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[1991] FCA 408
Federal Court of Australia
1991-08-30
Original judgment source is linked above.
Customs and Excise - appeal from the A.A.T. - entitlement to bounty under the Bounty (Textile Yarns) Act - period with respect to which bounty payable - whether accrued right to the payment of bounty before Act amended - whether amendments applied to goods becoming bountiable both prior to and after the coming into operation of the amendments - whether amendments were of a procedural nature - whether a postponing clause may indicate a statute is intended to operate retrospectively.
Solicitor for the applicant : Australian Government Solicitor
Solicitors for the respondent : Mallesons Stephen Jacques
The decision of the Administrative Appeals Tribunal be varied by omitting the words "for the period 1 January 1983 to 28 December 1986" and by substituting for the date "8 June 1987" the date "8 June 1988".
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
This is an appeal from a decision of the Administrative Appeals Tribunal in which the Tribunal held that the respondent, Albany International Pty Limited ("Albany"), was entitled to bounty under the Bounty (Textile Yarns) Act 1981 ("the Act") with respect to certain twisted, polyamide yarns for the period 1 January 1983 to 28 December 1986 and for the period 8 June 1987 to 31 December 1988.
2. There is no appeal as to that part of the Tribunal's decision which determined that Albany's two stage twisted, polyamide yarns were bountiable yarns. The appeal is limited to the issue of the period with respect to which bounty is payable.
3. In its original form, the Act provided, inter alia:-
"5.(1) Bounty is payable in accordance with this
Act on the production in Australia of bountiable
yarns.
...
10. Where an application for bounty in respect
of a bountiable yarn is lodged in accordance
with the regulations, the Minister shall -
(a) if he is satisfied that
bounty is payable in
respect of that yarn -
approve the payment of
the bounty; or
(b) if he is not so
satisfied - refuse to
approve payment of the
bounty."
No regulations were made dealing with applications for bounty.
4. In 1986, the Bounty and Subsidy Legislation Amendment Act (No. 2) 1986 ("the Amending Act") was passed with a view, inter alia, to regularising the manner in which applications for bounty might be made and to impose a time limit within which an application should be made. Section 16 of the Amending Act repealed s.10 and substituted the following provisions (as amended by s.22 of the Bounty and Subsidy Legislation Amendment Act 1987):-
"10. (1). Subject to sub-section (2), a person
who claims to be entitled to be paid an amount
of bounty in respect of bountiable yarn may
lodge a claim for payment to the person of the
amount.
...
(3) A claim under sub-section (1) in respect of
bountiable goods shall -
(a) be in accordance with the
appropriate approved form;
(b) include such information as is, and
such estimates as are, required by
the form;
(c) be signed and witnessed as required
by section 10D; and
(d) be lodged with a Collector for a
State, or with the Comptroller-General,
within 12 months after the
day on which the last condition for
the payment of bounty in respect of
those goods became satisfied.
...
10A. (1) Where a person who has lodged a claim
under section 10 (whether or not the claim has
been dealt with under sub-section 10(4))
considers that the claim was, because of an
inadvertent error, a claim for an amount of
bounty in respect of bountiable yarn that was
less than the amount of bounty that the person
was entitled to claim in respect of those goods,
the person may lodge a claim for payment to the
person of the difference between the 2 amounts.
...
10B. (1) Where a person who has lodged a claim
under section 10 (whether or not the application
has been dealt with under that section) becomes
aware that the claim is for an amount of bounty
in respect of bountiable yarn that exceeds the
amount of bounty that the person was entitled to
claim in respect of that yarn by more than $100,
the person shall, within 28 days after
discovering the excess, lodge an acknowledgment
of the excess, being an acknowledgment that
complies with sub-section (2).
Penalty:
(a) in the case of a natural person - $1,000;
or
(b) in the case of a body corporate - $5,000.
...
10C. (1) Subject to sub-section (2), if the
Comptroller-General becomes satisfied, otherwise
than after examining an acknowledgment under
section 10B or a statement under section 10BB,
that there has been an overpayment of a claim
for bounty by more than $100, the
Comptroller-General shall cause to be served on the person
who lodged the claim a demand for repayment of
the amount of the overpayment, and that person
is liable to repay that amount to the Commonwealth.
...
10D. (1) Where, under this Act, a claim,
acknowledgment, return or statement lodged by a
person in accordance with an approved form is
required to be signed and witnessed as required
by this section, the form shall -
(a) where the person is a natural
person, be signed personally in the
presence of a witness by -
(i) the person; or
(ii) another natural person authorised by
the first-mentioned person to sign
forms under this Act on behalf of
the first-mentioned person;
(b) where the person is a body corporate, be -
(i) under the seal of the first-mentioned
person; or
(ii) signed personally in the presence of
a witness by a natural person
authorised by the first-mentioned
person to sign forms under this Act
on behalf of the first-mentioned
person; and
(c) where the form is required to be
signed by a natural person in the
presence of a witness, state the
name and address of the witness and
contain a declaration signed by the
witness stating that the form was
signed in the presence of the witness.
...
10E. (1) Where a person is liable to repay an
amount to the Commonwealth under section 8, 10B
or 10C, the Commonwealth may recover that amount
as a debt due to the Commonwealth by action in a
court of competent jurisdiction."
Of these provisions, the most important for present purposes is s.10(3)(d) which introduced the time limit with which we are concerned.
5. The Amending Act dealt with the coming into operation of the amendments as follows:-
"2. (1) Sections 1 and 2, Part II and sections
17 and 18 shall come into operation on the day
on which this Act receives the Royal Assent.
...
(3) Section 16 shall come into operation on the
twenty-eighth day after the day on which this
Act receives the Royal Assent.
...
16. The Acts specified in Schedule 2 are
amended as set out in that Schedule.
...
18. The amendments made by section 16 do not
apply in relation to claims or applications for
bounty or subsidy made before the commencement
of that section and those claims or applications
shall be dealt with as if those amendments had
not been made."
The Amending Act received Royal Assent on 2 December 1986.
6. Albany lodged its claim for bounty on 8 June 1989, that is to say well after the amendments took effect. The period of production covered by the claim was 1 January 1983 to 31 December 1988. The case put on behalf of the Collector of Customs before the Tribunal and in this appeal is that, by virtue of s.10(3)(d), as introduced into the Act by the Amending Act, the claim was limited to those goods which fulfilled the last condition for the payment of bounty within the period of 12 months prior to the date of the lodgment of the claim, namely, during the 12 months period commencing 8 June 1988.
7. This aspect of the claim was the subject of the second period set out in the Tribunal's decision, namely "the period 8 June 1987 to 31 December 1988." The year 1987 was adopted as the Tribunal considered that a period for the purpose of claiming the payment of bounty should be taken to be 12 months and that, therefore, the 12 months of which s.10(3)(d) spoke referred to a period of 12 months prior to that period.
8. In this appeal, counsel for Albany supported this interpretation of the Act only faintly. The interpretation was incorrect for the Act says nothing as to lodgment of claims for periods of 12 months. Claims may be made at any time and as frequently as desired subject only to the limitation that they be made "within 12 months after the day on which the last condition for the payment of bounty ... became satisfied." Accordingly, the Tribunal's decision with respect to the second period should be varied by substituting the year "1988" for the year "1987".
9. In the Tribunal's decision, the word "for" is sufficient to indicate to the Collector that bounty is payable as to goods in respect of which, during the period 8 June 1988 to 31 December 1988, the last condition for the payment of bounty became satisfied. No claim was made with respect to goods which became bountiable after 31 December 1988.
10. We now turn to the first period stated in the Tribunal's decision. By reason of the operation of the Amending Act, the amendments under s.16 of the Amending Act came into operation on 30 December 1986. This date, 30 December 1986, is reflected in the date "28 December 1986" stated in the Tribunal's decision.
11. There is no dispute between the parties that bounty is not payable with respect to goods which became bountiable between 30 December 1986, the date on which the amendments became operative, and the commencement date of the second period already discussed, the period to which the claim validly applied by reason of the operation of s.10(3)(d) of the Act.
12. The principal issue raised in this appeal is whether bounty is payable with respect to goods that became bountiable during the period from 1 January 1983 to 30 December 1986, the date on which the subject amendments became operative.
13. Counsel submitted that Albany had an accrued right to bounty in respect of production up to the date of the coming into operation of the Amending Act. Counsel relied upon s.8 of the Acts Interpretation Act 1901 (Cth) which provides, inter alia:-
"8. Where an Act repeals in the whole or in part
a former Act, then unless the contrary intention
appears the repeal shall not:
...
(b) affect the previous operation of any Act so
repealed, or anything duly done or suffered
under any Act so repealed; or
(c) affect any right privilege obligation or
liability acquired accrued or incurred under
any Act so repealed; or
...
(e) affect any investigation legal proceeding or
remedy in respect of any such right privilege
obligation liability penalty forfeiture or
punishment as aforesaid;
and any such investigation legal proceeding or
remedy may be instituted continued or enforced,
and any such penalty forfeiture or punishment
may be imposed, as if the repealing Act had not
been passed."
14. We do not accept that, prior to the coming into operation of the Amending Act, Albany had an accrued right to the payment of a bounty. No right to a bounty arose under the Act, that is to say "in accordance with this Act", until the Minister had approved the payment of the bounty, as provided by s.10. Any right to a bounty was dependent upon the decision of the Minister made after the lodgment of an application and after an investigation of that claim. Matters of discretion were involved. See e.g., the original version of s.12 as to the keeping of accounts, books, documents and other records "to the satisfaction of the Minister."
15. Thus, the remarks of Lord Herschell L.C., delivering the opinion of the Judicial Committee in Abbott v Minister for Lands (1895) AC 425 at 431, are apposite.
"It has been very common in the case of
repealing statutes to save all rights accrued.
If it were held that the effect of this was to
leave it open to any one who could have taken
advantage of any of the repealed enactments
still to take advantage of them, the result
would be very far-reaching.
It may be, as Windeyer J. observes, that the
power to take advantage of an enactment may
without impropriety be termed a `right.' But the
question is whether it is a `right accrued'
within the meaning of the enactment which has to
be construed.
Their Lordships think not, and they are
confirmed in this opinion by the fact that the
words relied on are found in conjunction with
the words `obligations incurred or imposed.'
They think that the mere right (assuming it to
be properly so called) existing in the members
of the community or any class of them to take
advantage of an enactment, without any act done
by an individual towards availing himself of
that right, cannot properly be deemed a `right
accrued' within the meaning of the enactment."
Similarly, in Director of Public Works v Ho Po Sang (1961) AC 901 at 926, Lord Morris, delivering the opinion of the Judicial Committee, said that the case was merely one where there "was an investigation in order to decide whether a right should or should not be given. It was not itself a right or privilege which was preserved by the Interpretation Ordinance." See also Robertson v City of Nunawading [1973] VicRp 81; (1973) VR 819.
16. Moreover, the Amending Act leaves no doubt as to its operation. As from the day the Amending Act came into operation, all claims lodged under the Act were required to comply with the detailed requirements specified in the new ss.10 and 10D. The provisions for the variation and adjustment of claims, ss.10A, 10B and 10C, applied to all such claims, that is to say, to all claims made after the coming into operation of the new s.10. Section 10B, which made it an offence not to disclose that a claim was excessive and s.10E, which provided for recovery of overpayments, likewise applied to all such claims.
17. No restriction was placed upon the period concerning which such claims could be lodged, save the general criterion that claims must be lodged within 12 months after the day upon which the last condition for the payment of bounty in respect of the goods the subject of the claim became satisfied. See s.10(3)(d). Thus, the new provisions applied not merely to goods which became bountiable after the coming into operation of the amendments but also to goods which had qualified prior to that time.
18. It follows that ss.2(3) and 18 of the Amending Act covered the field, for they made it clear that the Act dealt with claims lodged before the Amending Act had effect and with claims lodged thereafter.
19. Two other considerations point to the same conclusion. The first is that the changes made by the Amending Act were primarily, though not merely, of a procedural nature. The amendments dealt with the form and the incidents of an application for bounty.
20. In Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515 at 518, Mason C.J., Dawson, Toohey, Gaudron and McHugh JJ. said:-
"It is said that statutes dealing with procedure
are an exception to the rule and that they
should be given a retrospective operation. It
would, we think, be more accurate to say that
there is no presumption against retrospectivity
in the case of statutes which affect mere
matters of procedure. Indeed, strictly
speaking, where procedure alone is involved, a
statute will invariably operate prospectively
and there is no room for the application of such
a presumption. It will operate prospectively
because it will prescribe the manner in which
something may or must be done in the future,
even if what is to be done relates to, or is
based upon, past events."
The limitation imposed by s.10(3)(d) upon the period of a claim was not a limitation of a purely procedural character. We do not suggest that the ordinary rules against abrogation of existing rights and obligations would not apply. Indeed, Rodway's case at 518 and the remarks of Dixon C.J. in Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267, establish the contrary. But the remarks in Rodway's case set out above confirm that the Amending Act, effecting as it did amendments primarily of a procedural character, should be read as applying to all applications for bounty lodged on and after the operative date of the amendments and not merely to applications in respect of such goods as became bountiable after the date of the amendments.
21. In this light, the terms of s.18 and the fact that the claims under the new provision could relate to goods produced at any time, so long as s.10(3)(d) was complied with, show that the Amending Act made it plain how it was to operate.
22. The second factor was adverted to in Yrttiaho v Public Curator of Queensland [1971] HCA 29; (1971) 125 CLR 228. At 246-7, Gibbs J. expressed his view that a postponing clause in an amending statute may be an indication that it was intended, when it came into effect, to operate in all cases, i.e., in conventional terms, retrospectively. Other judges have expressed doubts that there is any general rule of construction to that effect. See e.g., Windeyer and Walsh JJ. in Yrttiaho at 236, and Mason C.J., Dawson, Toohey, Gaudron and McHugh JJ. in Rodway at 524. Nevertheless, as was pointed out by Gibbs J., a postponing clause may be a relevant indication as to Parliament's intention.
23. In the present case, the Amending Act received Royal Assent on 2 December 1986. Section 2 postponed the operation of the relevant amendments for 28 days. The inclusion of this 28 day period during which claims might be lodged for any back period is consistent with the interpretation we have given to the Act that it intended the new provisions to operate with respect to all applications lodged after the commencement of the relevant amendments.
24. We would allow the appeal and would order that the Tribunal's decision be varied by omitting the words "for the period 1 January 1983 to 28 December 1986" and by substituting for the date "8 June 1987" the date "8 June 1988". The respondent should pay the costs of the appeal.
# Re Collector of Customs
Albany International Pty Limited \[1991\] FCA 408; 14 Aar 35;
(1991) 31 FCR 194
(1990) 169 CLR 515
(1957) 96 CLR 261
(1971) 125 CLR 228