Applicant's submissions
27 The applicant's case was premised on the submission that Mr Rodda had in fact authorised Mr Woodcock, though not in writing. The Tribunal Member had accepted that when Mr Rodda received the notice he contacted Mr Woodcock promptly and that Mr Woodcock told Mr Rodda that he would 'take care of it'. The applicant submitted that it follows that the Tribunal must have accepted Mr Rodda's evidence that he orally authorised Mr Woodcock to respond to the notice on his behalf. The respondent disputes that there was any authorisation, but it seems to me that, on a fair reading of the Tribunal's decision in its evidentiary context, the Tribunal accepted that there had been such an authorisation and that such a conclusion was open to the Tribunal.
28 A second preliminary point was raised in relation to s 147. The applicant submitted that the Note following s 147 introduced some ambiguity as to whether the reference to 'another person' referred to a person other than the applicant, or, to a person other than a person representing the applicant under s 147. However, the applicant conceded, properly in my view, that it is clear from s 155AC(3) that the Note in s 147 refers to a person other than the applicant. Mr Woodcock, undoubtedly Mr Rodda's representative for the purposes of s 147, gave evidence that he thought the Note meant the latter alternative. He believed, therefore, that because he had been authorised under s 147, there was no need to be authorised again.
29 In relation to the main issue, the applicant pointed out that both the Court and the Tribunal have disavowed a technical and narrow construction of the dismissal provision and have required a beneficial approach in construing it: Re Linnehan & Veterans' Review Board and Repatriation Commission (1991) 24 ALD 376 at 380; Repatriation Commission v Allen & Veterans' Review Board (1995) 38 ALD 557 at 563; Johnson v Veterans' Review Board (2002) 71 ALD 16 at 25; and Johnson v Veterans' Review Board (2003) 129 FCR 197 at [49].
30 The applicant pointed to the decision of the majority of the High Court in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 wherein their Honours, approving the New South Wales Court of Appeal decision in Tasker v Fullwood [1978] 1 NSWLR 20 at 23G, held that (at [91]-[93]):
'An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.
…
In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the "elusive distinction between directory and mandatory requirements" and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. … In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute".' (Footnotes omitted.)
31 Specifically, the applicant drew attention to the statement in Project Blue Sky to the effect that although an act done in breach of a statutory provision is unlawful and 'Failure to comply with a directory provision "may in particular cases be punishable" ', the act may nevertheless be valid (at [100]). In this regard, reliance was placed on the decision of the Full Court in Formosa v Secretary, Department of Social Security (1998) 46 FCR 117,wherein the Court considered (at 122) that there was much force in the view that the distinction between 'mandatory' and 'directory' requirements had its meaning and utility primarily upon consideration of the consequences of a breach. The applicant also relied on Hall v Minister for Immigration and Multicultural and Indigenous Affairs (2000) 97 FCR 387at [11] in which Finkelstein J held that: 'what must be determined is the consequence of a failure to comply with such an instruction. … It is also important, no doubt, to consider the consequences of a failure to adhere strictly to the requirements of the Act'. The legislature, it was submitted, had not addressed the consequences of non-compliance with the requirement for written authorisation of s 155AC representative. The Act does not expressly provide whether such non-compliance leads to the validity or invalidity of a response otherwise authorised.
32 The applicant submitted that several factors indicate that actual but informal authorisation ought not invalidate the response given: the scope and object of the whole statute; the language of the relevant provisions; the nature of the preconditions and their place in the legislative scheme; the consequences if the response was invalid; and finally, the consequences if the response was valid.
33 As to the scope and object of the whole statute, the applicant rightly characterised the Act as 'beneficial legislation', to be interpreted liberally, and in a manner that facilitates the provision of benefits to eligible veterans.
34 In relation to the language of the relevant provisions, the applicant argued that while the provisions repeatedly use the imperative 'must', that factor does not, of itself, determine whether the response given by Mr Rodda's representative is invalid. Rather, what has to be considered are the consequences of a failure to comply with such an instruction and the consequences of requiring compliance, regardless of the circumstances.
35 In relation to the preconditions and their place in the legislative scheme, the applicant accepted that, at a general level, the provisions are designed to enable the Board to dispose of cases that are not being pursued actively. However, the applicant submitted that the Explanatory Memorandum makes clear that the requirement for a written authorisation under s 155AC(2) exists to protect applicants, because of the importance of that response to an applicant. Consequently, the essential requirement is authorisation in fact, which was given in Mr Rodda's case. The requirement for it to be in writing was to protect Mr Rodda. It is not a provision cardinal to the objective of the statute. The applicant argued that it is unlikely that Parliament intended that a failure to comply with a provision to protect applicants could lead to their applications being dismissed and a response, actually authorised by an applicant, being rendered invalid and of no effect.
36 The applicant also drew attention to the context in which the Act was created. Parliament would be aware that many veterans are now elderly; s 147(2) - which prohibits representation before the Board by persons with legal qualifications - argued against excessive concern with formalities. It is a well-known feature of Board proceedings that much of the advice available to applicants is provided by volunteers, many of whom lack legal expertise in reading legislation and case law, and in addition, are veterans with their own problems. Such a system has been institutionalised, with the Department sponsoring training for those volunteers who provide assistance. It cannot have been Parliament's intention that the dismissal provisions be implemented in a 'too technical and narrow way' when veterans before the Board are often so represented and advised.
37 The applicant argued that the consequences of treating a response such as Mr Rodda's as invalid were too unfair to have been intended by Parliament. Because the age of the veteran at the time at which the form is lodged can affect the veteran's eligibility for a pension under s 23 or s 24 of the Act, dismissing an informally authorised response as invalid could, as here, have a profound effect on a veteran who had reached 65 but whose claim had been lodged before he or she reached that age.
38 The applicant submitted that the Tribunal failed to consider the loss of benefits that could potentially flow from its interpretation of s 155AC; Mr Rodda's age had been overlooked. At the time of the hearing, 100 percent of the General Rate of pension amounted to $303.90 a fortnight. By contrast, the Special Rate of pension conferred $816.20 per fortnight on recipients. In light of these figures, if the dismissal of Mr Rodda's application in fact prevented him from qualifying for the Special Rate of pension, and he lived to age 80, he would lose approximately $200 000 in tax-free pension. Individuals not already in receipt of a pension could stand potentially to lose even more. The potential for an adverse construction of s 155AC to have profound financial consequences for veterans was said to tell against such an interpretation being made.
39 The applicant submitted that holding responses such as Mr Rodda's to be valid would not overburden the Board. Little loss of administrative efficiency would occur if the Principal Member had to obtain written confirmation from an applicant that an allegedly authorised response received from another person had been specifically authorised after the s 155AA(4) notice had been received by the applicant. Moreover, whether or not there is a need for further information or action by the Principal Member would turn on the particular issues that might arise, but they do not go to the validity of the response.