their Honours then went on to consider the character of industrial awards and the nature of the arbitral function. They continued: The requirement, enforced by mandamus, that the arbitrator hear and determine a matter according to law allowed for changes in the content of that law which founded the duty which attracted the remedy. If before the making of the award prescribing rules of conduct for the future, the law was changed to place additional restraints or conditions upon the exercise of the power to make the award, then the obligation to make a determination according to law was correspondingly modified. In this way, the content of the public duty and correlative right to its discharge was fluid rather than fixed and notions of "accrued" rights in the law as it stood at any particular stage in the arbitral processes had no place. 85 Their Honours distinguished the 'accrued right' in Esber, which was 'concerned with the continuation of an application for review by the Administrative Appeals Tribunal and the determination of Mr Esber's entitlement to redeem his rights to further payments of compensation under the earlier legislation', with the rights said to flow from the duty imposed upon the Commission by the 1988 Act, which allowed for changes in the content of the law that founded the duty. 86 In the present case, even if there was a right to continue proceedings to a conclusion under the statutory regime in force when the application for review was lodged (August 2009) or when the Tribunal first made its (incorrect) decision (April 2010), this statutory regime provided for the responsible authority, and the Tribunal standing in its shoes, to have regard to the Moyne Planning Scheme 'in force from time to time'. The statutory regime contemplates that the content of planning schemes is not fixed, but can be changed in accordance with the procedures set out in the P&E Act. The responsible authority has a duty to administer and enforce the planning scheme, to comply with the planning scheme and to implement the objectives of the planning scheme 'as in force from time to time' under the P&E Act. 87 ... The 'right' to have the Council's decision to refuse the permit reviewed (so as to reach the correct and preferable decision), was a right conferred by s 77 of the P&E Act to have the Tribunal re-make the decision and in so doing, to apply the policies of the Moyne Planning Scheme as in force from time to time. It was not a right to have the Tribunal apply policies in a manner that conflicted with a central tenet of the P&E Act, namely that that Act applies to 'any planning scheme approved under this Act as in force from time to time under this Act'. 88 This follows from a proper analysis of the statutory framework. Section 28(2) of the Interpretation of Legislation Act does not effect any change to this framework. 89 In AIRC, Kirby J emphasised that the starting point for analysis must be the language of the applicable statute (or, in this case, statutes). His Honour held that the court below 'erred in proceeding directly to the suggested application of the Interpretation Act. The question raised by that Act was, and could only ever be, a subsidiary one.' The starting point for the legal task is the construction of the text applicable to the case. 90 Furthermore, in AIRC, Kirby J distinguished Esber based on the nature of the statutory entitlement in issue. Mr Esber 'had an uncontested statutory entitlement to weekly compensation payments. This afforded him the foundation of a legal right for a fairly simple determination of entitlement to a redemption sum and the calculation of the amount.' This was to be contrasted with the award making task of the Commission in the proceedings that the unions sought to maintain on the basis of an Esber-like accrued right. His Honour further held that the entitlements of the unions before the Commission did not represent rights or privileges of the kind contemplated by s 8 of the Acts Interpretation Act because the entitlement to have the Commission make an award was, in accordance with the reasoning of the Privy Council in Director of Public Works v Ho Po Sang, not an investigation in respect of a right, but 'an investigation which is to decide whether some right should or should not be given.' 91 I respectfully agree with the reasoning of Kirby J. A permit applicant has no statutory entitlements affording the foundation for 'a fairly simple determination of entitlement' to a permit. Planning permits are granted or refused having regard to the consideration of overall community benefit. The grant of a planning permit, whether it be by the responsible authority directly or pursuant to the direction of the Tribunal, involves consideration of objections by persons 'who may be affected by the grant of the permit', and the responsible authority must decide to refuse to grant the permit if a relevant referral authority has objected to the grant of the permit. Permits are matters of public record that can be enforced by 'any person' applying to the Tribunal for an enforcement order. This demonstrates the nature of an application for a planning permit under the P&E Act and the character of the task assigned to the responsible authority when considering that application. Once an application has been made, be it to the responsible authority at the outset or to the Tribunal on review, the responsible authority or the Tribunal (as the case may be) is concerned to establish, not whether a right exists, but whether a right should be given. In so doing, it must endeavour to integrate the policies relevant to the issue to be determined and balance any conflicting objectives in favour of net community benefit and sustainable development for the benefit of present and future generations. The overriding consideration is the net community benefit. 92 For these reasons, Esber is distinguishable from the present case. The Tribunal was correct to distinguish Esber and to declare that the Tribunal would apply the Planning Scheme as in force when it made its decision. 93 In reaching this conclusion, I have carefully considered the planning decision that was brought to the Court's attention, the decision of Barker J sitting as President of the State Administrative Tribunal in Western Australian Planning Commission and CPP Pty Ltd. His Honour there confirmed that a review application lodged under the Town Planning and Development Act 1928 (WA) before that Act was repealed should be determined on the basis that the repealed Act continued to apply to the review proceeding, notwithstanding its repeal by the Planning and Development Act 2005 (WA). 94 Section 20(5) of the repealed Act provided that in giving approval, the discretion of the Commission was not fettered by the provisions of any town planning scheme. However, the 2005 Act required the Commission to have regard to the provisions of any local planning scheme and not to give approval that conflicted with any such provisions. Justice Barker had regard to s 37 of the Interpretation Act 1984 (WA), and to Ho Po Sang, Robertson, Esber and Lee. His Honour commented that based on AIRC, the majority decision in Esber had to be approached with caution, in the sense that not every administrative procedure created by an earlier law will be treated as having created in the applicant a substantive right to have a matter determined on the basis of that procedure as it applied before the change. However, although Mr Esber's existing entitlement to redeem his rights to further payments of compensation helped to explain the decision in Esber, nothing in AIRC expressly disapproved the majority finding in Esber that where a person commences an administrative review proceeding before the law is changed, that proceeding should be determined according to the law as it stood prior to the repeal. 95 Justice Barker considered there was a strong case to be made in support of the view that no right was acquired prior to the repeal of the repealed Act, as the owner of land had no existing right to subdivide and could only do so if a statutory prohibition was removed by a relevant authority. However, his Honour concluded that Esber stood as high authority for the contrary view and he could see no persuasive ground to distinguish Esber. As a result, Barker J felt compelled to follow Esber and to make orders to confirm that the repealed Act remained the applicable law. 96 Whether or not Barker J has correctly analysed the effect of the repeal of the 1928 Act, the circumstances in WA Planning Commission can be distinguished. There, the law that was repealed and replaced was a law governing the exercise of the power to grant subdivision approval which provided that the decision maker's discretion was unfettered by town planning schemes. The new law fettered the discretion by requiring the decision maker to have regard to relevant town planning schemes. There has been no equivalent amendment to the P&E Act. It continues to provide for the application (and amendment) of the Moyne Planning Scheme in the way that it did at the time of the Tribunal's first decision. 97 The decision in WA Planning Commission does not cause me to change my view that the appellant has no accrued right to have the Tribunal on remitter apply the Moyne Planning Scheme in its unamended form. 98 The Tribunal's declaration was correctly made. The appellant had no accrued no right to have the proceeding determined in accordance with the Moyne Planning Scheme as in force on 12 August 2009 when it lodged its application for review. Moreover, the appellant had accrued no right to have the proceeding determined in accordance with the Moyne Planning Scheme as in force on 27 April 2010 by reason of the Tribunal's error and the making of the remittal order. The remittal order did not alter the jurisdiction of the Tribunal to carry out the review as a de novo hearing having regard to the Moyne Planning Scheme as in force at the time of its decision. 99 This result may seem harsh for the appellant, which has been deprived of the opportunity to have its application for a planning permit determined by reference to the more lenient 1998 Standard through an error by the Tribunal in its first decision that was apparently brought about by incorrect submissions as to the applicable Standard made by the Council. However, the result is a product of the statutory framework for the review of planning decisions by the Tribunal or, as the Council puts it, the 'building blocks' of planning law, the Tribunal's review jurisdiction and judicial review of administrative action in Victoria. 51We have set out Emerton J's reasons at some length. We have included her Honour's comments on the WA Planning Commission case, as it was also relied on in argument before us by counsel for Mr Cavaleri. 52It can be seen that there is considerable controversy in the leading authorities over the proper approach to be taken by a review tribunal in relation to a case where the law has changed between the time of the making of the original administrative decision and the matter being heard and determined by the review tribunal. 53In our view, a number of the observations made by Emerton J are applicable to the present dispute. 54The regulation of the keeping of non-indigenous animals is a complex subject. The law makes distinctions between categories of non-indigenous animals having regard to a variety of factors, the most important being - the risk they present to the human population of the country, the risk they present to the indigenous animal population if they escape, and animal welfare considerations linked to their happiness and ability to adapt to a foreign abode. This is necessarily, therefore, a fluid area of regulation. It would be odd if the administrator (or in the administrator's shoes, the review tribunal) could not apply the law as it applies from time to time. While those words ('from time to time') are not used in the legislation under notice in these proceedings, it can we think be reasonably inferred that the law is intended to be applied in that way. 55However we consider that clause 35(3) insofar as it required the administrator to apply to this case the new clause 4(1)(d) did infringe an accrued right of Mr Cavaleri. The provision by excluding private applicants from the permitted classes of applicants meant that Mr Cavaleri was now disqualified from having a discretionary assessment made of his circumstances. His application for review was rendered futile. 56In our view, Esber stands at least for the proposition that the new law, unless it evinces a clear contrary intent, cannot deprive a subsisting review applicant of their right to have the application heard and determined. In our view, sub-clause (3) of clause 35 read in conjunction with clause 4(1)(d) had that effect. To that extent we consider that clause 4(1)(d) cannot be applied to this case, as it deprives Mr Cavaleri of that accrued right. In our view no legislative intent was manifested to deprive a subsisting review applicant of the right to have the application heard and determined. 57To that extent we differ from the reasons of the Tribunal below. We consider that the matter should be remitted to the Tribunal below to reconsider the appellant's review application having regard to the 2012 Regulation, save and except for the provisions of clause 35(3) and 4(1)(d). 58We will deal briefly with the other points raised by counsel for Mr Cavaleri. In our view, the restriction on who may be permitted to keep an animal in the definition of an animal was not ultra vires. The general principle, we accept, is as stated in Shanahan v Scott (1957) 96 CLR 245 at 250. A regulation-making power 'will not support attempts to widen the purposes of the Act, to add new or different means of carrying out or to depart from or vary the plan which the legislature has adopted....': approved, Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355, 380. But the regulations here are supported by a general regulation power in s 29 which is of a standard type employing wide and plenary language. We are aware of no authority for the proposition that such a power can not be used to impose a restriction on classes of applicants or to prevent that power taking the form of coupling it with a definition going to another subject matter, here the definition of a category of affected animal. Indeed, there may be a presumption of validity in such cases: see Gibson v Mitchell (1928) 41 CLR 275. 59Finally Mr Cavaleri submitted that the Tribunal failed to exercise its jurisdiction in not considering the case on the merits. We have held that Mr Cavaleri did have an accrued right to have his application for review entertained, and the effect of new clause 4(1)(d) was to deprive him of that right. It follows therefore that the Tribunal failed properly to exercise its jurisdiction. While it did express a view in the alternative on the merits, it did so in very brief terms. In giving decisive weight to clauses 4 and 35(3) the tribunal below may have assumed the other relevant matters in the applicant's favour, on the basis that even putting his case at its highest, the evidence concerning the risk of macaques establishing a feral population was reason in itself for not exercising the discretion in his favour. For that reason the tribunal may have thought it unnecessary to set out express factual findings on the other criteria in s 15 and cl 35. We think that on reconsideration if would be desirable, in the interests of producing a comprehensive set of reasons, to consider expressly the full range of factors that are relevant to the present case. 60In our view, the appropriate order is one setting aside the decision of the Tribunal below. In the event of the appeal being upheld, there was discussion at hearing as to whether the appropriate order ought be one of remittal or the Appeal Panel should give leave to extend the appeal to the merits, and dispose of the case. 61In our view, the preferable course is to remit the review application to the Tribunal for resolution, applying the 2012 Regulation except as indicated in these reasons.

Order

1. Appeal allowed.
2. Review application remitted to the Tribunal to be heard and determined in accordance with these reasons. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 April 2014