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.