Did the applicant accrue a right under Direction No. 55?
60 The applicant variously put the description of the "right" he had accrued under Direction No. 55, but ultimately submitted it was a right to "de novo review of the exercise of the [s 501] discretion in accordance with Direction No. 55".
61 The first difficulty with a formulation such as this is that, contrary to the requirements of s 7(2)(c), the source of the right articulated by the applicant is not the Direction (as the instrument which has been revoked). The applicant's right to have the s 501 residual discretion exercised by the Tribunal arises under ss 25 and 43 of the Administrative Appeals Tribunal Act, read with s 500 of the Migration Act. Second, a right of the kind asserted is contrary to the terms of s 499(2A) which require that a person or body to whom the direction is given complies, at the time it comes to make a relevant decision, with Direction No. 65. Clauses 2 and 3 of Direction No. 65 make this quite clear. Third, as we explain below, the content of Direction No. 65 does not determine how the s 501 discretion will be exercised in any given case.
62 The purpose of s 7(2) of the Acts Interpretation Act is to avoid construing repeals, revocations or amendments as having a retrospective effect on substantive rights or interests. By s 46, that purpose was extended to administrative instruments, provided they had the requisite effect for which, relevantly, s 7(2)(c) provided.
63 The underlying purpose of statutory provisions such as s 7(2)(c) was explained by Dixon J in Kraljevich v Lake View and Star Ltd (1945) 70 CLR 647 at 652 in discussing the analogous general common law rule:
The presumptive rule of construction is against reading a statute in such a way as to change accrued rights the title to which consists in transactions passed and closed or in facts or events that have already occurred. In other words, liabilities that are fixed, or rights that have been obtained, by the operation of the law upon facts or events for, or perhaps it should be said against, which the existing law provided are not to be disturbed by a general law governing future rights and liabilities unless the law so intends …
64 There may frequently be difficulties in finding that an administrative instrument has the effect of vesting a right, or giving effect to a transaction already completed, in a way which leads to the application of the preservatory effect of s 7(2)(c). This difficulty in application does not deny that, at the relevant time and subject to its terms, s 46 could apply to an instrument of an administrative character.
65 Generally, changes which are properly characterised as changes of process, practice or procedure will not attract the operation of the common law presumption against retrospectivity because they do not involve "rights and liabilities fixed by reference to past facts, matters or events": see Maxwell v Murphy (1957) 96 CLR 261 at 267-268. Similarly, changes of this kind do not attract the operation of s 7(2)(c).
66 Matters described as of "practice and procedure" are not necessarily of insignificant consequence for the person affected. Rodway v The Queen (1990) 169 CLR 515 is an example. In Rodway, an accused entered a plea on the basis of a provision in the Criminal Code (Tas) (s 136), which precluded conviction on the evidence of a victim without corroboration, but by the time of trial that provision had been repealed. The High Court held that the Tasmanian legislative equivalent of s 7(2) did not apply, because it affected only the way in which charges were to be decided by a jury, and the accused had no vested "right" to trial under the former provision.
67 In contrast, instruments such as Statements of Principles issued under the Veterans' Entitlements Act 1986 (Cth) have been held to attract the operation of provisions such as s 7(2) or in the same or relevantly similar terms. In Repatriation Commission v Keeley [2000] FCA 532; 98 FCR 108, Kiefel J held (at [76]) that Statements of Principles:
operate generally as a bar or threshhold test. The bar or limitation operates on the right to a pension itself because the Statements of Principles determine the connection between death and service as a minimum, in each case.
68 Kiefel J went on to explain (at [77]) the effect that the change in the Statement of Principles had on Mrs Keeley's claim for a pension in relation to her husband's death:
From the time the first SoP came into effect, Mrs Keeley's right to a pension was defined specifically by the requirement that the circumstances of her husband's service involved his exposure in the course of his work to paints and/or lacquers before the clinical onset of multiple myeloma, and then more generally by the requirement that the condition be attributed to his service. Whilst she was required to prove or vindicate that right, it was one which was then held by her. The second SoP required more - that work as a painter had been undertaken for a minimum period or periods and that the condition onset within a certain time from cessation of exposure through that work. Any increase in the bar to the remedy could not in my view be regarded as procedural. It affected a substantive right: see Pedersen v Young [(1964) 110 CLR 162] at 169. The comparison is as between a provision limiting access to the courts for enforcement of a claim and one which destroys or impairs the basis upon which a remedy will be given (and see McKain v R W Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 at 41). (our emphasis)
69 In Repatriation Commission v Keeley, Lee and Cooper JJ formed a similar view. Speaking of the effects of the provisions in the Veterans' Entitlements Act, and the role of Statements of Principles their Honours said at [42]:
The provisions do more than clarify the meaning of terms used in s 120(3) and how they are to be applied. They purport to restrict the operation of s 120(3) to the terms of the Statement determined under s 196B and in doing so substantively reform the nature of the right that is to be determined under the Act by application of the provisions of s 120. The right that accrued to the respondent upon lodgment of a claim, to have the claim determined under the Act by the Commission, was "affected" accordingly.
70 Similarly in Esber itself the repeal of statutory provisions changed an entitlement, rather than a process to secure an entitlement. In Esber the Compensation (Commonwealth Government Employees) Act 1971 (Cth) gave Mr Esber the ability to apply to redeem his weekly workers' compensation payments of in excess of $50 as a lump sum. He made such an application which was refused and he sought merits review, having been granted the requisite extension of time in which to do so. While his review was pending, the Commonwealth Parliament passed the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth). By that Act, weekly payments over $50 were not redeemable as a lump sum. The majority in the High Court held that the 1971 Act had given Mr Esber a "right" in the following sense (at 440):
…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. The Minister [The Winbar Claim] [(1988) 14 NSWLR 685 at 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 was conditional."
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". Nor was it a mere matter of procedure; it was a substantive right.
[Citations mostly omitted.]
71 Of course, even before the changes to the federal legislation, the Administrative Appeals Tribunal had to conclude that the delegate was wrong before anything would flow to Mr Esber. The difference is illustrated by this extract from the dissenting judgment of Brennan J in Esber at 449:
The distinction between a judicial proceeding to enforce an accrued right and an administrative proceeding to determine whether a right should be granted is critical in this case. Clearly the appellant had no accrued right on 1 December 1988 to a redemption payment; the very purpose of the review by the [Tribunal] which the appellant applied for was to obtain a right to a redemption payment.
72 That is why the majority's reasons in Esber refer to the right as a "conditional" one. In the present case, even if it might be said that the applicant is in the same position as Mr Esber in needing to succeed in his review in order to take advantage of the "right", unlike Esber there is no underlying change in a vested, or certain, position. Mr Esber had an entitlement, if the Tribunal was satisfied he was entitled to it, to redeem his weekly payments for a lump sum. That was given to him, or accrued to him, by reason of the then terms of the Compensation (Commonwealth Government Employees) Act 1971 (Cth). The redemption right was removed by the repealing provision, in the 1988 Act.
73 In the current proceeding, the applicant had, if the Tribunal was so satisfied, an entitlement to have the residual discretion in s 501(2) exercised in his favour. However, he had that right under both Directions. It was not Direction No. 55 which gave him that right: that right arose by reason of the combination of s 501 and s 500 of the Migration Act and ss 25 and 43 of the Administrative Appeals Tribunal Act. Nothing changed in that respect for the applicant with the revocation of Direction No. 55. It was open to him to secure the same outcome from the review, regardless of the fact that Direction No. 65 had replaced Direction No. 55.
74 In Lee v Secretary, Department of Social Security (1996) 68 FCR 491, the applicant had sought review in the Tribunal in relation to her obligation to repay social security debts accumulated as a failure to notify of changes in her circumstances. Before the review was completed, the applicable terms of the social security legislation concerning the ability of the Secretary (and therefore the Tribunal) to waive such debts changed. The new provisions gave no residual discretion to the Secretary to exercise the power of waiver in other than the circumstances set out in the new section. The previous waiver discretion was unconfined. Moore J held (at 516) that Ms Lee's right of review in the Tribunal was a conditional right of the same kind as the majority in Esber had identified - that is, provided she could succeed on persuading the Tribunal about what was the correct or preferable decision, she was entitled to have the waiver discretion exercised in its original form - that is, in a manner unconfined by the statutory amendments. Cooper J took a similar approach, and (at 506) he said:
… where the previous law has operated on past facts and resulted in a decision under the repealed s 1237, the new sections do not as a matter of construction or statutory purpose operate to displace whatever rights have accrued in consequence of a decision of the Secretary made before 24 December 1993.
75 Davies J dissented, and his approach can be seen in the following passage (at 499):
In the present case, having regard to the function which the Administrative Appeals Tribunal performs, to the fact that Ms Lee's claim was at most a claim to have a debt waived, which was a claim for the favourable exercise of an unstructured discretion, and to the fact that the application had not been lodged with the Administrative Appeals Tribunal when the amending legislation commenced, I am satisfied that Ms Lee had no accrued right which entitled her to rely upon the law as it stood before the amendment.
76 The different approaches between Davies J on the one hand and Cooper and Moore JJ on the other illustrate how much the answers to questions about the application of provisions such as s 7(2) of the Acts Interpretation Act depend on judicial analysis of the "right" accrued. Davies J, in dissent in Lee, analyzed the right at a broader level - being, the right to merits review of an exercise of a discretion. Cooper and Moore JJ analyzed the "right" at a great level of specificity - namely the right to have the waiver power exercised on merits review on the same basis as the primary decision.
77 Lee is the case which provides the greatest support to the applicant's contentions but in our opinion it remains materially different. In Lee, the underlying basis for the exercise of the statutory discretion was altered by statutory amendment so that on merits review the Tribunal was exercising a more narrowly confined discretion. The statutory power itself had changed.
78 In the present case, the discretionary power in s 501 has remained the same. The contents of Direction No. 65, like the contents of Direction No. 55, must inform the matters the Tribunal examines. Both Directions set out prescriptively the content of many of those matters. By doing so, a question may arise regarding the relationship between the Directions and s 501, including the extent to which a Direction may validly modify the scope of a power or function provided for by the Act: Williams v Minister for Immigration and Border Protection [2014] FCA 674; 226 FCR 112 at [36]-[43]. However, no submission was advanced in this proceeding regarding the validity of either Direction and the prescriptiveness just identified is a common feature of both Directions, rather than a difference between them. Ultimately, in the application of both Directions, each decision maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision maker to the evidence and material in an individual case.
79 Implicit in the way the applicant articulated the "right" was the proposition that Direction No. 55 was in its content more favourable to the applicant than Direction No. 65, with the consequence that the revocation of Direction No. 55 and its replacement by Direction No. 65 had an adverse effect on his interests. As already stated, however, we do not accept the submission that the revocation of Direction No. 55, and its replacement with Direction No. 65 caused any diminution in the content of the applicant's rights of review in the Tribunal. There being no amendment to ss 500 or 501 of the Migration Act, those rights were preserved and protected by the Administrative Appeals Tribunal Act itself, making provision for the Tribunal's review function. Despite the transformation of cl 9.2 (dealing with "Strength, duration and nature of the person's ties to Australia") from a primary consideration in Direction No. 55 to become cl 10.2 and merely an "other consideration" in Direction No. 65, with the concomitant loss of the benefit of cl 8(4) concerning the "generally" increased weight to be given to primary considerations, in our opinion that change did not necessarily make Direction No. 65 "less beneficial" in a relevant way. Although Direction No. 65 (like Direction No. 55) is prescriptive, and detailed in its prescriptions, the current Direction, like its predecessor, is intended to be applied to each set of individual facts and circumstances presented to the decision maker. The ultimate decision must therefore reflect the claims of, and evidence and information about, an individual. No matter where the factor "Strength, duration and nature of the person's ties to Australia" is located in the Direction, the evidence about a particular individual (and the claims made) may mean that this consideration is afforded the most weight of any factor. All these are evaluative assessments for the decision maker, which the Direction cannot determine.