NETTLE J. Section 65 of the Migration Act 1958 (Cth) provides, inter alia, that, if the Minister for Immigration and Border Protection (the appellant in this Court, hereinafter "the Minister") is satisfied that a visa application satisfies the criteria prescribed by the Migration Act or the Migration Regulations 1994 (Cth) ("the Regulations"), the Minister is to grant the visa or, if not so satisfied, to refuse the visa. Clause 572.211 of Sched 2 to the Regulations relevantly provides that the criteria to be satisfied at the time of application for a Subclass 572 (Vocational Education and Training Sector) visa include that the applicant is the holder of a Subclass 485 (Temporary Graduate) visa.
The first respondent ("Mr Kumar") was the holder of a Subclass 485 visa that expired on Sunday, 12 January 2014. On Friday, 10 January 2014, Mr Kumar posted an application for a Subclass 572 visa to the Department of Immigration and Border Protection. The application was not received by the Department until Monday, 13 January 2014, one day after Mr Kumar's Subclass 485 visa had expired. It was common ground between the parties that the date Mr Kumar's application was made for the purposes of the Migration Act and the Regulations was the date that it was received by the Department, that is, Monday, 13 January 2014.
On 16 May 2014, a delegate of the Minister refused Mr Kumar's application for a Subclass 572 visa on the ground that, because his Subclass 485 visa had expired one day before the Department received the application, Mr Kumar was not the holder of a Subclass 485 visa at the time of application for a Subclass 572 visa. Mr Kumar's wife, whose visa application was practically dependent on that of her husband, and their son are also respondents to this appeal.
The question for decision is whether s 36(2) of the Acts Interpretation Act 1901 (Cth) operated so as to extend, until Monday, 13 January 2014, the time in which Mr Kumar was allowed to make an application for a Subclass 572 visa that was capable of being granted under s 65 of the Migration Act. For the reasons which follow, that question should be answered, yes.
History of the litigation
Mr Kumar applied to the Migration Review Tribunal for review of the delegate's decision to refuse his application for a Subclass 572 visa. After a hearing, the Tribunal affirmed the delegate's decision. The Tribunal made no reference to s 36(2) of the Acts Interpretation Act.
Mr Kumar applied for judicial review of the Tribunal's decision in the Federal Circuit Court of Australia. Judge Street concluded that he was bound by the decision of the Full Court of the Federal Court of Australia in Zangzinchai v Millanta to hold that cl 572.211 of Sched 2 to the Regulations is not a provision that requires or allows a thing to be done within the meaning of s 36(2) of the Acts Interpretation Act, but is rather a provision that identifies a state of affairs that must exist at the time of application for a visa, and thus a provision to which s 36(2) of the Acts Interpretation Act has no application. His Honour accordingly dismissed Mr Kumar's application.
Mr Kumar then appealed to the Federal Court of Australia. North J allowed the appeal, holding that, as a result of amendments to s 36 of the Acts Interpretation Act since Zangzinchai was decided, s 36(2) so operated in this case as to allow Mr Kumar to lodge his application for a Subclass 572 visa on Monday, 13 January 2014, as if he had lodged it the day before. By grant of special leave, the Minister appeals to this Court.
Relevant legislation
Section 29(1) of the Migration Act empowers the Minister to grant visas permitting non-citizens to travel to and enter Australia and/or remain in Australia. Section 31(3) of the Migration Act provides that the Regulations may prescribe criteria for a visa or a specified class of visa. Section 45 provides that, generally, a non-citizen who wants a visa must apply for a visa of a particular class.
Section 65 provides, so far as is relevant, as follows:
"Decision to grant or refuse to grant visa
(1) After considering a valid application for a visa, the Minister:
(a) if satisfied that:
(i) the health criteria for it (if any) have been satisfied; and
(ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; ...
...
is to grant the visa; or
(b) if not so satisfied, is to refuse to grant the visa."
Schedule 2 to the Regulations relevantly provides as follows:
"572.21 - Criteria to be satisfied at time of application
572.211
(1) If the application is made in Australia, the applicant meets the requirements of subclause (2) ...
(2) An applicant meets the requirements of this subclause if the applicant is:
...
(d) the holder of a visa of one of the following subclasses:
...
(iia) Subclass 485 (Temporary Graduate)".
The decision in Zangzinchai
At the time of the decision in Zangzinchai, s 36(2) of the Acts Interpretation Act was as follows:
"Where the last day of any period prescribed or allowed by an Act for the doing of anything falls on a Saturday, on a Sunday or on a day which is a public holiday or a bank holiday in the place in which the thing is to be or may be done, the thing may be done on the first day following which is not a Saturday, a Sunday or a public holiday or bank holiday in that place."
In Zangzinchai, the applicant was the holder of a temporary entry permit that expired on Sunday, 1 March 1992. He applied for an extended entry permit the following day. His application was refused and he sought a review of that decision. Under the terms of the applicable legislation, an applicant for an entry permit could apply for review of a decision only if the applicant was "lawfully present in Australia, when he or she lodged the application". The majority of the Full Court (Neaves and Beazley JJ) held that the decision was not a reviewable decision because the applicant's existing temporary entry permit had expired on the Sunday, one day before he lodged the application for an extended entry permit, and, therefore, because the applicant was not lawfully present in Australia when he lodged the application. Their Honours endorsed a passage from an earlier decision of the Immigration Review Tribunal to the effect that s 36(2) of the Acts Interpretation Act did not apply because:
"its application depends, according to the terms of the section, upon the prescription of a period for the doing of something and the Act and Regulations do not contain any such prescription of time for the making of an application for an entry permit. An application for a further temporary entry permit may be made at any time, even if, as in the present case, the applicant is an illegal entrant in which case however certain further criteria must be satisfied. The lawful status of a non-citizen cannot exist without, and is a quality arising from, the possession of an entry permit. Therefore lawful status is lost by a temporary resident as a passive act through the expiry of an entry permit and can only be regained or maintained by the grant of, and not the application for, a further temporary entry permit in respect of which, as already noted, there is no time prescription in the Act or Regulations." (emphasis in original)
Burchett J dissented. His Honour held that the application of s 36(2) was not confined to cases in which legislation "prescribed" a period for the doing of a thing but extended also to instances where legislation "allowed" a period of time for the doing of a thing. In his Honour's view, legislation could be said to "allow" a period of time for the doing of a thing, even if it did not in terms precisely prescribe such a period, so long as it indirectly established a period in which the thing was to be done. So construed, his Honour concluded, s 36(2) was to be understood as permitting the application for an extended entry permit to be lodged "as an effective application, on the Monday or other applicable day".
The reasoning of the Court below
In 2011, s 36 of the Acts Interpretation Act was amended to its present form, such that it now reads, relevantly, as follows:
"Calculating time
...
(2) If:
(a) an Act requires or allows a thing to be done; and
(b) the last day for doing the thing is a Saturday, a Sunday or a holiday;
then the thing may be done on the next day that is not a Saturday, a Sunday or a holiday.
Example: If a person has until 31 March to make an application and 31 March is a Saturday, the application may be made on Monday 2 April.
(3) In this section:
holiday, in relation to the time for doing a thing, means:
(a) a day that is a public holiday in the place in which the thing is to be or may be done; and
(b) if the thing is to be or may be done at a particular office or other place a day on which the place or office is closed for the whole day."
In the Federal Court, North J held that the reasoning of the majority in Zangzinchai does not apply to the amended form of s 36(2), because:
"[t]he previous version of the section operated on a period prescribed, or allowed, by an Act, whereas the current version operates on a broader set of circumstances where an Act requires or allows a thing to be done."
His Honour concluded that the amended form of s 36(2) "allows the thing in question to be done; that is to say, it allows for the thing to be effectuated on the later date as if it were being done on the earlier date".
The Minister's contentions
Before this Court, the Minister contended that North J's construction of s 36(2) is plainly wrong. In the Minister's submission, the Explanatory Memorandum relating to the 2011 amendment leaves no room for doubt that the purpose of the amendment was "not substantively [to] change the existing policy" of the provision but rather only to make it "more user friendly". It follows, in the Minister's submission, that s 36(2) in its amended form is to be construed just as it was construed by the majority in Zangzinchai in its pre‑amendment form.
In the Minister's submission, North J's construction of s 36(2) should further be rejected because it would radically alter the criteria applicable to the grant of a Subclass 572 visa. It would mean that, despite the express statutory requirement that an applicant for a Subclass 572 visa be the holder of a Subclass 485 visa at the time of application, an applicant could succeed in an application for a Subclass 572 visa without being the holder of a Subclass 485 visa at the time of application. In the Minister's submission, it cannot be supposed that that is the purpose or effect of s 36(2).
The Minister also contended that North J's construction of s 36(2) is contrary to the way in which s 36(2) was construed in Re Tavella and by this Court in Associated Dominions Assurance Society Pty Ltd v Balmford.
Consideration
The effect of the 2011 amendment to s 36(2)
With respect, there appears to be some force in North J's conclusion that the 2011 amendment brought about a substantive change to the operation of s 36(2). Standard dictionary definitions of "prescribe" and "require" suggest that prescription involves a more explicit stipulation than requirement; the distinction deriving in part from the etymological root of "prescribe", praescribere, connoting a direction in writing. It appears also to be of significance that the provision as amended no longer refers to a "period" allowed by an Act. As amended, it presents as capable of application to a situation in which an Act has the practical effect of requiring or allowing a thing to be done by a particular "last day" without necessarily setting out a last day before which the thing is to be done. There is some support for that notion, too, in the example of the intended operation of the provision, which appears in the Act immediately below sub‑s (2), and particularly in the general phrasing of the imperative:
"Example: If a person has until 31 March to make an application and 31 March is a Saturday, the application may be made on Monday 2 April." (emphasis added)
Admittedly, as the Minister submitted, the Explanatory Memorandum states that the amendment did "not substantively change the existing policy". But considered changes to the text of a legislative provision cannot be overridden by an executive pronouncement. And, far from supporting the Minister's preferred construction, the Explanatory Memorandum also records that the amendment was "intended to capture a broader range of situations". Accordingly, as at present advised, I would not exclude the possibility that the changes made by the 2011 amendment were sufficient reason to depart from the reasoning in Zangzinchai.
For present purposes, however, it is unnecessary to decide that point, because, even if the 2011 amendment did not alter the substantive effect of s 36(2), there are compelling reasons to depart from the reasoning in Zangzinchai as to the application of s 36(2) to ss 45 and 65 of the Migration Act.
The application of s 36(2)
As was earlier recorded, s 36(2) of the Acts Interpretation Act applies where an Act requires or allows a thing to be done and the last day for doing the thing is a Saturday, a Sunday or a holiday. Relevantly, s 45 of the Migration Act allows a thing to be done, namely, a non-citizen to apply for a visa of a particular class, in this case a Subclass 572 visa. Section 45 does not specify the last day for making such an application, but cl 572.211 of Sched 2 to the Regulations, coupled with s 65 of the Migration Act, relevantly mandates that the Minister cannot grant an application for a Subclass 572 visa unless at the time of application the applicant is the holder of a Subclass 485 visa. Axiomatically, a "Subclass 485 (Temporary Graduate)" visa is only ever issued on a temporary basis and thus for a period of time that must expire. It follows that it is a criterion for acceptance of an application for a Subclass 572 visa that "at time of application" the applicant's most recently issued Subclass 485 visa has not expired. As will be explained later in these reasons, that is a sufficient basis to conclude that, within the meaning of s 36(2) of the Acts Interpretation Act, the Migration Act (specifically ss 45 and 65, combined with cl 572.211 of Sched 2 to the Regulations) allows an applicant to make an application for a Subclass 572 visa that is capable of being granted under s 65 only if the application is made before the applicant's most recently issued Subclass 485 visa expires.
It will be recalled that the majority in Zangzinchai held that s 36(2) in its pre-amendment form did not apply to an application for an entry permit because "its application depends, according to the terms of the section, upon the prescription of a period for the doing of something and the [Migration Act] and Regulations do not contain any such prescription of time for the making of an application for an entry permit". So to approach the construction of s 36(2) is unduly limited. Section 36(2) in its pre-amendment form was not limited only to cases in which a section of an Act prescribed a period for the doing of a thing. It applied also where an Act allowed a period for the doing of a thing and, as Burchett J observed, what an Act allows is a broader concept than what it prescribes. As his Honour put it:
"On the face of the provision, the use of the expression, 'or allowed by an Act', makes it clear that s 36(2) applies where, according to the true construction of an Act, a period is allowed for the doing of something; it is not necessary to find a provision prescribing in terms that something shall be done within a particular period. That the subsection is not concerned with the formulation of a prescription is also made clear by the way it operates. It does not say that a statement of a period shall be read as extending to the day after a Sunday etc. It is not so tied to the manner in which an Act may be drafted. (That could have been seen as involving possibly fortuitous limitations upon the scope of the Acts Interpretation Act.) Instead, it goes to the substance, providing that 'the thing may be done on the first day following …'. I think this provision must be construed as meaning 'done effectively', and that it should be given its full impact upon the substance of what other legislation, to be interpreted in the light of the Acts Interpretation Act, may allow." (emphasis in original)
At the time of the enactment of the Acts Interpretation Act in 1901, there were provisions comparable to s 36(2) in several of the Australian States and in New Zealand. As Burchett J observed, and the margin notes of the Acts Interpretation Act recorded, s 36 was closely based on s 35 of the Interpretation Act 1897 (NSW). It was also similar in form to s 24(1) of the Interpretation Act 1888 (NZ). The latter provision fell for consideration in Wall v Commissioner of Stamps. The question in that case was whether s 24(1) of the Interpretation Act 1888 had the effect of extending the time in which an instrument could be stamped without penalty under the Stamp Act 1882 Amendment Act 1885 (NZ) ("the Stamp Act"). Section 24(1) of the Interpretation Act 1888 provided that:
"If the time limited by any Act for any proceeding, or the doing of anything under its provisions, expires or falls upon a holiday, the time so limited shall be extended to, and such thing may be done on, the day next following which is not a holiday ..."
Section 4 of the Stamp Act relevantly provided that:
"any unstamped or insufficiently-stamped instrument may be stamped or further stamped by the Commissioner after the first execution thereof, on payment of the unpaid duty and fine in addition to the duty as follows:
(1) When such instrument is presented to be stamped more than one month and less than three months after execution, a fine of twenty‑five per centum on the amount of duty payable.
(2) When such instrument is presented to be stamped more than three months after execution, a fine of one hundred per centum on the amount of the duty payable ..."
Stout CJ concluded that s 4 of the Stamp Act could be regarded as a provision which limited the time for the doing of a thing under the statute, namely, stamping an instrument without penalty, and that s 24(1) of the Interpretation Act 1888 "applies just as much as in any other case of the time limited for the doing of an act expiring on a Sunday". Although s 4 of the Stamp Act did not provide in terms that an instrument had to be, or could only be, stamped within a specified period of time it was permissible to stamp an instrument at a later time on payment of a penalty as specified in sub‑s (1) or sub-s (2) the effect of s 4 of the Stamp Act was, in substance, to allow an instrument to be stamped without penalty, or with a lesser penalty, within a specified period of time and that was enough to qualify the provision as one which limited the time for the doing of anything within the meaning of s 24(1) of the Interpretation Act 1888.
As Burchett J also observed in Zangzinchai, a later version of s 24(1) of the Interpretation Act 1888 was similarly construed by the New Zealand Court of Appeal in Price v Williams. The issue there was whether s 25(a) of the Acts Interpretation Act 1924 (NZ) applied to a notice of default given under s 92 of the Property Law Act 1952 (NZ). Section 25(a) of the Acts Interpretation Act 1924 provided that, if the time limited by any Act for the doing of anything under its provisions expired or fell upon a holiday, the time so limited should be extended to the day next following which was not a holiday. Section 92 of the Property Law Act provided that a power under a mortgage to sell land or enter into possession of land was not to become exercisable unless and until the mortgagee served a notice of not less than one month, specifying the default and a date on which the power would become exercisable and requiring the owner to remedy the default. The New Zealand Court of Appeal held that, although s 92 of the Property Law Act did not directly impose a time limit, it did so indirectly by providing for a date to be fixed in the notice and by stipulating that the power of sale could only be exercised on or after that date. In substance, the provision required that the remedying of the default be done before that date, and in that way it limited the time in which the default could be remedied. Accordingly, because the time limit for remedying the default fell on a Sunday, the mortgagor in that case could, perforce of s 25(a) of the Acts Interpretation Act 1924, effectively remedy the default on the following Monday.
In Thomson v Les Harrison Contracting Co, Harris J applied similar reasoning to the application of s 31A(1) of the Acts Interpretation Act 1958 (Vic) to s 5(6) of the Limitation of Actions Act 1958 (Vic). Section 31A(1) of the Acts Interpretation Act 1958 provided in terms that: "Where the time limited by any Act for the doing of any act or thing expires or falls upon a holiday the act or thing may be done on the day next following that is not a holiday." Section 5(6) of the Limitation of Actions Act provided in terms that: "No action for damages ... shall be brought after the expiration of three years after the cause of action accrued." On the facts in Les Harrison Contracting, the three years provided for in s 5(6) expired on a holiday. Hence, the question was whether s 31A(1) of the Acts Interpretation Act 1958 could be relied upon to extend the time for the issue of a writ to the next day following that was not a holiday. Harris J held that, although s 5(6) of the Limitation of Actions Act did not in terms provide for "the time limited" for the bringing of an action, it would be artificial to confine the application of s 31A(1) only to provisions which expressly provide for "the time limited". It accorded with the evident purpose of the provision to construe it as applying also to provisions which, not in terms or directly, but in substance or indirectly, limited the time in which something was to be done.
Parity of reasoning dictates that ss 45 and 65 of the Migration Act, and cl 572.211 of Sched 2 to the Regulations, should be approached in the same way. By allowing a non-resident to make an application for a visa of a particular class, and by providing that an application not be capable of grant under s 65 unless it satisfies the criteria prescribed by the Regulations (one of which was, in this case, that the applicant be the holder of a current Subclass 485 visa), ss 45 and 65 together "allow" a non-citizen who is the holder of a current visa as required by the Regulations to make a visa application and indirectly limit the time in which that may be done to the period during which the applicant's current visa remains in force.
Significantly, in this case, the Minister did not attempt to confront the reasoning in Wall, Price v Williams or Les Harrison Contracting. Instead, counsel for the Minister asserted, without explanation, that s 36(2) has no work to do in circumstances where a statutory provision attaches a particular consequence to the existence of certain facts at a particular time. So to contend is to divert attention from the enquiry required by s 36(2). If the statutory imposition of such consequences serves to require or allow a thing to be done by a particular time, s 36(2) may be engaged.
There are also textual indications in cl 572.211 of Sched 2 to the Regulations that support that approach. The criteria in cl 572.211(2) and (3) may be seen as, in effect, directed towards two alternatives, one where an applicant's visa is still in force and the other where an applicant's visa has expired. Clause 572.211(2)(d)(iii) provides that an applicant for visa satisfies the conditions of that sub-clause if, "at time of application", the applicant is the holder of a Subclass 497 (Graduate Skilled) visa, which is a substantive visa. Clause 572.211(3)(a), (b)(v) and (c)(i), taken together, provide that an applicant also satisfies the conditions of the sub‑clause if, at time of application, the applicant is no longer the holder of a substantive visa, but the application is made within 28 days of the day when the last substantive visa ceased to be in effect. The former provision provides in terms for the criteria of acceptability where an application for visa is made while the last substantive visa remains current. The latter provisions provide in terms for the criteria of acceptability where an application for visa is made within 28 days of the last substantive visa ceasing to be current. Both provide for the time in which an acceptable application for visa may be made. And, since cl 572.211(2)(d)(iia) is in form identical to cl 572.211(2)(d)(iii), except that the former refers to a "Subclass 485 (Temporary Graduate)" visa and the latter to a "Subclass 497 (Graduate Skilled)" visa, it is natural to conceive of cl 572.211(2)(d)(iia) as applying to a Subclass 485 visa in the same way that cl 572.211(2)(d)(iii) applies to a Subclass 497 visa; which is to say, by providing for the period in which an acceptable application for visa may be made.
A deeming or fiction?
It was contended on behalf of the Minister that to construe ss 45 and 65 of the Migration Act, for the purpose of s 36(2) of the Acts Interpretation Act, as allowing a thing to be done and as providing for the time in which that thing is to be done would involve a deeming or fiction that an applicant for visa whose previous Subclass 485 visa has in fact expired at the time of application is still the holder of a current Subclass 485 visa at the time the application is received on the next following business day.
That submission is unpersuasive. Treating ss 45 and 65 of the Migration Act as providing for a time in which something is to be done involves no more deeming or fiction than characterising the express requirement that an applicant be the holder of a Subclass 485 visa at the time of application as a necessarily implied requirement that the application for visa be made before the expiry of the applicant's last issued Subclass 485 visa. In principle, that is no different from, and no more forced a construction of the criterion specified in cl 572.211(2)(d)(iia) than, characterising a prohibition against a mortgagee entering into possession of mortgaged premises before expiration of a specified period of notice as a provision which allows the mortgagor to remedy a default within the specified period of notice. It is no more an artificial exercise in deeming or fiction than treating a provision that a cause of action shall not be brought more than a specified number of years after the accrual of the cause of action as a provision which allows an action to be brought within that time. Nor is it any more an artificial exercise in deeming or fiction than to say of a provision that a class of instrument may be stamped without penalty, or with a lesser penalty, within a specified period of time following execution, that it is a provision which allows a thing to be done and limits the time in which it may be done.
Granted, the above examples involve statutory provisions which specifically identified a period of time in which something could be done with particular consequences. Sections 45 and 65 of the Migration Act and cl 572.211 of Sched 2 to the Regulations do not do that in terms. But they do specifically refer to criteria that must be satisfied at the time of application in order to attract a particular consequence, namely, that the application is capable of being granted by the Minister under s 65. One of those criteria, and the one enlivened in this case, is that an applicant be the holder of a Subclass 485 visa "at time of application". As previously observed, a Subclass 485 visa is a temporary visa which is issued for a finite period of time. Relevantly, therefore, the criterion of an application for visa that is capable of being granted under s 65 is that the application be made before the applicant's last issued Subclass 485 visa has expired. It follows to adopt and adapt the language of de Jersey J in Price v J F Thompson (Qld) Pty Ltd that, although ss 45 and 65 and cl 572.211 are cast in the form of a criterion of acceptability, they no less prescribe a period of time. By providing that it is a criterion of acceptability that an applicant be the holder of a Subclass 485 visa at the time of application, ss 45 and 65 and cl 572.211 carry with them the ineluctable corollary that an application for visa which is capable of being granted must be made before the expiration of the applicant's most recently issued Subclass 485 visa. That is the necessary implication of the criterion of acceptability and so it must be regarded as part of what ss 45 and 65 and cl 572.211 provide. To say otherwise is to deny the natural and ordinary effect of the provisions.
The Minister further contended that, even so, it would be improper to characterise the operation of ss 45 and 65 as such because deeming an applicant who is not in fact the holder of a Subclass 485 visa at the time of application to have been the holder of a Subclass 485 visa at the time of application would work a radical change to the operation of the statutory criteria of acceptability. That submission is also unpersuasive.
As is illustrated in part by the examples already given, in truth most applications of s 36(2) of the Acts Interpretation Act or cognate provisions involve a coordinate degree of deeming or fiction which affects the operation of the subject statutory criteria. In the case of provisions for the stamping of instruments without penalty, application of s 36(2) or a cognate provision involves the fiction that an instrument, which is in fact not lodged for stamping until after the expiration of the penalty-free period, is lodged for stamping before the expiration of the penalty-free period. That affects the subject statutory criteria by extending the period for stamping. In the case of provisions prohibiting the entry of a mortgagee into possession until after a specified period of notice of default has been given, application of s 36(2) or a cognate provision involves the fiction that, despite the requisite period of notice having been given, the mortgagee is to be taken as having not given the requisite period of notice until the business day next following the Saturday, Sunday or public holiday on which the requisite period of notice expired. That affects the subject statutory criteria by extending the period for rectification. In the case of provisions for the limitation of actions, application of s 36(2) or a cognate provision involves the fiction that a limitation period that in fact expires on a Saturday, Sunday or public holiday is as yet still unexpired on the next business day. And that affects the subject statutory criteria by extending the period in which action may be brought. The effect upon subject statutory criteria of such deeming or fiction as results from the operation of s 36(2) or a cognate provision on each of those provisions cannot be regarded an unlikely or unintended consequence. Mutatis mutandis, the same holds for the effect upon statutory criteria of such deeming or fiction as results from the operation of s 36(2) on ss 45 and 65 and cl 572.211.
Decisions in Re Tavella and Balmford
A good deal was made in the Minister's written submissions before this Court, as it was before the Court below, of the decision of Clyne J in Re Tavella as to the inapplication of s 36(2) of the Acts Interpretation Act to the legislative predecessor to s 44(1)(c) of the Bankruptcy Act 1966 (Cth). In similar terms to s 44(1)(c), the predecessor provision forbade the presentation of a bankruptcy petition unless "the act of bankruptcy on which the petition is grounded has occurred within six months before the presentation of the petition". Clyne J held that the provision did not prescribe a day for presenting a petition, and accordingly that, although the day six months after the act of bankruptcy was a Sunday, s 36(2) of the Acts Interpretation Act did not operate so as to extend the date for presentation of the petition to the following Monday. Re Tavella does not have the significance which the Minister sought to attribute to it. As Burchett J noticed in Zangzinchai, the reasoning in Re Tavella is problematic in that it was based on decisions that have since been doubted or in some instances expressly disapproved; and, indeed, counsel for the Minister in this Court conceded that the reasoning in Re Tavella is at best opaque.
More importantly, however, there is no reason in principle to confine the application of s 36(2) of the Acts Interpretation Act to legislation which in terms, or, in other words, "directly", allows for a thing to be done within a specified period of time. Although the central aim of statutes like the Acts Interpretation Act is the facilitation of consistency in statutory construction and the avoidance of unnecessary repetition, it does not follow that a particular provision within such a statute may not have a particular, different purpose.
In order to appreciate the particular purpose of s 36(2), it is necessary to have regard to the legislative history of the provision and ultimately to the common law rule of statutory interpretation from which it derives. Once that historical context is understood, it can be seen that the provision is essentially remedial in nature and thus aptly described as providing a "safeguard" for persons required or allowed to do a thing by the operation of an Act. Remedial legislation like s 36(2) should be construed in a manner that gives effect to the remedy and secures the result which it is the purpose of the legislation to achieve. It follows, as is demonstrated by the decision of the New Zealand Court of Appeal in Price v Williams, that a provision like s 36(2) is logically to be understood as applying as much to legislation that in substance, or "indirectly", allows for a thing to be done within a specified period of time as to a provision which in terms, or directly, allows for a thing to be done within a specified period of time. That point is further emphasised by the decision of the Full Court of the Supreme Court of Queensland in Price v J F Thompson.
Possibly, there may be some reason in policy to adopt a different approach in the case of bankruptcy legislation. Depending on its terms, character and any necessary implication, it may be that such legislation evinces an intention to displace s 36(2). Alternatively, it may be that the purpose of 36(2) should be seen as confined to conferring an advantage on persons required or permitted to do something within a period of time, as opposed to persons having power to impose duties or obligations on other persons. Leastways, that is how some scholars have understood the holding in Balmford and it accords with the rationale of the common law rule of construction from which s 36(2) derives. The result in Re Tavella, albeit not Clyne J's reasoning, is consistent with that sort of approach. By contrast, however, there is nothing in principle or policy about ss 45 and 65 of the Migration Act that warrants a restrictive approach to the application of s 36(2) of the Acts Interpretation Act. Sections 45 and 65 do not in any sense provide for a visa applicant to impose a duty on another person. They allow an applicant to make an application for visa that is capable of being granted under s 65 during the currency of the applicant's most recently issued visa. There is no reason in principle or policy why s 36(2) should not apply.
The Minister's reliance on the decision of this Court in Balmford is equally misplaced. In Balmford, the question was whether s 36(2) so operated as to validate an invalid notice served by the Insurance Commissioner on an insurance company under s 55(1) of the Life Insurance Act 1945 (Cth). Section 55(2) of the Life Insurance Act provided that, if the company failed to show cause within the period of not less than 14 days specified in the notice, the Commissioner could proceed to make an investigation of the company's business. The notice in fact given provided a period of less than 14 days expiring on a Sunday. The Commissioner argued that, although the period of notice given was only 13 days, the notice was not invalid because s 36(2) extended the time for compliance to the next following Monday, and thereby extended the period of notice to 14 days. The argument was rejected. Williams, Webb and Fullagar JJ reasoned separately, but to similar effect, that, if the notice had been of at least 14 days expiring on a Saturday, Sunday or other holiday, s 36(2) would have operated to extend the time for compliance to the next business day. But, because the notice was of less than 14 days, it did not comply with the mandatory statutory requirement that it be of not less than 14 days, and thus it was invalid. And, being invalid, it was not something to which s 36(2) could apply.
By contrast, ss 45 and 65 of the Migration Act do not specify a minimum period of notice and they do not provide for one person to impose a duty on another. They allow an applicant for visa to make an application that is capable of being granted under s 65 right up to the moment that the applicant's current visa expires. There is also nothing about ss 45 and 65 which implies that an application made after the expiration of an applicant's existing visa is invalid. An application which satisfies the requirements of Sched 1 to the Regulations (which the application in this case did) is a valid application, notwithstanding that it may not satisfy the requirements of Sched 2. It is just that, although validly made, an application cannot be granted under s 65 unless the requirements of Sched 2 are met.
The re-enactment rule
Finally, it should be mentioned that underlying the Minister's written submissions was the suggestion that this Court should not depart from the construction of s 36(2) of the Acts Interpretation Act adopted by the majority in Zangzinchai because s 36(2) was re-enacted in 2011 in substantially the same form after the provision had been so construed.
That submission is not persuasive either. Granted, where legislation is re‑enacted after being judicially interpreted, there is something of a presumption that the legislature has thereby approved the interpretation. But, as was observed in Salvation Army (Victoria) Property Trust v Fern Tree Gully Corporation, the presumption should not lead the court to perpetuate a construction of a statutory provision which it considers to be erroneous. Over time and with changes in the "mechanics of law-making", the importance of the presumption has declined. Accordingly, as was stated in Flaherty v Girgis, the rule is nowadays of much less use as a guide and will not be permitted to prevail over an interpretation otherwise appearing to be correct. It is to be observed, too, that the rule has typically been confined in its application to the re‑enactment of a provision in identical terms. It is, therefore, particularly inapposite in a case like this where the legislature has deliberately employed different wording from the earlier form of the provision. Possibly, the change in format made by dividing the provision into paragraphs was essentially only stylistic, seeking to make the form of the provision align more closely with modern drafting techniques without necessarily changing its substantive effect. But the change from "prescribe" to "require" cannot be dismissed on that basis. In the absence of other explanation, it presents as bringing the operation of the provision more closely into line with Burchett J's reasoning in Zangzinchai.
In the result, for the reasons already stated, the construction of s 36(2) adopted by the majority in Zangzinchai does not appear to be correct. It unnecessarily limits the operation of the sub-section in a way that is not supported by the text, purpose or context of the provision, and which is inconsistent with the balance of authority as to the proper construction of comparable provisions. Such presumption as there may be because of the re‑enactment of s 36(2) after the decision in Zangzinchai is not a sufficient reason to prefer the majority's reasoning in that case to the construction of s 36(2) which otherwise appears to be correct.
Conclusion
It follows that I would dismiss the appeal, but it is unnecessary to make an order as to costs in light of the Minister's undertaking to pay the first, second and third respondents' costs in this Court.