Previous authorities
173 I accept the submissions made by the respondent (with the examples given at [12] to [16] of the supplementary submissions) that:
None of the authorities cited by the appellants involve ratio in support of the appellants' broad proposition, namely that s. 12(1) of the Interpretation Act 1978 (UK) (and therefore, by extension, s. 33(1) of the AIA) confers a general power to revoke previous exercises of power, irrespective of the character of the power. Most of the UK authorities cited by the appellants … involve nothing more than illustration of the proposition that in the case of certain types of statutory powers, a further exercise of power will have the effect of revoking or varying the consequences of a previous exercise of the same power. … In some cases, the character of the power is such that a further exercise of the power necessarily has the effect of altering the state of affairs arising from a previous exercise of power, including in such a way that the previous exercise of power may be described as being effectively varied or revoked. The point is that this is because of the nature of the power that is being exercised from time to time, not from any independent additional power conferred by s. 12(1) of the Interpretation Act 1978 (UK).
174 I also accept the respondent's supplementary written submissions at [18] to [23] regarding the Canadian decision of Comeau's Sea Foods Ltd v Canada [1997] 1 SCR 12, relied on by the Minister and which considers the similarly worded Canadian equivalent to s 33(1). The respondent is correct, in my opinion, to submit that the decision contains no reasoning in explaining why the equivalent to s 33(1) should be read in all cases as altering "the basic characteristics of the statutory power in respect of which it is operating, by conferring an additional power to revoke previous decisions". I accept the respondent's submission that the Supreme Court's perception of the need for flexibility in responding to changing conditions in relation to lobster stocks influenced its approach. However, in my opinion more importantly, Comeau concerned a two-stage statutory power: a power to authorise the issue of licences, which the Court referred to as a "devolution of authority" by the Minister; and a power to grant licences in accordance with that authorisation, exercisable by other public officials (at [29]). The Supreme Court was concerned with a revocation of the authorisation to issue, as the statutory scheme expressly circumscribed the circumstances in which an issued licence could be revoked (as one would expect). There is no relevant analogy with the scheme under the Land Rights Act, and with the scheme in Pt VI in particular. There is but one exercise of power, which then compels the payment of money to an identified recipient. Comeau should in my opinion be confined to its facts, and the legislative scheme in issue.
175 I turn now to consider in more detail the authorities which in my opinion best expose the competing approaches to the scope of s 33(1), but also illustrate the point made in the respondent's submissions.
176 Lawrie v Lees (1881) 7 App Cas 19 concerned the meaning of the phrase "from time to time" in an Act (s 3 of Sir H. Meux's Settled Estate Act 1863 (UK)) dealing with the ongoing administration of the business affairs of Sir Henry Meux. Section 3 conferred a discretionary power, in the nature of a power of attorney, on the Lord Chancellor to:
from time to time, so long as the said Sir Henry Meux and his estate shall continue to be subject to the jurisdiction in lunacy, order or direct to be done, permitted and suffered with respect to the business …
and otherwise in relation to the said business and the affairs and concerns thereof, all and whatsoever Sir Henry Meux, if of sound mind, might do, permit or suffer or concur in doing, permitting or suffering with respect to the same.
177 It was in this context that Lord Penzance made the well-known comments which Perram J reproduces at [50] of his Honour's reasons, and on which the appellants rely.
178 As Perram J notes at [51], there is no reasoning exposed that leads to the (obiter) meaning Lord Penzance proffers. I respectfully agree. To this, I add the observation that his Lordship's comments must be read in their context. That context was a statutory power directed expressly to the administration of the (considerable) business affairs of one person. The decisions to be taken in that context would often be of a contractual character, as the very dispute in Lawrie v Lees makes clear. If not contractual, then the decisions would encompass the multiplicity of decisions to be made in the running of a business: or indeed, of many businesses. In that context it is hardly surprising Lord Penzance spoke of the phrase "from time to time" involving an ability to "add something to", "take something from", or "reverse" a decision altogether. His Lordship was speaking of making decisions, on behalf of an incapacitated individual, about running businesses, including entering into contracts and other kinds of transactions. His Lordship was not describing, nor purporting to describe, what the phrase "from time to time" might mean in other settings, and in particular in the exercise of public power.
179 Finally, the language used by Lord Penzance at 29-30, in the passage cited in Perram J's reasons, should be carefully noted. His Lordship spoke of the phrase "from time to time" having a protective function in respect of the repository of the power. Protective in what sense? In the sense of protecting the repository from the risk "of having completely discharged his duty when he has once acted". Two observations should be made about this characterisation. First, as the context in Lawrie v Lees illustrates, his Lordship was concerned to "protect" the repository of the power so that the repository could perform what was on any view a beneficial activity for the incompetent person. His Lordship's remarks about the scope of the phrase "from time to time" were made in the context of amplifying, for a beneficial purpose, the repository's powers. Second, his Lordship was concerned to ensure that a person given a fiduciary function, indeed, a fiduciary duty, had sufficient power to perform that fiduciary duty in circumstances of ongoing need. That is, his Lordship was concerned with the performance of a duty, and a duty with complex and ongoing content.
180 In contrast is the case of Re 56 Denton Road, Twickenham [1953] Ch 51. I consider this case to be of more relevance. It concerned an assessment of compensation by the War Damage Commission, payable to the plaintiff in relation to damage to her house during the Second World War. The Commission initially informed the plaintiff her house was classified as a total loss, then reviewed that classification to a partial loss. The compensation payable to the plaintiff for "costs of works" on a partial loss basis was almost four times the compensation payable for total loss. Having notified the plaintiff it would proceed on a partial loss basis, and the plaintiff having agreed, the Commission then subsequently informed the plaintiff it had reviewed the classification and was reverting to a "total loss" compensation basis. I pause here to note that in Professor Campbell's description, the decision and the notification (and acceptance by the plaintiff) would, it seems, mean the partial loss classification was a "perfected" administrative decision. Whether or not that conceptual terminology is ultimately of assistance in understanding how one decides whether a power or function is subject to an implied authority to revoke or recall it, noting that the decision was "perfected" or complete demonstrates some of the other conceptual underpinnings at work: finality and certainty.
181 On the plaintiff's challenge to the Commission's "review" and second decision to reclassify her property as a total loss, Vaisey J held the Commission had no power to revoke or recall its first decision. His Lordship at 56 described the defendants' argument in the following terms:
And they say that they have a perfect right to change their minds as their policy changes or as fresh evidence comes to light or further advice is given to them by their technical advisers, and that unless a determination of theirs has been acted upon in some way so as to raise a case of estoppel, they can go on altering it, as, and as often as, occasion arises.
182 There must be, in this, some resonance with the appellants' contentions in the present case. Although here we are concerned with a direction to pay, and then a revocation of that direction, in principle the appellants' arguments must be the same if the situation were reversed. A direction not to grant funds to a particular applicant could be changed by a new Minister into a direction to pay. And if the Minister changed again before the funds were in fact paid, on the appellants' contentions the third Minister could make a lawful decision to refuse to pay monies. On the appellants' argument, it could be based on a broad policy change, but it could also be based simply on the view of the Minister about who was the most meritorious recipient. If there was sufficient administrative delay in funds being paid, there could be several Ministerial changes of mind and that would, on the appellants' case, be lawful. I do not accept Parliament intended the scheme to operate in that way.
183 Vaisey J did not accept the Commission's arguments. Rather, his Lordship accepted, and repeated in his reasons, the propositions put on behalf of the plaintiff (at 56-57):
… where Parliament confers upon a body such as the War Damage Commission the duty of deciding or determining any question, the deciding or determining of which affects the rights of the subject, such decision or determination made and communicated in terms which are not expressly preliminary or provisional is final and conclusive, and cannot in the absence of express statutory power or the consent of the person or persons affected be altered or withdrawn by that body. I accept that proposition as well-founded, and applicable to the present case. It is, I think, supported by Livingstone v. Westminster Corporation and Robertson v. Minister of Pensions.
(Footnotes omitted.)
184 No argument based on the equivalent of s 33(1) (being s 32 of the Interpretation Act 1889 (UK)) was apparently put to the court, despite Lawrie v Lees.
185 Livingstone v Westminster Corporation [1904] 2 KB 109, upon which Vaisey J relied, concerned a claim for compensation by the plaintiff, upon the abolition of the parish office held by him (a position as surveyor) under the Local Government Act 1899 (UK). The council, which made the decision to abolish the office, told the plaintiff to make his compensation claim based on an aggregation of his salaries and emoluments for a period of five years from the date of the abolition of his office. The plaintiff did this, his claim was approved, and the compensation (an annual allowance) was paid. Subsequently the council's auditor formed the view there were several flaws (the details of which are immaterial for present purposes) in the allowance the council had determined to pay. The council purported to rescind the resolution approving the payment to the plaintiff and replace it with a lesser amount. The plaintiff's argument was that the council had no power to rescind the first resolution. Buckley J (at 120) agreed with the plaintiff's argument even if, as the council submitted, on review the first compensation allowance arrived at was factually incorrect, and excessive:
So soon as the resolution of August, 1901, was validly passed, there arose an obligation, which under s. 120, sub-s. 6, of the Act of 1888 was a specialty debt, enforceable as if the council had entered into a bond to pay the 5181. 12s. 4d. I find no power in the council to go back and relieve themselves from an obligation thus rendered binding upon them.
186 Buckley J held the plaintiff was entitled to recover the amount of compensation payable under the first resolution. Again, Lawrie v Lees, and the kinds of arguments which flow from that decision, do not appear to have been put to the Court.
187 A contrasting case is R v District Council of Berri (1984) 36 SASR 404, a decision of the Full Court of the Supreme Court of South Australia. It was a planning case, concerning the grant of planning permission upon a particular condition, which condition the Council later sought to revoke. The plaintiff contended the Council had no power to modify, vary or extend the conditions of its initial consent. At first instance, White J agreed, finding that the condition "once fixed and communicated, is irrevocable" (at 412). On appeal, the Full Court disagreed, and found there was an implied power to revoke the impugned condition. Legoe J drew the implication from the scheme and purposes of the legislation itself (the Planning and Development Act 1966-1967 (SA)) and did not rely on the equivalent to s 33(1): namely s 37 of the Acts Interpretation Act 1915-1981 (SA), as it was then called. Cox J (with whom King CJ agreed) also did not need to consider the operation of that provision.
188 Cox J did not agree with the Council's submission that it had some generalised implied power of revocation. His Honour said (at 416):
Sub-section (5) of s. 41 provides (to take a typical case) that the owner of land that is subject to interim development control may not erect a building without the consent in writing of his local council. That implies a decision by the council and its written notification to the owner. If the council has merely resolved to grant its consent but the necessary notification has not yet been given to the owner, the formal act required by sub-s. (5) will not have occurred and it will be open to the council to rescind its earlier decision. Ex Parte Renouf; Shanahan v. Strathfield Municipal Council. However, once the council has notified the owner of its consent in writing, it has fulfilled its statutory function. It may afterwards regret its decision, it may possibly by following its rescission procedures formally disavow what it has done, but it cannot effectively claim that it did not give the owner the consent in writing that s. 41 requires.
(Footnotes omitted.)
189 At 57, Cox J referred to Re 56 Denton Road as an example of this principle in a non-planning context. However, his Honour did find that a particular provision, dealing with revocation of conditions, empowered the Council to do what it had done: see 418-420. In other words, the source for the implication of power was the Act in question, not the interpretation statute.
190 Southlink Pty Ltd v WorkCover Corporation of South Australia [2009] SASC 175; 104 SASR 172 again reveals different judicial approaches to re-exercises, or further exercises, of power, not all involving the application of equivalent provisions to s 33(1). The case concerned a challenge to an increase by WorkCover in a supplementary levy payable by the applicant to WorkCover. The facts and numerous judicial review grounds were complex, but the material circumstance was that there was a decision by a delegate that a supplementary levy found to be payable by Southlink should be struck at a particular figure, and then a decision by a different delegate that the supplementary levy should be increased. Both decisions were challenged on various grounds. Relevantly, the majority (Bleby J and White J) held that the relevant empowering provision (s 67 of the Workers Rehabilitation and Compensation Act 1986 (SA)) did not authorise an increase in the levy during its term. Bleby J generally agreed on this matter with White J who found (at [219]) that s 67, read with other empowering provisions, authorised the imposition of a single supplementary levy for a specified period which could not be increased during the period of its application. White J held the second delegate had "ignore[d] this limitation" on the power under s 67.
191 Kourakis J dissented, and it was his Honour who employed the South Australian equivalent of s 33(1) (s 37 of the Acts Interpretation Act 1915 (SA)) in determining the scope of the power in s 67 of the South Australian Act. His Honour referred to Parkes Rural Distributions Pty Ltd v Glasson (1986) 7 NSWLR 332, which I deal with below, and to Day v Hunkin [1938] SASR 121, a South Australian decision to which I also refer below. His Honour concluded (at [346]) that the nature and subject matter of the power in s 67 meant Parliament did not intend for it to be exercised only once. Of the state of authorities on a provision such as s 37, and in particular the decision in Day v Hunkin, Kourakis J said (at [343]):
Section 37 therefore plainly allows a power to be exercised for the purpose of revoking an earlier determination and making a further determination which disadvantages a person whose rights are affected by those determinations.
192 With respect, I do not consider the authorities stand for a proposition as broad as that.
193 Day v Hunkin dealt with a challenge by Mr Day to a reduction of his salary after he had accepted and commenced, in 1930, a five-year term as Chairman of the South Australian Pastoral Board. It was an appointment made by the South Australian Cabinet and approved by the Governor in Council, duly notified in the South Australian Government Gazette. When notified of his appointment, the plaintiff was told he was appointed "at the salary of £1,000 per annum, first division professional section minimum £1,000, maximum £1,000 for a term of five years dating from and including the 1st February 1930" (see Day v Hunkin [1937] SASR 453 at 430). The Governor in Council approved the recommendation of the Public Service Board that the plaintiff's salary should be £1,000 per annum, however seven months later the plaintiff's salary was reduced to £900 per annum and later was reduced to £800. The plaintiff contended there was no power to reduce his salary while he held office as he was appointed for a fixed term. The defendant relied on s 37 of the Acts Interpretation Act 1915 (SA) as implying a power in the provision of the Public Service Act 1916 (SA) under which the plaintiff's salary was fixed (s 27) to alter, including to reduce, the plaintiff's salary. Section 27 relevantly provided that the salary of an officer of the public service was to be "determined by the Governor on the recommendation of the Board".
194 The trial judge held that s 37 did not apply to empower the salary reduction. After doubting the applicability of s 37 for reasons not presently relevant, Cleland J said (at 459):
Even if sec. 37 of The Acts Interpretation Act applies in its fullest extent it only operates as an extension of a power in order to avoid the implication that when once it is exercised it is necessarily exhausted.
195 Cleland J's decision was overturned on appeal: [1938] SASR 121. It may be worthwhile recalling this decision was given during the Great Depression. Angas Parsons J (at 125) referred to the exigencies likely to arise which may require alterations to the salaries of public servants and did not consider the situation of those appointed for a fixed term as a distinguishing feature. His Honour said (at 125):
There is always the possibility of an increase or decrease in the cost of living, and in the ordinary course of things these alterations may have to be reflected in the salaries of the public service. Those and other circumstances make it reasonable, perhaps essential, that the salaries of public servants should be altered as occasion may demand. Moreover, there are times of stress as regards the State's finance. There is nothing in sec. 27 which excludes the power of the Board to recommend a variation of the salary, or to prevent the Governor from determining from time to time the salaries to be paid to particular officers or classes of officers. The nature of these powers requires an interpretation which is flexible and practicable. No other construction is possible if the powers are to be effectively exercised. In The Australian Boot Trade Employees' Federation v. Whybrow & Co. and Others, (1910) 11 C.L.R. 311, Isaacs J. said, at p. 337: - "It is true that the grant of a power carries with it the grant of all proper means not expressly prohibited to effectuate the power itself. …["]
196 Angas Parsons J did not rely on s 37 of the Acts Interpretation Act 1915 (SA).
197 Napier J did rely on s 37 for the asserted implication (at 127), but did so by reference to general considerations, and to the text and purpose of the statute concerned. Napier J said at 127-128:
In my opinion, there are cogent arguments based on reason and convenience in favour of this construction. The power to increase the salary may be absolutely necessary if the State is to retain the services of the officer, and, on the other hand, the power to effect the reduction of salaries may be necessary in order to adjust expenditure and make ends meet. It may be possible to read the proviso to sec. 27 (1) as applicable to a power which is exercisable once and for all, but I think that the proviso is much more consistent with the intention to subject these salaries to periodical revision. It is difficult to see why the salaries under sub-sec. 1 should be unchangeable when the salaries under sub-sec. 2 are clearly subject to revision. Sec. 14 of the Public Service Act 1916 shews that when Parliament intended the salary to be fixed, at or before the commencement of a term of office, it has said so in language which puts the matter beyond doubt.
198 Richards J, noting at 132 that it was "a matter of common knowledge that those general reductions were made in consequence of the financial stringency and economic depression under which the State was suffering", also found s 37 removed any doubt that the Governor had power to increase or reduce the salary of a person holding office as Mr Day did (at 131-132).
199 The absence of a contractual relationship between Mr Day and the State appeared to weigh heavily in the Court's assessment. However, in terms of the construction of the power, it is not insignificant that this case concerned a "determination" of an ongoing entitlement - that is, to a salary, rather than a "once off" payment. The main point to be taken from Day v Hunkin, in my opinion, is that it was not a revocation or cancellation case at all: it was an alteration case. The import of a power to determine a person's salary being exercisable from "time to time" so as to alter that salary is far removed from the statutory power in issue in this appeal. Further, as the judgment noted, the general economic situation facing South Australia weighed on the Court's approach to construction.
200 The High Court dismissed an appeal from the decision of the Full Court, holding that, on its proper construction, the power was one which could be exercised from time to time to vary a salary and that it was unnecessary to rely upon s 37 to reach that conclusion: Day v Hunkin [1938] HCA 47; 61 CLR 65. Latham CJ stated that, while s 37 applied to the power, it was "not necessary to call [it] in aid" to conclude that the power could be re-exercised (at 77). McTiernan J expressed the same view (at 80). Dixon J did not refer to s 37 at all, saying it was "evident" the power was not confined in the way Mr Day contended (at 77). The Court's decision demonstrates that careful regard should be paid to the particular statutory scheme when determining whether a power may be re-exercised to vary the effect of a previous decision, and that provisions such as s 33(1) (or, there, s 37 of the South Australian legislation) may have a limited role to play in that process.
201 Parkes concerned the issuing of consecutive certificates under the Petroleum Products Subsidy Act 1965 (NSW), in relation to a scheme granting financial assistance to distributors to facilitate the sale of petroleum products to be sold in rural areas at prices comparable to those in capital cities. The certificates related to a situation where an authorised officer had certified, as he was empowered to do, that an amount paid to a distributor in excess of what the officer was satisfied should have been paid was repayable to the State of New South Wales.
202 The relevant power was expressed in the following terms:
Where an authorized officer is satisfied that an amount paid to a person under this Act … was not payable to that person or exceeded the amount that was payable to that person, he may give a certificate in writing that the amount paid or the amount of the excess, as the case may be, is repayable by that person to the State.
203 The first certificate (issued by the first defendant in February 1982) certified that $152,317.70 was repayable by the plaintiff to the State. The second document (issued in November 1984 by the second defendant) certified that $134,065.27 was repayable by the plaintiff. The first certificate was found by the trial judge to have been issued in circumstances which involved a denial of natural justice and so was held to be invalid. The consequential argument put by Sir Maurice Byers QC on behalf of the plaintiff was the first certificate remained valid and operative until found to have been issued in circumstances involving a denial of natural justice; that therefore it was legally impossible to have two certificates in relation to the same distributor and the same grant payments imposing two different and inconsistent repayment obligations, meaning the second certificate was a nullity. The trial judge rejected the argument and held that what had, in law and fact, occurred was the first certificate had been withdrawn and replaced by the second certificate. This finding relied on s 32 of the Interpretation Act 1897 (NSW). This was the provision that replaced s 10 of the Acts Shortening Act 1852 (NSW) being, it would appear, one of the earliest examples of this kind of implication provision, and predating any such provision existing in English statute law. The trial judge's opinion was upheld on appeal. Glass JA (with whom Samuels and Priestley JJA agreed) stated at 335-336:
It has been held that a power exercisable from time to time may be so exercised as to add to, subtract from or reverse the result of the previous exercise: Lawrie v Lees (1881) 7 App Cas 19 at 29. In other words the donee of such a power is never functus officio. Accordingly the existence of the first certificate does not render void a second certificate issued in lieu of it.
204 This statement is one of the more absolute renditions of what Lawrie v Lees is understood to stand for. To say that a repository is "never" functus officio would, if applied as absolutely as it is expressed, render administrative decision-making subject to endless uncertainty and without finality, including (as in Parkes) where the legal rights and liabilities of individuals are concerned. There is no suggestion that provisions such as s 32 of the New South Wales legislation, or s 33(1) in the Commonwealth legislation, are intended to obliterate finality in administrative decision-making, unless a contrary intention is found in the legislation.
205 I respectfully agree with the doubts expressed by Nettle JA (as his Honour then was) in Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301; 25 VAR 449 at [83]-[85] about these aspects of the Court of Appeal's reasoning, especially in its reliance on Lawrie v Lees.
206 One way to mitigate the absoluteness of Glass JA's statement is to emphasise the importance of determining whether a contrary intention exists. Glass JA did not refer to this aspect of s 32 of the New South Wales legislation. However, in my respectful opinion that would still be giving provisions such as s 32 (and s 33(1) in the current appeal) too much work to do. Another is to read Glass JA's statement as subject to an implicit qualification concerning the reason that a power may be capable of re-exercise. Here, for example, it would appear the second certificate was issued because the second defendant, discharging his duty under the relevant provision, had reviewed the liability imposed by the first certificate and considered it not in accordance with the legislative scheme. The report of the case does not disclose whether the issue of these certificates was subject to any form of review or appeal, whether in the empowering legislation or elsewhere. Rather it appears from the summary given by Glass JA at 335 that the certificate created a debt due to the State. Again, it would seem that without some ameliorating power, the purpose of the scheme would not be advanced by a construction which did not accommodate review and revision of a certificate. A distributor would otherwise incur a debt that did not accord with its legal liability. On the facts there was a two-year gap between the two certificates, and the report does not reveal whether there were changed facts and circumstances leading to the second certificate.
207 Further, what occurred in this case is not properly characterised as a revocation. A revocation, in relation to a power such as the one at issue in Parkes, would have occurred if there had been a reversal of the first certificate and a finding that no amount was due to the State. Instead, the same power was exercised in the same way and for the same purpose, and what occurred was that a different debt was substituted. That is an alteration or an amendment, but it is not a revocation. It was not, to adopt the description used by Nettle JA in Kabourakis at [86], an "annihilation" of the previous exercise of power. In the present circumstances, the Minister's second decision under s 64(4) is aptly described as an annihilation of the first direction, and on the evidence intended to be so.
208 In my respectful opinion, Glass JA's statements about "reversal" of a decision are obiter in his Honour's reasoning in Parkes, and should not in any event be applied, in their broad and absolute tenor, to all statutory powers (or functions) where there is no express revocation or reversal power. To do so would unseat the certainty and finality of administrative decision-making where that decision-making affects the rights, liabilities or interests of persons affected by the power.
209 The need for certainty and finality was a central theme of the Full Court's decision in Watson, in a situation concerning, as I have said, visa cancellation under the Migration Act. Mr Watson's visa was cancelled by the Minister in March 2001, on the basis that Mr Watson did not pass the 'character test' in the Migration Act by reason of his criminal record. The Minister did so exercising the personal power reposed in the Minister by s 501(2) of the Migration Act. However, after the Minister's decision, the High Court handed down its decision in Re Patterson; Ex Parte Taylor [2001] HCA 51; 207 CLR 391, in which the Court found that the Migration Act did not authorise the Minister to deport a British citizen who had arrived in Australia prior to 1973. Mr Watson was thus one of the individuals who, temporarily, enjoyed the benefit of the decision in Patterson before it was overruled in Shaw v Minister for Immigration and Multicultural Affairs [2003] HCA 72; 218 CLR 28.
210 As a result of Patterson, the Department informed Mr Watson that it would "no longer be proceeding with your removal" after he served his sentence of imprisonment. The reprieve lasted about three years, then in March 2004, Mr Watson (who was by this time in prison for a different offence) was informed that, because of the decision in Shaw,
the decision of the Minister to cancel your visa under section 501 of the Migration Act 1958 stands and you are liable to be detained under s 189 of the Migration Act 1958 and removed from Australia.
211 The primary judge held that the Minister had revoked the cancellation decision in 2001 (that is, as a result of Patterson), and this had been communicated to Mr Watson, restoring a visa to him. Therefore, the primary judge held, the Department (and the Minister) were incorrect to advise Mr Watson in March 2004 that the cancellation decision "stands", because it had, in fact and law, been revoked. In reaching that conclusion, the primary judge held that a revocation power should be implied into the Minister's cancellation power by reason of s 33(1) of the Acts Interpretation Act.
212 Ironically, it was the Minister in Watson who, on appeal, contended s 33(1) did not apply to the cancellation power so as to imply a power to revoke a cancellation decision. The Full Court agreed. All three judges gave slightly different reasons for reaching that conclusion. Dowsett J appeared to assume, it would appear on the basis of the decision in Immigration and Ethnic Affairs, Minister for v Kurtovic (1990) 21 FCR 193, but without any express consideration, that s 33(1) extended to implying a power to revoke a decision. His Honour however located a contrary intention in the broader scheme of the Migration Act, and in particular the detailed regime relating to the grant of visas, which his Honour considered could be undermined by implying a power to revoke a cancellation decision, thus essentially granting a person a new visa. Hely J found (at [15]) that, unlike other cancellation provisions which referred to revocation in certain circumstances:
There is, however, nothing in the Act which implies that a visa cancellation decision under s 501, and its consequences, are subject to a later Ministerial change of mind.
213 Hely J did consider (at [18]-[23]) the scope of s 33(1). His Honour noted (at [19]) the view of Branson J in Dutton v Republic of South Africa [1999] FCA 498; 162 ALR 625 at 636 that, unlike s 33(3), s 33(1) does not refer to the withdrawal or cancellation of the exercise of a power. His Honour then noted the different approach taken by Gummow J in Kurtovic. However, Hely J stated (at [22]):
It is true that in the passage quoted, Gummow J speaks in terms of a power to make a second deportation order "so as to revoke or revive" a deportation order, and refers to a reconsideration of decisions previously made. But these observations were obiter, as in Kurtovic it was not a second exercise of the s 12 power which revoked the first. As a result of the exercise of the s 20 power to revoke, the s 12 power remained available for re-exercise at the later date.
214 At [23], his Honour continued, in my opinion effectively disagreeing with the view taken by Gummow J in Kurtovic and adopting a position closer to that of Branson J in Dutton:
In my view, s 33(1) of the Interpretation Act (assuming it applies) does not have the effect that once there is a valid exercise of the s 501(2) power to cancel a visa, the visa can be effectively restored to the former holder by a second exercise of that power. Whilst the Minister has a discretion whether or not to exercise the s 501(2) power, the power in question is simply a power to cancel a visa which, if validly exercised, results in the former holder acquiring the status of an unlawful non-citizen with the consequences prescribed by the Act. There is no occasion for the re-exercise of the power once it has been validly exercised.
(Emphasis added.)
215 Thus, his Honour did not see s 33(1) as having the generalised broader effect described by Gummow J in Kurtovic, nor for that matter attributed to the like New South Wales provision in Parkes. Nor is this description of the effect of s 33(1) consistent with the broader and more absolute proposition stated by Kourakis J in Southlink. That Hely J was speaking of the scope of s 33(1) is apparent from the next paragraph, where his Honour said:
If s 33(1) did have that effect, I would conclude that the Act discloses a contrary intention so far as the power to cancel a visa is concerned.
(Emphasis added.)
216 Lander J, like Hely J, was in my opinion more cautious about the scope of s 33(1) than Gummow J had been in Kurtovic. His Honour carefully examined the scheme of the Migration Act in relation to cancellation and like powers, and where Parliament had expressly conferred a power of revocation.
217 Referring to three previous single judge decisions (Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429, Burgess v Minister for Immigration and Multicultural Affairs [2000] FCA 926; 101 FCR 58, and VQAR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 900), his Honour concluded (at [138]) the provisions of the Act to which he had referred evinced a contrary intention to the proposition that the cancellation power in s 501(2) could be exercised from time to time as the occasion required. However, his Honour had this to say (at [117]) about the scope of s 33(1) , with which I respectfully agree:
The effect of s 33 is that unless the Act creating the power indicates a contrary intention the power may be exercised as often as is necessary to fulfil the purpose for which the power was conferred. Section 33(1) does not widen the power given by s 501 of the Act or allow it to be exercised more often than the purpose of that section permits.
(Emphasis added.)
218 In Dutton, s 33(1) was employed in argument by Mr Dutton in relation to a notice issued by the Attorney-General under s 16(1) of the Extradition Act 1988 (Cth). It was contended that, in dealing with Mr Dutton's request that the s 16 notice be withdrawn, the Attorney denied him procedural fairness. The Attorney contended there was no power to withdraw a s 16 notice. Mr Dutton contended the implication in s 33(1) applied. Branson J agreed with the Attorney's submissions. Noting that there was no express power to withdraw, and noting the four-stage scheme of the Act and the dependency of subsequent stages on the existence of a s 16 notice, Branson J said (at [32]) that s 33(1) does not refer to the withdrawal or cancellation of an exercise of power. It appears her Honour's attention was not drawn to Lawrie v Lees, nor to Kurtovic, nor to cases such as Parkes. Nevertheless, her Honour's approach is in my respectful opinion correct, and absence from the text of s 33(1) of express words relating to revocation, cancellation, withdrawal or reversal of an exercise of power tells against the extended scope given to s 33(1) in obiter statements in cases such as Kurtovic and Parkes.
219 Minister for Immigration and Multicultural Affairs v Bhardwaj [2000] FCA 789; 99 FCR 251 involved a denial of procedural fairness to an applicant who, at the last moment, sought to inform the Immigration Review Tribunal that he wished to appear on his review and present evidence and arguments. His review concerned a cancellation of his student visa. The applicant's communication was not brought to the attention of the Tribunal member constituting the Tribunal, who went ahead and made a decision affirming the delegate's cancellation decision, including making the following finding, accepted by all parties to be incorrect:
On 15 September there was no appearance by the Applicant, his immigration agent nor was there any indication or advice in relation to the failure to attend.
220 The applicant's migration agent made representations which resulted in the Tribunal allocating a hearing date to the applicant, notwithstanding it had made and communicated its decision on the review. At the hearing, evidence was adduced to satisfy the Tribunal that the delegate's decision should be set aside, and that is what the Tribunal did. Relying on the decision of French J (as his Honour then was) in Sloane, the Minister contended the Tribunal was functus officio once it had made the first decision and that the second decision should be set aside. The Minister also relied on the decision of Goldberg J in Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301, in which his Honour held a tribunal was functus officio once it made its decision on a review and that it could not reconsider that decision. The Full Court held neither decision was applicable because the Tribunal was not "reconsidering" its decision: rather, it had always intended to give the applicant a chance to attend a hearing which, due to an oversight, did not occur. Beaumont and Carr JJ referred to and relied on s 33(1) and Gummow J's reasons in Kurtovic, and at [46] said that:
within the meaning of s 33(1) of the Acts Interpretation Act, the "occasion" "requires" that both the power and the duty of the Tribunal to review the matter should be exercised and performed at the time when the Tribunal was made aware that, in purportedly making its September decision, it had proceeded, in ignorance, upon the false assumption that the respondent had elected not to ask for an oral hearing.
221 Lehane J dissented. His Honour said at [58]:
Generally, s 33(1) of the Acts Interpretation Act will apply in relation to a statutory power or duty. But the statutory context may reveal a contrary intention. In my opinion, the present statutory context does so. It is one which, plainly, places a high value on certainty. There are strict time limits, detailed provisions governing the conduct of review proceedings and precise requirements as to the way in which the Tribunal is to record its decision and the reasons for it and is to notify and publish its decisions. There is then a limited form of judicial review, for which application may be made only within a time limit of twenty-eight days which cannot be extended. It would, in my view, be incongruous with that scheme for the Tribunal to have, in relation to a particular application for review, a power from time to time, as occasion requires, to make (and revoke) decisions. The considerations referred to by French J in Sloane v Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 414; (1992) 37 FCR 429 at 442-444 and by Goldberg J in Jayasinghe v Minister for Immigration and Ethnic Affairs [1997] FCA 551; (1997) 76 FCR 301 at 311-315 are, to my mind, compelling. The recent majority decision of the Full Court in Semunigus v Minister for Immigration and Multicultural Affairs [2000] FCA 240 is consistent with the approach taken in those cases. Certainly it is true that neither French J nor Goldberg J referred to s 33(1) of the Acts Interpretation Act and the observations of Goldberg J were directed to the question whether the Refugee Review Tribunal, having made a decision, was functus officio. But, as Gummow J makes clear in Kurtovic and as is implicit in the judgment in Jayasinghe, to say that a decision-maker is functus officio is simply to say that the decision-maker, having made a decision, does not have power to revoke it and make a new decision. And considerations, arising from a statutory context, which lead to a conclusion that, having made a decision, a decision-maker is functus officio substantially correspond with those which indicate an intention that s 33(1) is not to apply.
222 To that last view might be added the proposition that, as the approach in some of the authorities demonstrates, the text, context and purpose of a particular statute indicate, without the need to resort to s 33(1), whether or not there can be repeated exercises of a power, or repeated performances of a function, and in what circumstances, as well as whether there is power to revoke, reverse or undo an exercise of power or performance of a function.
223 Bhardwaj was decided on a different basis by the High Court, turning on whether a decision-maker can recall a decision affected by jurisdictional error (as the High Court described the denial of procedural fairness in this case): see Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 at [43]-[44], [53] (Gaudron and Gummow JJ, expressly disclaiming reliance on s 33(1)), [63] (McHugh J agreeing), [149]-[156] (Hayne J, to similar effect).
224 This brings me to what I consider to be the two most relevant prior authorities: Kurtovic and the Victorian Court of Appeal decision in Kabourakis. In summary, I prefer the approach taken by Nettle JA in Kabourakis, although on close analysis, in my opinion it may well be the case that Gummow J in Kurtovic was not making an absolute statement about s 33(1) (even as obiter) in the way some subsequent authorities have perceived what his Honour there said.
225 Mr Kurtovic had been convicted of an offence (manslaughter) which exposed him to deportation under the Migration Act and indeed such an order was made. However, after representations, the Minister decided to revoke the deportation order and instead "warned" Mr Kurtovic that any further conviction rendering him liable to deportation would "weigh heavily" against him when the Minister reconsidered his case. This revocation occurred under s 20 of the Migration Act (as it then stood), which contained an express power of revocation. At this time, Mr Kurtovic was seeking parole in relation to his manslaughter sentence. His parole application, and appeal, were refused, however in doing so the Supreme Court of New South Wales made some observations about his offending which caused the Minister to reconsider whether Mr Kurtovic should be deported. Acting on a Departmental recommendation, the Minister decided to issue a further deportation order. It was common ground there was no material change in circumstances - in the sense that Mr Kurtovic had not committed any further offences, or engaged in any further conduct than existed at the time the first deportation order was revoked. It should be noted that the relevant deportation power (at that time, in s 12 of the Migration Act) was expressed in a way which, provided the preconditions were satisfied (as to non-citizenship and conviction for an offence within the precondition), the Minister had a broad discretionary power:
… the Minister may order the deportation of the person.
226 It should be recalled that the challenge by Mr Kurtovic involved several grounds, including an argument that the Minister was estopped from reconsidering whether to deport him. The estoppel argument had succeeded before the primary judge, but did not succeed in the Full Court. It is apparent from the Court's reasons for judgment that the estoppel arguments are seen as connected to the resolution of the power argument that involved s 33(1). On the latter issue, and relevantly for present purposes, Mr Kurtovic contended that the power conferred by s 12 had been exhausted by the making of an initial deportation order (in July 1984) and its eventual revocation (pursuant to s 20, in November 1985), at least where there were no significant changes in circumstances relevant to the exercise of the power conferred by s 12 between the date of the revocation and the making of the second deportation order in January 1988. Thus, Mr Kurtovic contended s 12 provided no authority for the making of the second deportation order.
227 It can be seen that Kurtovic is not a case about revocation. It is a case about the authority to re-exercise the same statutory power. It is also a case about re-exercise of a power in the same way, or with the same outcome, as the first exercise. No party contested the revocation in November 1985 (because it was undertaken pursuant to s 20 of the Migration Act as it then stood, which expressly authorised revocation). The contest was over the exercise, for the second time, of the power in s 12 to make a deportation order in relation to the same individual and on the basis of, in substance, the same circumstances.
228 Neaves J found (at 195) that:
There is nothing in the language of s 12, or in the context in which it appears, to warrant the conclusion that Parliament intended that, absent any change in relevant circumstances, the power was to be regarded as spent upon its initial exercise in relation to a particular non-citizen. The power is, in my opinion, clearly one which may be exercised from time to time as occasion requires.
229 This statement by Neaves J would apply, for example, if the first exercise of power resulted in a determination that a person should not be deported. It is not a statement which expands, or alters, the nature or content of the power in s 12, in contrast to an implication that s 12 authorised revocation or reversal of a previous exercise of power. It proceeds, correctly in my respectful opinion, on the basis that the power to reverse, revoke or undo the making of a deportation order lies elsewhere in the scheme.
230 Ryan J also held the s 12 power was exercisable from time to time in relation to the same individual and the same circumstances. His Honour placed some weight on the nature of the power as a "public discretion" (at 200), and drew a link between the failure of the estoppel argument and the nature of the power as one exercisable from time to time. Ryan J agreed with the reasoning of Gummow J concerning why the Minister's power under s 12 had not been exhausted by its previous exercise.
231 It is apparent from Gummow J's reasons at 208 that his Honour also saw a connection between the rejection of the estoppel argument (assuming, contrary to his Honour's opinion, that there had been a sufficiently clear representation to trigger an estoppel) and the proposition that the power in s 12 was exhausted by one exercise in relation to a particular individual:
Rather, in the present case, the respondent seeks to prevent the appellant from making a decision within the latter's power which would have the effect of altering a previous intra vires decision. The respondent is then met with the objection that to allow an estoppel in this context would hinder or prevent further exercise of the statutory discretion.
232 And at 210:
The same limitation has been said by high authority to apply where there is no duty to act, but merely a discretionary power. This has been put on the basis that in a case of a discretion, there is a duty under the statute to exercise a free and unhindered discretion and an estoppel cannot be raised (any more than a contract might be relied upon) to prevent or hinder the exercise of the discretion; the point is that the legislature intends the discretion to be exercised on the basis of a proper understanding of what is required by the statute, and that the repository of the discretion is not to be held to a decision which mistakes or forecloses that understanding: see New South Wales Trotting Club Ltd v Municipality of Glebe (1937) 37 SR (NSW) 288; Cudgen Rutile (No 2) Pty Ltd v Chalk [1975] AC 520 at 533; Southend- on-Sea Corp v Hodgson (Wickford) Ltd [1962] 1 QB 416 at 423-425.
(Emphasis added.)
233 It is significant that, in this passage, Gummow J confines the principle to circumstances where the repository of the power has, on the first exercise of the power, "mistaken" or "foreclosed" a proper understanding of what is required of the repository in the exercise of the statutory discretion. That is, the policy in precluding an estoppel argument is to advance the lawful exercise of a discretionary power, even if through a re-exercise. This, of course, was the approach which later came to the forefront in Bhardwaj.
234 At 211, in the part of his Honour's reasons dealing with the concept of functus officio and the role of s 33(1), Gummow J continued to articulate the connection, although acknowledging the primacy of the statute in determining whether re-exercise could occur, even if:
… in any given case, a discretionary power reposed by statute in the decision maker may, upon a proper construction, be of such a character that it is not exercisable from time to time and it will be spent by the taking of the steps or the making of the statements or representations in question, treating them as a substantive exercise of the power. The result is that when the decision maker attempts to resile from his earlier position, he is prevented from doing so not from any doctrine of estoppel but because his power to do so is spent and the proposed second decision would be ultra vires. The matter is one of interpretation of the statute conferring the particular power in issue.
235 This, Gummow J continued (at 211), explains the decisions in Livingstone and Re 56 Denton Road. His Honour sought to distinguish Livingstone and Re 56 Denton Road, by reference to the decision of Rootkin v Kent County Council [1981] 1 WLR 1186, an authority relied on by the appellants before us. In Rootkin, Eveleigh LJ said (at 1197):
Counsel has argued that the decision to pay the fare was irrevocable, even if mistaken, and he has relied upon the principle in Livingstone v. Westminster Corporation [1904] 2 K.B. 109. That principle of irrevocability may well be applicable when there is a power or a duty to decide questions affecting existing legal rights. In Livingstone v. Westminster Corporation itself the council were concerned to assess compensation for loss of office, to which compensation the plaintiff had a right under the Local Government Act 1899. Generally speaking, however, a discretionary power may be exercised from time to time unless a contrary intention appears.
236 Lawton LJ had expressed a similar view at 1195. The parallels with the concepts underlying the doctrine of functus officio (especially their judicial antecedents) are apparent. Irrevocability is linked to the performance of a function or duty which brings finality to the determination of legal rights. What is and is not for this purpose a "right" is rather more narrowly confined than modern authorities determining whether an exercise of power (including discretionary power) affects the "rights or interests" of a person: see Annetts v McCann [1990] HCA 57; 170 CLR 596. Perhaps one explanation for such a rigid approach to irrevocability of the kind expressed by Lord Eveleigh may stem from the more fluid approach to judicial power in the United Kingdom than that which exists in Australia. To say, as it was put in Rootkin, that an administrator was determining an existing legal right would be a problematic statement in Australian law: see R v Kirby; Ex Parte Boilermakers Society of Australia [1956] HCA 10; 94 CLR 254 at 281-282 (Dixon CJ, McTiernan, Fullagar and Kitto JJ); South Australia v Totani [2010] HCA 39; 242 CLR 1 at [220] (Hayne J), [444] (Kiefel J).
237 The difficulty is that there is no clear distinction between statutory duties or functions and discretionary powers of this kind in the authorities (even in the English authorities). That is unsurprising given the spectrum and complexity of statutes under which powers and functions are conferred. The deportation and removal cases are an illustration. Those exercises of power, discretionary in nature, affect legal rights (notably, the right to liberty) but yet have been found not to be irrevocable, Kurtovic being but one example. Others include Re Chan and Minister for Immigration and Ethnic Affairs (1977) 17 ALR 432 and Dallikavak v Minister for Immigration and Ethnic Affairs (1985) 9 FCR 98 (discussed below). Of course, as I have noted above, those exercises of power do not, and could not in Australian law, determine an existing legal right, but they do affect the rights and interests of a person - so much is well established. That is why the distinctions made in cases such as Rootkin are unsatisfactory in the Australian context.
238 Gummow J also referred to the Full Court decision in Dallikavak and the decision of Smithers J sitting as a presidential member of the Administrative Appeals Tribunal in Chan, both decisions taking a similar approach to the deportation power in s 12. Again, however, it is apparent that these cases were dealing with a re-exercise of the power in circumstances where a revocation was supported by an express power in s 20 of the Migration Act. See, for example, the way the majority of the Court in Dallikavak expressed the point (at 103-104 per Northrop and Pincus JJ):
We would add that if the Minister, having made a deportation order, subsequently becomes aware of circumstances which lead him to doubt the correctness of his order, or to come to the view that its correctness might need lengthy re-examination, he may revoke the order. If that happened, the person affected would cease to be a deportee under the Act but would remain a prohibited non-citizen and be subject to all the restrictions imposed by the Act on persons of that status. If on re-examination the Minister is of opinion that the order should again be made, no new grounds are necessary, in our view: see the decision of Smithers J. in Re Chan and Minister for Immigration and Ethnic Affairs (1977) 17 ALR 432 at 441-442. See also Acts Interpretation Act 1901 (Cth), s 33(1).
(Emphasis added.)
239 Thus, one of the difficulties, in my respectful opinion, with the analysis in Kurtovic and its reliance on earlier authorities is the failure to distinguish clearly between cases where what was in issue was the power of revocation itself, and cases where what was in issue was a re-exercise. In the former case, a focus on the effect of such an implication on the rights and interests of those affected is understandable. In the latter, an effect on the rights and interests of those affected is precisely what the statute contemplates by conferring the power in the first place.
240 Kurtovic was really a case concerning re-exercise rather than revocation. There is also the difficulty that, where Gummow J expresses his conclusion (at 218), aside from noting that once its preconditions are satisfied s 12 "does not purport to constrain the way in which the discretion is exercised", there is no real analysis regarding why s 33(1) extends to implying a power to revoke or reverse a decision. His Honour is not, in my respectful opinion, in any event deciding that s 33(1) applies to expand the scope of s 12 in that way. Section 20 expressly provided for such a power.
241 There remains the decision of the Victorian Court of Appeal in Kabourakis to consider. Nettle JA gave the leading judgment, with Warren CJ and Chernov JA agreeing. The facts concerned a decision of a panel of a medical board constituted under Victorian legislation which determined that the appellant, a medical practitioner, had not engaged in unprofessional conduct. The complainant was dissatisfied and after an investigation the Victorian Ombudsman recommended the board re-open its investigation and reconsider the allegations against the appellant, which it did, by notifying the appellant there would be a further hearing. The appellant contended the medical board was functus officio and had no power to re-open its investigation, having already reached a conclusion on the allegations. The primary judge did not agree, but the Court of Appeal accepted the appellant's contention. At [47], Nettle JA concluded:
… the effect of the Act properly understood is that a finding of the panel is final and binding except upon appeal or review.
242 His Honour continued, at [48], to deal with what he considered to be the situation in relation to the exercise of statutory administrative powers:
Self evidently, an administrative decision has only such force and effect as is given to it by the law pursuant to which it is made. As was pointed out in Bhardwaj, parliament may give an administrative decision whatever force it wishes. Consequently, as the judge made plain, the question in this case comes down to whether the statute manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen. But, as was also said in Bhardwaj, as a rule a statutory tribunal cannot revisit its own decision simply because it has changed its mind or recognises that it has made an error within jurisdiction. More often than not, the requirements of good administration and the need for people affected directly or indirectly by decisions to know where they stand mean that finality is the paramount consideration, and the statutory scheme, including the conferring and limitation of rights of review on appeal, will be seen to evince an intention inconsistent with capacity for self correction of non-jurisdictional error. In the bulk of cases, logic and commonsense so much incline in favour of finality as to permit of no other conclusion.
(Footnotes omitted.)
243 Nettle JA indicated (at [49]) that Re 56 Denton Road was another example of this approach. His Honour then referred (at [50]) to a New South Wales decision in a similar vein:
More recently, in New South Wales, in Walter Construction Group v Fair Trading Administration Corporation [2005] NSWCA 65, Grove J was concerned with claims under a statutory building insurance scheme. His Honour said:
I do not construe that provision as vesting a power to make and unmake decisions infinitely. If power does not stretch to infinity, there must be in the circumstances of a particular case and "as occasion requires" a terminus. In this case it was reached with the communication of decision by the letter of 24 October 2002.
An application for leave to appeal was refused by the New South Wales Court of Appeal. Santow JA, with whom Sheller JA and Tobias JA agreed, referred with apparent approval to the passage set out above.
(Footnotes omitted.)
244 At [52]-[54], Nettle JA reviewed other authorities consistent with the approach he took. As the extracts in his Honour's reasons demonstrate, none of those authorities depended solely on the existence of a contrary intention for the purpose of s 33(1) or like provisions. Rather, their principal focus was the nature and context of the statutory power in issue.
245 Nettle JA then turned to Kurtovic, which he described as of "little assistance", firstly on the basis that it dealt with deportation, an area of administrative law his Honour described as "different to most others" (at [55]-[56]). With respect, I would disagree that deportation involves, at a level of administrative law principles applied in a statutory context, any substantive differences from other area of administrative law. Although, as his Honour observed, it is an area where statutory discretions are affected by changing policy considerations, there are many areas of public power where this is so. His Honour then also distinguished what he described as the "revenue cases", again largely by reference to the subject matter and context of the statutory powers, including discretionary powers, under consideration in those cases.
246 The general approach taken by Nettle JA - that is, to focus on the statutory context and purpose in an assessment of how the question of re-exercise of powers should be approached - is, however, one with which I respectfully agree. In my opinion, as I explain elsewhere in these reasons, those considerations explain (at least, by reference to the evaluation of the judges involved) why there is such a variety of approaches and outcomes apparent in the authorities. At [64]-[80], this was the task his Honour undertook in relation to the legislative scheme before the Court in Kabourakis.