MJD Foundation Limited v Minister of Indigenous Affairs

The legislative context 10 The legislative context is within a deceptively narrow compass. 11 The Aboriginals Benefit Account was established by s 5(3) of the Financial Management Legislation Amendment Act 1999 (Cth). It is "continued in existence" by s 62(1) of the Lands Rights Act. 12 Section 62 is within Part VI of the Land Rights Act. It is that Part which determines the manner in which monies deposited to the Aboriginals Benefit Account may be paid. It comprises ss 62 to 65. 13 Within Part VI, s 63(1) provides that "there must be credited to the Account, from time to time, amounts equal to the amounts of any royalties received by the Commonwealth or the Northern Territory in respect of a mining interest in Aboriginal land". Section 64 addresses the manner in which amounts may be debited from the Account. 14 Section 64 provides in relevant part as follows: … (4) There must be debited from the Account and paid by the Commonwealth such other amounts as the Minister directs to be paid or applied to or for the benefit of Aboriginals living in the Northern Territory. … (5A) The Minister may, by notice in writing, specify conditions on which a payment of an amount to a person under subsection (4) (including by way of a loan) is made. The notice is not a legislative instrument. (5B) If a condition on which a payment of an amount to a person under subsection (4) is made is breached, the Minister, on behalf of the Commonwealth, may: (a) if the payment is by way of a loan - recover so much of the loan as has not been repaid, and any accrued interest that has not been paid, as a debt in a court of competent jurisdiction; or (b) in any other case - recover the whole or a part of the amount as a debt in a court of competent jurisdiction. … (7) Amounts that the Minister directs to be debited from the Account under subsection (4), (4A) or (6) must be paid or applied in accordance with the direction. Section 64A confers a further discretionary power upon the Minister to direct the debit of "additional amounts" from the Aboriginals Benefit Account. Section 64B provides for the preparation of financial statements and s 65 provides for an "Account Advisory Committee". 15 Sections 33(1) and (3) of the Acts Interpretation Act provide as follows: (1) Where an Act confers a power or function or imposes a duty, then the power may be exercised and the function or duty must be performed from time to time as occasion requires. … (3) Where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws) the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument. ... Section 2(2) of the Acts Interpretation Act provides that the application of a provision of the Act, including s 33(1), "is subject to a contrary intention". 16 When addressing the question as to whether a power to order the deportation of a person pursuant to the Migration Act 1958 (Cth) could be exercised from time to time, Gummow J in Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 211 observed: There was "an inconvenient common law doctrine of somewhat uncertain extent to the effect that a power conferred by statute was exhausted by its first exercise": Halsbury's Laws of England, (1st ed), Vol 27, p 131. However, s 33(1) of the Acts Interpretation Act 1901 (which was modelled upon s 32(1) of the Interpretation Act 1889 (UK)) provides that where an Act confers a power or imposes a duty, then unless the contrary intention appears, the power may be exercised and the duty shall be performed "from time to time as occasion requires". But 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 … Albeit not part of the ratio of his Honour's decision, his Honour went on to conclude (at 218) as follows: In the present case, there is nothing in the Migration Act which suggests an intention contrary to the presumption embodied in s 33(1) of the Acts Interpretation Act 1901, to which I have already referred. Accordingly, the power to make a deportation order is exercisable from time to time, so as to revoke or revive a deportation order previously made, whether on the same facts as before or otherwise. Even if the facts upon which the original decision was based remain constant, it may be the policy of the donee of the power which changes and thus requires a reconsideration of decisions previously made … The significance of a change in either the facts or in ministerial policy would go merely to the merits of the decision upon which the Court is not entitled to decide. The appellant could not therefore have been functus officio, and an estoppel could not be allowed which would have the effect of stifling the future exercise of the statutory discretion …

A decision & the power to impose conditions 17 Three issues upon which the parties were in agreement should be noted at the outset. 18 First, no submission was made that the decision taken by the former Minister in July 2013 was a nullity such that the new Minister was in the position where the power conferred by s 64(4) could be taken as never having been previously exercised. Senior Counsel for the Respondents accepted that Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11, (2002) 209 CLR 597 had no present relevance or application. 19 Second, the power conferred by s 64(5A) of the Land Rights Act to impose conditions - and the fact that a condition had been imposed requiring the completion of a "funding agreement" and the absence of any such agreement having been completed - is, with respect, an unnecessary distraction from the resolution of the two submissions advanced on behalf of the Foundation. Whether or not a condition had been imposed and whether or not any condition had been complied with does not touch upon either the construction to be given to s 64(4) or whether the Land Rights Act manifests a sufficient "contrary intention" to displace the operation of s 33(1) of the Acts Interpretation Act. 20 Third, no provision of the Lands Rights Act confers an express power to vary or revoke a decision taken under s 64(4) of that Act. The power to depart from a decision once made, it was common ground, was to be found - if at all - in s 33(1) of the Acts Interpretation Act.

The power conferred by s 64(4) & the application of s 33(1) 21 Various expressions were employed by the Minister and Counsel on behalf of the parties to describe the character of the decisions made in December 2013 and June 2015. In June 2015, for example, the Minister decided to "revoke the former Minister's direction…". But it mattered not whether the power were to be characterised as a "revocation" of an earlier decision or, for example, a "variation" of the earlier decision. 22 The primary submission advanced on behalf of the Foundation was that the Minister could not withdraw or depart from the decision made in July 2013. 23 In anticipation of the submission to be advanced on behalf of the Respondent Minister as to the width of the power conferred by s 33(1) of the Acts Interpretation Act, Counsel on behalf of the Foundation sought to emphasise the nature of the power conferred by s 64(4). 24 The nature of the power conferred by s 64(4), the Foundation submitted, was a power to make a direction that an amount be debited from the Aboriginals Benefit Account; it was not a power to revoke a direction that had previously been made, nor was it a power to direct that a lesser amount or (indeed) that no amount be paid. No difficulty, the Foundation submitted, arose in circumstances where the Minister sought later to increase an amount the subject of an earlier direction. In such a case a further direction could be given in respect to the difference between the earlier direction and the increased amount. The difficulty, and the absence of power, so submitted the Foundation, arose where the Minister sought to reduce the amount previously directed to be paid - whether by a specified amount or (in the extreme) to zero. 25 A direction "not to debit" the Aboriginals Benefit Account, or not to debit it by a specified sum, was not - so it was submitted - a direction that an amount "be debited". If this is correct, s 33(1) had no room to operate because s 33(1) was confined to the exercise "from time to time" of a "power or function". A power to direct that an amount was not to "be debited from the Account" was not the same as a power to direct that an amount "be debited…". 26 In support of such a construction of the power conferred by s 64(4), the Foundation placed reliance upon Kabourakis v The Medical Practitioners Board of Victoria [2006] VSCA 301. There in question was the power conferred by s 25(7) of the Medical Practice Act 1994 (Vic) upon the Medical Practitioners Board of Victoria to conduct a formal hearing, a review of the professional performance of a registered medical practitioner, or an informal hearing. The primary Judge concluded that the comparable power to that conferred by s 33(1) of the Acts Interpretation Act, being s 40 of the Interpretation of Legislation Act 1984 (Vic), operated such that "it gave the Board an implied power to exercise and re-exercise its power under s 25(7) in respect of a matter as many times as may be needed". The Victorian Court of Appeal disagreed. Nettle JA (as his Honour then was) started with the following "general proposition": [64] I start with the general proposition enunciated in Bhardwaj that 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 more often than not the paramount consideration … His Honour went on to distinguish the decision of the New South Wales Court of Appeal in Parkes Rural Distributions Pty Ltd v Glasson (1986) 7 NSWLR 332 and concluded: [86] … Even if s 40 of the Interpretation of Legislation Act enables the Board to exercise from time to time the power conferred by s 25(7) and thereby to add to, subtract from, or reverse previous exercises of the power, it says nothing to suggest that the Board could thereby annihilate the effects of a finding made by a panel in the determination of a hearing undertaken pursuant to a previous exercise of the power conferred by s 25(7) and a fortiori nothing to suggest that the Board could thereby annihilate a finding made by a panel in the determination of a hearing undertaken pursuant to referral made by the Board in exercise of the power conferred by s 39 Chernov JA agreed with Nettle JA. Warren CJ agreed that the decision of the primary Judge was incorrect but did so on the basis of an error in the primary Judge's analysis of Bhardwaj. 27 The decision in Kabourakis has been considered by Perram J in Cassaniti v Tax Agents' Board of New South Wales [2009] FCA 619, (2009) 179 FCR 1. In issue in that case was s 251K(2) of the Income Tax Assessment Act 1936 (Cth) which empowered the Board to suspend or cancel the registration of a tax agent. One of the submissions advanced for consideration by his Honour was the proposition that once the Board had suspended the registration of a company carrying on business under the name 'CAP Accounting', it had no power thereafter to suspend it a second time for the same conduct. To do so, it was contended, would violate the "double jeopardy rule". Perram J accepted as follows a general proposition that s 251K(2) could not be "used more than once in relation to a single episode of conduct": [15] CAP submits that this second suspension should be set aside because it is, in effect, an act of double punishment. In my opinion, this contention should be rejected. I would accept that, generally speaking, an administrative power of suspension such as that conferred by s 251K(2)(b) may not be used more than once in relation to a single episode of conduct. This is so because it is appropriate - if the text permits - to interpret such powers in a way which is consistent with notions of good administration and finality: Kabourakis v Medical Practitioners Board (Vic) [2006] 25 VAR 449 at [64] per Nettle JA (with whom Warren CJ and Chernov JA agreed). Here, there is nothing in the text of s 251K(2)(b) which would suggest that, in an ordinary case, it can be used to inflict a sanction repeatedly for the same conduct. This is not to accept any application in disciplinary matters of principles of issue estoppel, a course barred by established authority … Rather, it is simply to give effect to the meaning of the words in s 251K(2)(b). But his Honour further concluded that s 251K(2) could be employed on the second occasion as it was apparent that the first decision did not purport to resolve the question of suspension on a "final basis". His Honour thus concluded: [16] However, accepting that to be so does not assist CAP. I would not regard that principle of interpretation as preventing such an administrative power of suspension from being used on an interim basis or in a preliminary or provisional way. Where a determination is expressed to be preliminary or interim the principle upon which the submission proceeds does not apply. In such a case, there has been no "final" determination. In Kabourakis 25 VAR 449 at [50] Nettle JA set forth a passage from the reasons for judgement of Vaisey J in Re 56 Denton Rd Twickenham [1953] Ch 51 at 56-57 which was in these terms: … 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 affect be altered or withdrawn by that body. [17] That, so it seems to me, is an illustration of the same principle. [18] Here, it was quite apparent that the Board was expressly not dealing with the matter on a final basis. That is sufficient to dispose of the present argument. There may be limits to how long the Board may keep a matter in such an interim state. However, in circumstances where the interim nature of the suspension appears largely to have been driven by CAP's own refusal to cooperate with the Board, I would be most reluctant to embrace the notion that those limits had been sighted, still less approached. 28 In the present case, the Foundation similarly maintained that a subsequent purported exercise of the power conferred by s 64(4) could not "annihilate" the direction made in July 2013: Kabourakis [2006] VSCA 301 at [86]. Nor could the exercise of power in July 2013 be characterised as anything other than a "final" decision: Cassaniti. The fact that the decision was made subject to the imposition of a condition did not render the then Minister's decision as anything other than "final". 29 These submissions advanced on behalf of the Foundation are accepted. On its proper construction, it is concluded that the nature of the power conferred by s 64(4) can only be exercised once and does not permit its exercise from "time to time". 30 An unexplained twist to the position advanced by Senior Counsel for the Respondents was his acceptance of the proposition that the power conferred by s 64(4) could not be exercised after the money the subject of a direction had in fact been paid to a recipient. If the power could be exercised from "time to time", and even by reference to some change in policy based upon the same facts (cf. Kurtovic), it was difficult to see why the fact of payment thereafter made the power unavailable to be exercised.

A contrary intention 31 The operation of s 33(1) of the Acts Interpretation Act is, in any event, subject to a "contrary intention" being discerned in the Land Rights Act and, more particularly, in Part VI of that Act. 32 As an alternative submission, the Foundation contended that the text of s 64 itself exposes a legislative intention that the power conferred by s 64(4) is spent once a direction has been made. Once a direction had been made, it was contended, the Minister was thereafter functus officio. That contrary intention, it was contended, could be discerned from: the legislative direction in s 64(4) that once a direction had been made there "must" thereafter be debited from the Aboriginals Benefit Account the amount the subject of the direction; and the fact that the amount that "must" be debited is such amount "as the Minister directs…". Reliance could also be placed upon: the limited power to recover monies conferred by s 64(5B). Short of invoking that power, the direction having been made the amount the subject of the direction is immediately thereafter to be debited from the Aboriginals Benefit Account. To construe s 64(4) as permitting a power subsequently to make a fresh direction reducing the amount the subject of the previous direction would be indirectly to permit the recovering of monies in the absence of breach of any condition. Section 64(4), construed in the manner advocated on behalf of the Respondents, also exposes some tension between: the requirement imposed by s 64(4) that an amount be debited from the Aboriginals Benefit Account and the requirement imposed by s 64(7) to apply the amount "in accordance with the direction…". It would be difficult to "apply" an amount that is to be debited from the Account if the amount is withheld and not received. Once a direction was given, the contention was that the legislative regime thereafter imposed an immediate obligation on the Commonwealth to debit the Aboriginals Benefit Account by the amount of the direction. The absence of any express power conferred by s 64 to revoke or vary a direction once made stood in contrast, so it was submitted, to the expression of such a legislative intent in s 35A(3) and (4) of the Land Rights Act which provided for a Land Council to "vary or revoke a determination…". 33 The alternative submission advanced on behalf of the Foundation is also accepted. 34 Reliance was also sought to be placed by the Foundation upon Export Development Grants Board v EMI (Australia) Ltd (1985) 9 FCR 269. The Board had there sought to re-assess EMI's incentive grant entitlement by reason of a belief that an earlier grant had been paid in consequence of a false or misleading statement. In concluding that the Board had no such power, Bowen CJ, Woodward and Fisher JJ said: ... What the Board could not do, so it was argued, was thereupon to leave its task of determining export earnings increment for the later grant year and proceed to reassess the earlier year in respect of which it claimed to have perceived error. The Board might call the attention of the Commonwealth, the payer of the earlier grant entitlement, to the perceived error to enable it to take any action it might think appropriate. But the Board could not itself reassess for the earlier year. It was functus officio. This argument appears to us to be sound. In our opinion the Board, in the circumstances of this case, had no power to reassess the 1978/1979 year. The duty of the Board is to consider every claim duly made and determine whether the claimant has an incentive grant entitlement, and, if so, the amount of that incentive grant entitlement (s 11(1)). The basis of calculating incentive grant entitlement is laid down by s 13. When the Board has determined the entitlement and the grant, its original task in relation to that claim is ended. The Act provides that the consequence of the Board's determination is that "there is payable to the claimant a grant equal to the amount of the incentive grant entitlement so determined" (s 11(2)). It is not the Board which pays this amount, it is the Commonwealth. The Act recognises that there may be error in the Board's determination. To the extent considered necessary, Parliament has provided for correction of error. Thus, it is provided that where any amount of grant to a person has been paid in consequence of the making of a statement that was false or misleading, that person shall be indebted to the Commonwealth in an amount equal to the amount so paid, and the amount of that indebtedness may be: (a) deducted from moneys payable to that person under the Act; or, (b) recovered from that person by the Commonwealth in a court of competent jurisdiction (s (19(1)). The Board is given a limited role in this procedure in that a certificate purporting to be signed by the Executive Member of the Board and stating that an amount of grant has been paid in consequence of the making of a statement is, upon mere production, receivable as prima facie evidence of the fact (s 19(2)). This procedure, and the role assigned to the Board, is inconsistent with a right in the Board itself to reassess the original grant where it perceives what it regards as error: (1985) 9 FCR at 276 to 277. With reference to s 33(1) of the Acts Interpretation Act, their Honours observed: Reference was made to the Acts Interpretation Act 1901, s 33(1), which provides that where an Act confers a power or imposes a duty, then, unless a contrary intention appears, the power may be exercised and the duty shall be performed from time to time as occasion requires. The suggestion appears to be that the Board may exercise the power to make a determination of incentive grant entitlement under s 11(1) as often as occasion may require. Just whether a perceived error in a past determination presents the Board with an occasion requiring another exercise of its power under s 11(1) may be left on one side. It is plain that the structure of the Act is inconsistent with the existence of such a general power to reassess. In our opinion, a contrary intention appears in the Act. In the result, we are of opinion that the Board had no power to reassess the incentive grant entitlement for 1978/1979. This is not to say that the Board could not call the attention of EMI and the Commonwealth to the error it perceived in the original determination of that entitlement. It means that the Board had no definitive power itself to rectify the error by making a fresh determination for the year 1978/1979. It follows that the decision of the Tribunal reflected in sub-par (1) cannot stand: (1985) 9 FCR at 278. See also: Campbell, "Revocation and Variation of Administrative Decisions", (1996) 22 Monash Univ L Rev 30 at 49. 35 Similarly, in Firearm Distributors Pty Ltd v Carson [2000] QSC 159, [2001] 2 Qd R 26 at 30 Chesterman J concluded that a statutory power to award compensation could not be re-exercised to reduce the amount that had previously been awarded. In so concluding, his Honour made reference to the observations of Vaisey J in In re 56 Denton Road Twickenham and continued as follows: [36] This observation affords a compelling foundation for thinking that decisions of the type here in question are not amenable to the process of reconsideration and reversal contemplated by ss 23(1) and 24AA of the Interpretation Act. Those provisions impose no time limit upon their exercise. It would be nonsense to talk of a right to claim compensation, or an entitlement to be paid, if a determination could be recalled at any time so that money paid (and no doubt spent) becomes a debt recoverable by the State. The reference in these reasons to the Queensland legislation was a reference to that State's counterpart provisions to s 33(1) of the Acts Interpretation Act. 36 The structure of s 64(4) of the Land Rights Act was similarly said on behalf of the Foundation to be "inconsistent with the existence of such a general power to reassess". 37 Even if it had been concluded that s 64(4) is a "power" to which s 33(1) of the Acts Interpretation Act applies, it is further concluded that a "contrary intention" can be discerned, such that the new Minister had no power to depart from the earlier direction made by his predecessor. Both the EMI decision and the Carson decision also provide some support for such a conclusion.

CONCLUSIONS 38 It is concluded that s 64(4) does not confer power to depart from the decision taken in July 2013. 39 Section 64(4), on its proper construction, only permits the exercise of the power to make a direction on a single occasion. Thereafter the sub-section operates according to its terms to require that the amount the subject of the direction be debited from the Aboriginals Benefit Account. 40 The alternative propositions advanced on behalf of the Foundation are, in reality, but two sides of the same coin. It matters not whether it be concluded that the consequences flowing from an exercise of the power to make a direction amount to a "power" that does not permit of its exercise "from time to time", or whether it be concluded that the consequences flowing from an exercise of the "power" to make a direction are such as to indicate a "contrary intention". 41 Once a direction has been made pursuant to s 64(4), and with the exception of such a direction being a legal nullity, there remains no residual power to either "revoke" an earlier direction or to make a further direction that a lesser amount or no amount be debited from the Aboriginals Benefit Account. Had s 64(4) permitted of an exercise of power, the mere fact that the Minister had a change of policy, or sought to apply a previously existing policy as to "recurrent funding", would not have been an impediment to a different decision being reached even on the same facts: cf. Kurtovic (1990) 21 FCR at 218. But s 64(4) does not confer the width of power sought to be relied upon by the new Minister. This conclusion would not preclude a further decision being made by the Minister to increase the amount the subject of an earlier decision, that further decision perhaps being framed in terms of the payment of an additional amount. 42 It follows that there was no power in the Minister to make the decisions purported to be made on either 18 December 2013 or 30 June 2015. 43 Notwithstanding such assistance as may be gleaned from those decisions seeking to apply s 33(1) of the Acts Interpretation Act, or its counterpart provision in the various States, such assistance as may be gained is limited. Those decisions, as does the present decision, depend upon the particular statutory context under consideration. 44 The source of the power to require the Respondent Minister now to provide a "funding agreement" to satisfy the condition imposed pursuant to s 64(5A) on 31 July 2013 was only briefly canvassed during the hearing. The principal question to be resolved was the question as to the extent of the power conferred by s 64(4). That question has now been resolved against the Respondents. It has been assumed that the Respondent Minister would not then stand in the way of giving effect to the decision taken by his predecessor.

THE ORDERS OF THE COURT ARE:

1. The parties are to bring in Short Minutes of Orders to give effect to these reasons within 14 days.
2. In the absence of agreement, the parties are to have the matter re-listed within 21 days. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.