THE COURT:
1 There is before the Court an appeal from a judgment of a judge of this Court (French J) dismissing an application lodged on 30 June 2000, seeking an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the JRA").
2 According to the application for an order of review, the applicants were "Wilfred Hicks and others on behalf of the Wong-goo-tt-oo native title claimant group". That description was also used in the notice of appeal to identify those persons who are the appellants on the present appeal. The identity of each of those "others" is not apparent to us from the appeal papers, but nothing seems to turn on their identities for present purposes. It will therefore generally be sufficient for us in these reasons for judgment to treat Mr Hicks as the sole applicant before the primary judge and as the sole appellant on the appeal.
3 The respondent to the application for an order of review was the Aboriginal Legal Service of Western Australia (Inc) ("the ALS") and it is obviously the respondent to the present appeal. According to cl 2 of its constitution, the ALS is an association incorporated pursuant to the Associations Incorporation Act 1895 (WA).
4 Mr Hicks claimed, in effect, in his application for an order of review that the ALS had a duty to make a decision under par 202(4)(a) of the Native Title Act 1993 (Cth) ("the Act"), but had unreasonably delayed doing so, thus enlivening the ground of review provided by subs 7(1) of the JRA.
5 It is not easy to determine from the appeal papers the precise nature of the decision under par 202(4)(a) of the Act which it was claimed before the primary judge that the ALS had, on 30 June 2000, a duty to make, but had, by then, unreasonably delayed making. However, in an earlier proceeding in this Court in which the ALS was also the respondent, and Mr Hicks the sole applicant, Carr J, on 28 April 2000, set aside a purported decision made by the ALS on 16 September 1999 and remitted "the matter" to the ALS for further consideration: see Hicks v Aboriginal Legal Service of Western Australia (Inc) (2000) 98 FCR 435 at [43]. That purported decision of 16 September 1999 had been said by the decision-maker to be one in respect of an application which had been made on 9 September 1999 that the ALS make a grant of money to the Wong-goo-tt-oo native title claim group ("the group") to permit it to obtain legal representation for the purpose of an application which it then had pending in this Court for a native title determination in respect of land in the West Pilbara area of Western Australia. It will be sufficient for present purposes to treat the decision under par 202(4)(a) of the Act, which it was claimed before the primary judge that the ALS had, on 30 June 2000, a duty to make, but had, by then, unreasonably delayed making, as being a decision on the application of 9 September 1999.
6 It is convenient to mention immediately that the Act provides, in Pt 11 thereof, for "representative Aboriginal/Torres Strait Islander bodies" ("representative bodies").
7 As the Act was originally enacted, the acquisition by a body of representative body status depended on the making by the Minister of a determination that that body had that status for a specified area: see subs 202(1) of the Act.
8 At the time of the application to the ALS and of its purported decision thereon, the ALS was the subject of such a determination for (relevantly) the West Pilbara area, such determination having been made on 27 December 1993, to take effect on 1 January 1994: see Commonwealth of Australia Gazette No S 402, 30 December 1993, pp 9-12.
9 Also at the time of the application to the ALS and of its purported decision thereon, par 202(4)(a) of the Act provided that a "representative … body determined under this section may … facilitate the … making of applications, by … groups from among Aboriginal peoples …, for determinations of native title".
10 Such facilitation was described in par 202(3)(c) and subs 203(3) of the Act as a "function" of such a body. Perhaps surprisingly, one found in the Act no express conferral on such a body of a power to perform such a function: for a general discussion of the distinction between functions and powers, see Edelsten v Health Insurance Commission (1990) 27 FCR 56 at 62-63 (Northrop and Lockhart JJ). However, it seems right to treat a representative body determined under subs 202(1) of the Act as having had the power, as well as the function, of facilitating the making of applications, by groups from among Aboriginal peoples, for determinations of native title. Such treatment would be right either because, in using the word "functions" in par 202(3)(c) and subs 203(3) of the Act, the Parliament was not using it in its primary sense, but was using it in the sense in which it included powers, or because there were impliedly conferred by the Act on a representative body determined under subs 202(1) of the Act the powers necessary to perform the functions expressly conferred on it by subs 202(4) of the Act: for an example of the use of the first approach just mentioned, see Grofam Pty Limited v Australia and New Zealand Banking Group Ltd (1993) 45 FCR 445 at 450 (Northrop, Ryan and Beazley JJ) and for an example of the use of the second approach just mentioned, see Coopers & Lybrand v Australian Securities Commission (1994) 53 FCR 599 at 605 (von Doussa J).
11 Although, at the time of the application to the ALS and of its purported decision thereon, the Act did not provide in terms either for the making to a representative body determined under subs 202(1) of the Act of applications for the performance by it of its facilitating power under par 202(4)(a) of the Act or for a duty in such a representative body to decide whether to grant such applications if made, the Act, on its proper construction, impliedly required a representative body to decide whether to grant any such application, if made to it: see, for example, Murphyores Incorporated Pty Ltd v The Commonwealth (1976) 136 CLR 1 at 17-18 (Mason J; Gibbs and Jacobs JJ agreeing (at 9 and 26 respectively)); and Ansett Transport Industries (Operations) Pty Ltd v The Commonwealth (1977) 139 CLR 54 at 82 (Mason J). That there existed such a duty in a representative body to decide whether to grant any such application, if made to it, was implicitly recognised by Carr J, who, in the proceeding before him to which we have already referred, having set aside the decision purportedly made by the ALS on 16 September 1999, in effect, then ordered the ALS to make a lawful decision on the application which had been made for the benefit of the group.
12 Further, in the earlier proceeding before Carr J, his Honour held that the power of facilitation conferred by par 202(4)(a) of the Act included the power of granting money to an Aboriginal group to permit it to obtain legal representation in a pending application for a native title determination: see at [17]-[18]. The ALS does not appear to have sought before the primary judge to revisit that holding, nor did it seek to do so on the present appeal. We will therefore proceed in these reasons for judgment on the same basis as did Carr J.
13 As to the source of any such money which might be granted by a representative body determined under subs 202(1) of the Act in the performance of its power of facilitation conferred by par 202(4)(a) of the Act, at the time of the application to the ALS and of its purported decision thereon, subs 203(1) of the Act provided that a representative body might apply to the Aboriginal and Torres Strait Islander Commission ("ATSIC") for assistance under s 203 of the Act and subs 203(3) of the Act provided that, if application was made to ATSIC and ATSIC was satisfied in all the circumstances that it was reasonable to do so, ATSIC could authorise the provision of financial assistance, from money appropriated for ATSIC's purposes, to enable that representative body to perform its functions under subs 202(4) of the Act.
14 It is common ground between the parties to the appeal that the ALS had not, either by 30 June 2000 or, indeed, by the time of the hearing of the proceeding before the primary judge on 21 September 2000, made a decision on the application remitted to it by Carr J on 28 April 2000 for further consideration. However, the submission of the ALS before the primary judge was that any duty which it had had as of 30 June 2000 to make a decision on the application had ceased to exist immediately after 30 June 2000, so that Mr Hicks's application for an order of review must necessarily fail.
15 It may be noted that by the time of the hearing of the proceeding before the primary judge, it appears that the group had already obtained legal representation and had had the benefit of such representation in connection with its application for a native title determination, so that any decision made thereafter by the ALS to grant money to the group would have been for the purpose of paying costs already incurred by the group, rather than for the purpose of paying costs to be incurred by it. However, it appears that no point about that distinction was sought to be taken by the ALS before the primary judge; nor was it sought to be taken on the appeal.
16 The submission of the ALS before the primary judge to which we have referred in [14] above was accepted by the primary judge in reasons for judgment which he gave on 13 October 2000. To explain why the primary judge accepted that submission, it is necessary first to turn to certain provisions of the Native Title Amendment Act 1998 (Cth) ("the amending Act").
17 Schedule 3 to the amending Act contained amendments to Pt 11 of the Act. Schedule 3 to the amending Act consisted of two Parts. Part 1 was headed "Initial amendments", while Pt 2 was headed "Later amendments". Subsection 2(2) of the amending Act provided for the commencement of Sch 3, Pt 1 to the amending Act on a day to be fixed by proclamation. On 11 August 1998, a proclamation was made, fixing 30 October 1998 as the day on which Sch 3, Pt 1 to the amending Act was to commence: see Commonwealth of Australia Gazette No S 428, 28 August 1998. Similarly, par 2(4)(b) of the amending Act provided for the commencement of Sch 3, Pt 2 to the amending Act on a day to be fixed by proclamation. On 13 October 1999, a proclamation was made, fixing 1 July 2000 as the day on which Sch 3, Pt 2 to the amending Act was to commence: see par 2(4)(b) of the amending Act and Commonwealth of Australia Gazette No S 484, 14 October 1999.
18 We have already mentioned that under the Act, as originally enacted, the acquisition by a body of representative body status had depended on the making by the Minister of a determination under subs 202(1) of the Act that that body had that status for a specified area. One of the changes introduced by Sch 3, Pt 1 to the amending Act was to create a new method for the acquisition by bodies of representative body status for a specified area, namely, Ministerial recognition: see, in particular, Sch 3, Pt 1, item 11 to the amending Act, adding to Pt 11 of the Act a new Div 2, headed "Recognition of representative Aboriginal/Torres Strait Islander bodies".
19 The period beginning on the day on which Sch 3, Pt 1 to the amending Act commenced (30 October 1998) and ending immediately before Sch 3, Pt 2 to the amending Act commenced (1 July 2000), was defined in s 201A of the Act as the "transition period". During that transition period and pursuant to Pt 11, Div 2 of the Act, the Minister was to perform a "recognition" function with respect to applicants for representative body status, with the intent that, by the end of that transition period, there would exist, throughout Australia, representative bodies recognised under subs 203AD(1) of the Act. However, even if a body were recognised as a representative body before the end of the transition period, such recognition could not take effect until 1 July 2000 at the earliest: see subs 203AD(2) of the Act.
20 Representative bodies which had been determined under subs 202(1) of the Act (or "original" representative bodies, as they were called in the heading to Pt 11, Div 1A of the Act) could seek, during the transition period, to become representative bodies recognised under subs 203AD(1) of the Act, but, if such attempt failed, then such original representative bodies ceased prima facie to have that status on 1 July 2000.
21 That prima facie effect was achieved in substance by Sch 3, Pt 2, item 25 to the amending Act, which, when it commenced on 1 July 2000, repealed Pt 11, Div 1A of the Act. That Division had included ss 202 and 203 of the Act, so that, on 1 July 2000, not only was there no longer any possibility of bodies acquiring the status of representative body by determination under subs 202(1), but bodies which had earlier been determined as representative bodies no longer had either functions under subs 202(4), or the ability to make applications to ATSIC under subs 203(1), and ATSIC no longer had power to authorise the provision of financial assistance to such bodies under subs 203(3).
22 We should also make reference now to the new Divs 3 and 4 of Pt 11, headed respectively "Functions and powers of representative bodies" and "Finance", which Divisions were added to the Act by Sch 3, Pt 2, item 31 to the amending Act. Those two new Divisions dealt respectively with, among other things, the same subject matters as had the former subs 202(4) and the former subss 203(1) and (3), but applied only to representative bodies recognised under subs 203AD(1) of the Act and not to representative bodies which had been determined under the former subs 202(1). That was because, by Sch 3, Pt 2, item 37 to the amending Act, the definition of "representative Aboriginal/Torres Strait Islander body" in s 253 of the Act no longer included a body which had been the subject of a determination under subs 202(1) of the Act. As the note to Sch 3, Pt 2, item 37 to the amending Act said, "This amendment will have the effect that, when this Part commences, representative bodies under subsection 202(1) will no longer be representative bodies".
23 In passing, we note that one particular provision of the new Div 3 of Pt 11 of the Act, subs 203BK(1), provides that a representative body has power to do all things necessary or convenient to be done for or in connection with the performance of its functions. The subsection thus makes explicit, for representative bodies recognised under subs 203AD(1) of the Act, that which, as we have already mentioned, had not been made explicit for representative bodies determined under the former subs 202(1) of the Act.
24 During the transition period, the ALS did seek to become a representative body recognised under subs 203AD(1) of the Act for (relevantly) the West Pilbara area, but it did so unsuccessfully. Instead, another body, the Yamatji Barna Baba Maaja Aboriginal Corporation, was, on 30 June 2000, recognised under subs 203AD(1) of the Act as the representative body for (relevantly) the West Pilbara area, such recognition to take effect on 1 July 2000: see Commonwealth of Australia Gazette No GN 37, 20 Sept 2000, pp 2599-62.
25 In his reasons for judgment, the primary judge, having discussed the legislative scheme to which we have referred above, pointed out that the amending Act contained no transitional provision which authorised the ALS to continue after 30 June 2000 to carry out any further functions under the Act concerning pending native title proceedings in respect of (relevantly) the West Pilbara area. His Honour then expressed the view that,
"… the powers to grant relief conferred by that Act [that is, the JRA] can only be invoked prospectively if the ALS has a continuing statutory function under a law of the Commonwealth, whether by way of transitional provision or otherwise to consider the provision of representational assistance to the applicants. It is plain that it does not. It has no continuing existence as a representative body under the Act, no authority to provide assistance pursuant to the Act and no standing to apply for and receive grants from ATSIC for the purposes of the Act. There is no argument that the Acts Interpretation Act 1901 [(Cth)] is of any assistance in this case.
…there is in my opinion no useful relief that could now be granted."
26 Having expressed that view, the primary judge then turned to what, so far as appears from his Honour's reasons for judgment, had been the only argument advanced before him by Mr Hicks in support of his application for an order of review:
"The applicants contend that the order of Carr J applies to the ALS as a body corporate under Western Australian law. As a body corporate it had the functions of a representative body conferred upon it under s 202 of the Native Title Act. Notwithstanding the absence of those functions since 1 July 2000 it is said that the ALS can still make the decision ordered by Carr J, namely to refuse or accept the request for funding assistance. It is submitted that if a decision were made to accept the request then an application for a grant could be made by the ALS to ATSIC under s 14 of the Aboriginal and Torres Strait Islander Commission Act [1989 (Cth)] (ATSIC Act). Nothing in the Native Title Act prevents ALS from making such a decision. It would lie then with ATSIC to decide whether funding assistance for the applicants was to be made by the body recognised as the present representative body for the [relevant area] or directly to the applicants under s 14 of the ATSIC Act. The ultimate decision, it was said, lies as it always has with ATSIC as the source of funding."
(Subsection 14(1) of the ATSIC Act relevantly provides that ATSIC may make a grant of money to an individual or a body corporate for the purpose of furthering the social, economic or cultural development of Aboriginal persons.)
27 The primary judge dealt with Mr Hicks's contention as follows:
"With all due respect to those arguments, they overlook the difficulty that there is no decision that this Court could now direct the ALS to take in respect of the applicants' application under the Native Title Act".
28 After thus disposing of Mr Hicks's argument, the primary judge concluded by saying:
"The applicants must redirect their application to the representative body that has been recognised for the [relevant] area, namely the Yamatji Barna Baba Maaja Aboriginal Corporation"
and then dismissed, with costs, the application for an order of review.
29 It will be recalled that, in his reasons for judgment, the primary judge had stated, "There is no argument that the Acts Interpretation Act 1901 is of any assistance in this case". The obvious inference from such a statement is that Mr Hicks had not sought before the primary judge to rely on that statute in support of his application for an order of review. Before this Court, however, the primary focus of Mr Hicks's submissions was on that very statute and, in particular, on s 8 thereof. It was submitted that, by reason of that provision, the ALS remained under a duty to make a decision on the application to it for a grant of money to the group, despite those changes to the Act which had commenced on 1 July 2000.
30 The relevant portions of s 8 of the Acts Interpretation Act are as follows:
"8. Where an Act repeals … in part a former Act, then unless the contrary intention appears the repeal shall not:
…
(c) affect any right [or] privilege … acquired [or] accrued … under any Act so repealed; or
…
(e) affect any investigation legal proceeding or remedy in respect of any such right [or] privilege … as aforesaid;
and any such investigation legal proceeding or remedy may be instituted continued or enforced … as if the repealing Act had not been passed.")
31 When confronted with the submission to which we refer in [30], this Court enquired of Mr Hicks whether he was seeking to argue on the appeal an issue which he had not argued before the primary judge, in which case a question would arise whether it was in the interests of justice to permit him to do so.
32 In order to make clearer the answer to its enquiry which this Court received from Mr Hicks, we should mention that, as well as having on foot before the primary judge the proceeding out of which the present appeal arises, Mr Hicks also had on foot before the primary judge concurrently a judicial review proceeding against ATSIC. In that proceeding, Mr Hicks was challenging the rejection by ATSIC of an application made to it for a grant of money for the benefit of the same group and for the same purpose as the grant of money which had been sought from the ALS. Mr Hicks's judicial review proceeding against ATSIC was heard by the primary judge on 17 August 2000, while Mr Hicks's judicial review proceeding against the ALS was heard by the primary judge on, as we have already mentioned, 21 September 2000. A different legal representative appeared for the ALS before the primary judge than had earlier appeared for ATSIC before the primary judge.
33 This Court was informed by Mr Hicks in response to its enquiry that, "the submissions relating to section 8 … were made extensively in the ATSIC appeal [sic] and were really only mentioned in the review dealing with the ALS application".
34 It thus appears that, in the judicial review proceeding before the primary judge out of which the present appeal arises, Mr Hicks sought to incorporate by reference certain submissions which he had made in an earlier proceeding against a different respondent, the ALS not being represented by the same legal representative as the one who had earlier appeared for that different respondent.
35 It appears to us that the manner in which Mr Hicks made his submissions before the primary judge in the proceeding out of which the present appeal arises regarding the effect of s 8 of the Acts Interpretation Act was calculated to cause confusion on the part of the primary judge as to whether Mr Hicks was in truth relying in the proceeding on s 8. Further, it appears to us that the manner of making those submissions may have been unfair to the ALS, depending on the extent to which it had been made aware of the content of the submissions made before the primary judge in the proceeding involving ATSIC.
36 At the same time, however, before this Court, the ALS neither suggested unfairness to it in the proceeding before the primary judge by reason of the manner in which the s 8 submissions had been made nor opposed the attempt by Mr Hicks to make submissions based on s 8. In those circumstances, we would, if we considered it necessary to determine the s 8 point in order to resolve the present appeal, determine that point.
37 However, for reasons which appear below, we do not consider it necessary to determine the s 8 point in order to resolve the present appeal.
38 A court will not grant a discretionary remedy such as a mandatory order of review under the JRA if to do so would be futile. As was said by Latham CJ, Rich, Dixon, McTiernan and Webb JJ with reference to the writ of mandamus in a well-known passage in The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400, "… the writ may not be granted … if no useful result could ensue". In a case in which a decision-maker has a duty to make a decision whether to grant money to a person, but would, if the decision-maker decided to grant money to the person, be unable to implement that decision by granting the money, it would not be a sound exercise of a court's discretion to order the decision-maker to decide whether to make such a grant: for an analogous case in which lack of funds to comply with a mandatory order led to the order not being made, see: Re the Bristol and North Somerset Railway Co (1877) 3 QBD 10 (Div Ct: Cockburn CJ and Mellor J). It was that point to which the primary judge was, in our opinion, referring when he stated in his reasons for judgment, "[T]here is in my opinion no useful relief that could now be granted" (against the ALS).
39 Mr Hicks was obviously conscious of the difficulty which confronted him in that respect because, in his written outline of submissions on the appeal, before outlining his submissions regarding s 8 of the Acts Interpretation Act, he focused on the view which had been expressed by the primary judge in his reasons for judgment that the ALS "has … no standing to apply for and receive grants from ATSIC" and identified that expression of view as an error made by the primary judge. According to Mr Hicks, if the ALS were now to be ordered to make a decision whether to grant money to the group and decided to grant such money, it could implement that decision by obtaining the necessary money from ATSIC pursuant to s 14 of the ATSIC Act. (It will be recalled that the primary judge recorded in his reasons for judgment the making before him by Mr Hicks of a somewhat similar argument regarding s 14 of the ATSIC Act.)
40 We note that it has not been suggested at any stage either that the ALS presently has on hand funds from ATSIC available for the purpose of granting to the group, or that the ALS has on foot an undetermined application to ATSIC, made before 1 July 2000 under subs 203(1) of the Act, which application ATSIC remains under a duty to determine and which application, when determined, could result in the grant of money by ATSIC to the ALS to enable the latter to perform its functions under subs 202(4) of the Act.
41 We do not accept that, if the ALS were now to make a decision favourable to the group on the application to the ALS to exercise its power under par 202(4)(a) of the Act (assuming that the ALS continues, by reason of s 8 of the Acts Interpretation Act, to have the power, and the duty, to make such a decision), the ALS could implement that decision by obtaining the necessary money from ATSIC under s 14 of the ATSIC Act.
42 It appears to us appropriate, when explaining our reasons for that conclusion, to begin by focusing on the issue whether s 14 of the ATSIC Act could have been relied on by ATSIC before 1 July 2000 to make a grant of money to a representative body determined under subs 202(1) of the Act to enable that representative body to perform its functions under subs 202(4) of the Act.
43 Section 14 of the ATSIC Act commenced on 5 March 1990: see Commonwealth of Australia Gazette No S 48, 23 February 1990. It is obvious that s 14 could not have been used at that time or for almost four years thereafter to make grants of money to representative bodies, since they did not then exist as a statutory concept. When, however, Pt 11 of the Act commenced on 1 January 1994 (see Commonwealth of Australia Gazette No S 402, 30 December 1993, p 3), a question arose whether s 14 of the ATSIC Act could now be used to make grants of money to representative bodies to enable them to perform their functions under subs 202(4) of the Act, numerous representative bodies having been determined as of that date (including the ALS, as we have already mentioned): see the same Commonwealth of Australia Gazette at pp 9-12.
44 We infer from the terms of s 203 of the Act and of s 14 of the ATSIC Act that the latter provision could not be so used.
45 First, subs 203(1) of the Act provided that a representative body might apply to ATSIC for assistance under s 203 of the Act. However, no equivalent provision was made, whether in the Act or in the ATSIC Act, that a body in its capacity of a representative body determined under subs 202(1) of the Act might apply to ATSIC for a grant of money under s 14 of the ATSIC Act. The omission appears to us to be consistent only with a legislative intention that a body, in its capacity of a representative body determined under subs 202(1) of the Act, might not apply to ATSIC for a grant of money under s 14 of the ATSIC Act in order to enable it to perform its functions under subs 202(4) of the Act.
46 Secondly, subs 203(3) of the Act expressly imposed limitations on ATSIC's ability to authorise the provision of financial assistance thereunder to enable a representative body to perform its functions under subs 202(4) of the Act. Such authorisation could occur only on application (a limitation not expressed in s 14 of the ATSIC Act), and could occur only if ATSIC was satisfied in all the circumstances that the authorisation was reasonable (another limitation not expressed in s 14 of the ATSIC Act). The expression in subs 203 (3) of the Act of those limitations on ATSIC's ability appears to us to be consistent only with a legislative intention that subs 203(3) of the Act was to be the sole source of power in ATSIC to authorise the provision of financial assistance to an applying representative body determined under subs 202(1) of the Act to enable it to perform its functions under subs 202(4) of the Act.
47 In the circumstances which we have just mentioned, it would be contrary to usual interpretative principles to construe s 14 of the ATSIC Act as being capable of being used by ATSIC between 1 January 1994 and 30 June 2000 to make a grant of money to a representative body determined under subs 202(1) of the Act to enable that representative body to perform its functions under subs 202(4) of the Act.
48 That being the case, the question next arises whether Mr Hicks's situation is improved in that respect by the repeal on 1 July 2000 of s 203 of the Act.
49 Mr Hicks's case is that the ALS has a duty to make a decision on the application to it notwithstanding the repeal of ss 202 and 203 of the Act, only because, by reason of s 8 of the Acts Interpretation Act, the ALS remains a representative body pro tem. That being so, one must ask oneself why s 14 of the ATSIC Act should, since 1 July 2000, be construed as conferring on ATSIC a power to grant money to a body in its capacity of a representative body pro tem to enable that representative body to perform its functions under subs 202(4) of the Act when s 14 of the ATSIC Act, in the period between 1 January 1994 and 30 June 2000, conferred on ATSIC no power to grant money to a body which was then a representative body to enable it to perform its functions under subs 202(4) of the Act. No good reason appears to us why s 14 should be so construed.
50 It is for the above reasons that we consider both that the primary judge did not err in concluding that the grant to Mr Hicks of a remedy under the JRA would be futile, and that the present appeal should be dismissed.
51 Although, as we have already mentioned above, we consider it unnecessary, for the reasons which we have given, to determine the correctness of Mr Hicks's submissions before this Court as to the effect of s 8 of the Acts Interpretation Act, we will nevertheless say something about one aspect of those submissions before concluding these reasons for judgment.
52 Before this Court, Mr Hicks did not dispute that par 202(4)(a) of the Act had conferred on a representative body determined under subs 202(1) of the Act a discretionary power. However, the fact that the application to the ALS, for the benefit of the group, had sought the favourable exercise by the ALS of a discretionary power, was submitted by Mr Hicks to constitute no impediment to the operation in the group's favour of s 8 of the Acts Interpretation Act, so far as that application was concerned. The matter was put in his written outline of submissions as follows:
"A right to the exercise of a discretion may be an accrued right; Ger[r]ard v Mayne Nickless [Ltd] (1996) 135 ALR 494 (IRCA: Wilcox CJ and Ryan and Marshall JJ)], and see JR Exports Pty Ltd v Australian Trade Commission [(1987) 14 FCR 161 (Fox, Sheppard and Beaumont JJ)]."
The reference in those written submissions, which were not elaborated on orally, to "an accrued right" was a reference to that notion as appearing in par 8(c) of the Acts Interpretation Act, which provision we have already set out above.
53 The cases relied on by Mr Hicks do not support the submission made.
54 To deal first with the older of the two cases, the JR Exports case, in the reasons of the majority of the Full Court, Sheppard J stated (at 165) that s 8 of the Acts Interpretation Act was irrelevant in the circumstances of the case, and Fox J, although also stating (at 163) that s 8 was irrelevant, further stated that, in view of the arguments which had been made, he would explore the matter whether the appellant had had an "accrued right" within the meaning of par 8(c) at the time of the relevant legislative repeal. Fox J ultimately expressed the view (at 165) that the appellant did not have such an accrued right at the relevant time. In reaching that conclusion, his Honour referred to the fact (at 163) that an accrued right within the meaning of the provision was "something in the nature of a cause of action". He referred with approval (at 164) to the decision of the Privy Council in Director of Public Works v Ho Po Sang [1961] AC 901 (Lord Denning, Lord Morris of Borth-y-Gest and the Rt Hon LMD De Silva) and quoted the statement which had appeared at 922 in the report of that case that "there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given. Upon a repeal the former is preserved by the Interpretation Act. The latter is not." He then referred with approval (at 164-165) to a decision of the Victorian Full Court (Winneke CJ, Gowans and Starke JJ) which had followed Ho, namely, Robertson v City of Nunawading [1973] VR 819. His Honour quoted the statement which had appeared at 826 in the report of that case that "the mere taking of procedural steps under a statute in the expectation of achieving a benefit from an administrative authority does not create a right to the continuance of the proceedings after the repeal of the statute".
55 Turning next to the Gerrard case, that was a case in which s 8 of the Acts Interpretation Act was held to be applicable, there being an "accrued right" in existence before the relevant legislative repeal had occurred. However, the approach of the Court to the question echoed that of Fox J in JR Exports, whose reference to an accrued right being "something in the nature of a cause of action" was quoted with approval. Also referred to with approval was the Privy Council's decision in Ho, it being held that the situation confronting the Court in the case before it fell into the first of the two categories mentioned in Ho, rather than the second.
56 Thus, neither the JR Exports case nor the Gerrard case supports the proposition for which they were relied on by Mr Hicks.
57 After the conclusion of oral argument on the appeal, Mr Hicks referred the Court to Re Minister for Immigration & Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 (McHugh J), a decision which Mr Hicks considered provided support for his submissions. However, on the question whether an application for the exercise of a discretionary power is saved by s 8 of the Acts Interpretation Act following a legislative repeal, that decision appears to us to be adverse to the submission put by Mr Hicks. The relevant portion of the reasons for judgment for present purposes is at [26]-[29], in which McHugh J emphasised that the disappointed visa applicant who was seeking judicial review before him had not, before the relevant legislative repeal, been seeking from the Minister the exercise in his favour of a discretion, but had rather a right to the grant by the Minister of a visa if certain matters were established to the satisfaction of the Minister. It appears to us that it was the absence of a discretion in the Minister in relation to the visa applicant's application which persuaded McHugh J that s 50, a section of the Acts Interpretation Act equivalent to s 8, but applicable instead to delegated legislation, operated in the case before the Court.
58 On the question whether s 8 of the Acts Interpretation Act applies to applications for the exercise of a discretionary power following a legislative repeal, in Durham Holdings Pty Ltd v New South Wales (1999) 47 NSWLR 340 (Spigelman CJ, Handley and Giles JJA), the Court of Appeal was concerned with the operation of the New South Wales equivalent to s 8 in respect of an application which had been made, before a legislative repeal, to an administrative authority. Spigelman CJ (with whom the other members of the Court agreed) held (at 350, [27]) that the relevant function of the administrative authority was not a discretionary one. Having so held, his Honour then continued (at 351, [28]),
"Accordingly, it is not necessary to consider whether the High Court in Esber [v Commonwealth (1992) 174 CLR 430] intended to over-rule the reasoning in earlier judgments, to which the High Court otherwise referred with approval, that indicated that there was a crucial distinction between discretionary and non-discretionary decisions: see NSW Aboriginal Lands Council v Minister [Administering the Crown Lands (Consolidation) Act and the Western Lands Act (The Winbar Claim [No 3]) (1988) 14 NSWLR 685] (at 694, 696); Director of Public Works v Ho Po Sang [1961] AC 901 at 920, 921-922; Robertson v City of Nunawading [1973] VR 819; see also Azevedo v Secretary, Department of Primary Industries and Energy (1992) 35 FCR 284 at 300. The issue has been referred to in subsequent cases: see Lee v Secretary, Department of Social Security (1996) 68 FCR 491 at 496-498, 503-507, 513-516; Yao v Minister for Immigration and Ethnic Affairs (1996) 69 FCR 583 at 595-596; Kentlee Pty Ltd v Prince Consort Pty Ltd [1998] 1 Qd R 162 at 167-181, 183-184, 188-191; Durrisdeer Pty Ltd v Nordale Management Pty Ltd [1998] 1 Qd R 138 at 148; Brisbane City Council v Ace Waste Pty Ltd (1997) 97 LGERA 74 at 77."
However, like s 8 of the Acts Interpretation Act, its New South Wales equivalent was expressed to operate only in the absence of the appearance of a contrary intention, and Spigelman CJ found (at 351, [31]) the appearance of such contrary intention in the repealing legislation which he was there considering, so that the New South Wales equivalent provision was held not to operate in the circumstances.
59 An application to the High Court of Australia for special leave to appeal in Durham Holdings was dismissed, extensive written reasons being given for the dismissal: see Durham Holdings Pty Ltd v The State of New South Wales (2001) 177 ALR 436 (Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ). In his reasons for judgment, Kirby J mentioned (at 442, [25]) that the applicant had not pursued the Acts Interpretation Act point on the application for special leave.)
60 It will be noticed that, in the passage from his reasons for judgment quoted above, Spigelman CJ referred to Esber, a decision of the High Court (Mason CJ, Deane, Toohey and Gaudron JJ; Brennan J dissenting), and to Lee (Cooper and Moore JJ; Davies J dissenting) and Yao (Black CJ, Davies and Sundberg JJ), both decisions of Full Courts of this Court. (We mention incidentally that the High Court of Australia granted special leave to appeal from the decision of a Full Court of this Court in Lee, but that that special leave was afterwards revoked: see Secretary, Department of Social Security v Lee (1997) 148 ALR 145 (Brennan CJ, Toohey, Gaudron, McHugh, Gummow, Kirby and Hayne JJ).) To those three decisions may also be added a reference to two other decisions of Full Courts of this Court made since Durham Holdings, namely, Repatriation Commission v Keeley (2000) 98 FCR 108 (Lee, Cooper and Kiefel JJ) (special leave refused by the High Court of Australia: [2001] 1 Leg Rep SL 1 (Gaudron and Hayne JJ)); and Repatriation Commission v Thompson [2001] FCA 341 (Drummond and Emmett JJ; Whitlam J dissenting).
61 The present case is not one in which there was on foot as of 30 June 2000 an application for review of an administrative decision made by the ALS before that date, but rather an application to the ALS to make such a decision in favour of the group. The fact that, before the repeal of s 202 of the Act, Carr J had conducted a judicial review of a decision made by the ALS in respect of that application, and had ordered that the ALS carry out afresh the making of its decision on that application, did not bring the case within the principles applied in Esber, or the four subsequent decisions referred to above by Full Courts of this Court. The order of Carr J had the effect of re-enlivening the application, so that it became undetermined at the date of his order. The application remained so until 30 June 2000, when the power (and duty) of the ALS to determine it ceased.
62 Since, in the present matter (borrowing language from Ho Po Sang, Robertson and JR Exports), the application made to the ALS was neither the initiation of something in the nature of a cause of action nor an investigation in respect of a right, but instead began an investigation to decide whether some right should or should not be given or involved procedural steps under a statute to decide if a benefit should be granted by an administrative authority, it follows that s 8 of the Acts Interpretation Act did not keep alive after 30 June 2000 the application made to the ALS for the benefit of the group.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Lee, Lindgren & Katz.