And at 9, Stephen J said:
No general discretion is conferred upon him; instead specific criteria are laid down by the Act and all that is left for him to do is to decide whether or not he attains a state of satisfaction that the circumstances exist to which each of these criteria refers. He must, no doubt, for the benefit of his delegate and in the interest of good and consistent administration, provide guidelines indicating what he regards as justifying such a state of satisfaction. But if, in the course of doing this, he issues instructions as to what will give rise to the requisite state of satisfaction on the part of his delegates and these are inconsistent with a proper observance of the statutory criteria he acts unlawfully; should his delegates then observe those instructions, their conclusions concerning an applicant's compliance with the criteria will be vitiated.
This is what has happened in the present case. The criteria in s.107(c)(i) and (iii), those of being 'unemployed' and of having 'taken reasonable steps to obtain such work', have had superimposed upon them a requirement which prevents them from being satisfied by any school leaver during the school holidays, a period of about three months, and which, in effect, renders them inoperative during that period.
34 In my opinion, this reasoning is applicable to the present case. The Commissioner has superimposed upon the statutory criteria a quite arbitrary requirement of compliance with a test devised by himself, which does not appear in the legislation. A similar point arose in Pattanasri v. Minister for Immigration, Local Government and Ethnic Affairs (1993) 34 ALD 169, where I said at 175:
It is simply not true that an applicant must meet the policy criteria for a grant of residence status under s.6A(1)(b); what he must meet is the criterion laid down by the statute. Having met that criterion, an applicant's case should be considered in the light of the policy, but as an individual case. If the policy requires additional criteria to be met, which Parliament has not enacted, the policy cannot validly be enforced.
(The emphases are original.)
35 The plaintiff relied also on a number of other ways of putting the case, in particular, on the principle of Wednesbury unreasonableness and on the principle which forbids the inflexible application of a policy. As to the latter point, reference may be made to the joint judgment of Fox and Franki JJ in Howells v. Nagrad Nominees Pty Ltd (1982) 66 FLR 169 at 195; 43 ALR 283 at 307. However I do not find it necessary to pursue these issues. Counsel for the Commissioner fairly stated in his submissions:
It may be conceded that if the Plaintiff is an 'eligible party' and that the application was 'duly made' then the Commissioner is compelled to register the Plaintiff.
36 I have already indicated that I understood the Commissioner's own evidence to establish both the issues to which counsel referred. He is withholding registration only because 222 replies, instead of 225, have been received to his mail-out. The criterion which that view involves being invalid, no barrier remains to registration.
37 Where no further discretion remains, it has been held that a mandamus may issue: The Queen v. Anderson; Ex Parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 188. It is apparent from the remarks of Kitto J at 187-188 that he concluded in that case, as I conclude in this, that the decision maker's evidence of the reasons for his refusal, those reasons being invalid, revealed that he was in fact satisfied upon all the issues which the statute raised.
38 But the issue which is then outstanding is whether the provisions of s.66FA can now be satisfied, the date being 12 months prior to the next general election having already passed. Section 66FA provides that, for such a purpose, a "party that becomes registered under this Part is not a registered party until the first anniversary of its registration". The expression "first anniversary of its registration" (as to which, see Peking Palace Ltd v. Trizec Construction Limited (1987) 20 BCLR (2d) 161 at 164; Duchow v. New York State Teamsters Conference (1982) 691 F 2d 74 at 79) looks back to s.66E, imposing the obligation on the Commissioner to "register the party". The plaintiff suggests that such a registration can be back-dated. The defendant, on the other hand, contends that this is impossible. For the defendant, it is pointed out that various provisions of the Part are time related. In s.66G(4), the Commissioner is required to act "forthwith" if he refuses an application. Under s.66HA, there is a time aspect to the requirement to furnish an annual return. Section 66FA itself is clearly concerned with time. In s.66E, the requirement to register is not expressly extended by any concept of doing so retrospectively, and the question is whether there is any reason to imply a power to effect such a registration.
39 On the other hand, just because of the important effect of s.66FA, emphasised by the peremptory requirement in s.66G(4), it may be said that the Commissioner had a duty to effect registration as soon as a party entitled to be registered had "duly" made its application and the statutory requirements were satisfied. In a number of cases, a statutory power to take some action has been held to be impliedly subject to a condition that it be done within a reasonable time: Hospital Benefit Fund of Western Australia Inc v. Minister for Health, Housing and Community Services (1992) 39 FCR 225 at 229, 232, and the authorities there cited. As I have already pointed out, in the present case the Commissioner delayed for a significant period in effecting the advertising he was required to undertake, as well as in the pursuit of the test he undertook by the mail-out. It is not likely that the legislature intended s.66FA to operate in a circumstance of this kind.
40 In the absence of any provision enlarging the act of registration referred to in s.66E to embrace an act performed "nunc pro tunc", I do not think that I can make an order that the Commissioner perform such an act. The court makes orders of that kind, but the question is whether the act it orders the Commissioner to carry out can be of that kind. However, this may not be the end of the matter. Pursuant to s.66H, there is a power to amend the Register. When the plaintiff is registered, although the Act does not specify as a particular of registration the recording of any date of registration, it is implicit, particularly in s.66FA, that the Commissioner must do so. The power of amendment in s.66H expressly includes "amendment of the particulars in the Register of Parties with respect to a registered party". By s.66E(2), those particulars "are to be included in or form part of the Register of Parties". Section 66A(2) is consistent with the view that, at least in some respects, an amendment may have a retrospective effect. As is well known, in connection with court proceedings, amendments have frequently been held to have such an effect.
41 The question then is whether an amendment of the particulars of registration could be made to show as the true date of registration of the party the date when it was entitled to be registered, and should have been registered, but for official error. The matter may be tested by an example which cannot be dismissed as fanciful if the history of politically inspired cabinet leaks in various parts of Australia is taken into account. Suppose the decision is made to register a party a day or two before the deadline for it to participate as such in the next general election; and the public servant whose task it is under s.66E(1) to make the actual registration "by the insertion in the Register of Parties of the name of the party" deliberately delays for that day or two because of a strong personal attachment to a particular political view - could it be that Parliament intended the Register to be incapable of amendment so as to remedy the situation? And if the answer be that obviously an amendment could be made to show the date when all the requirements for registration were satisfied, though no appropriate entry was then made, why should not the same apply where the act of registration was withheld unlawfully because of an erroneous view of the nature of the statutory duty to be performed?
42 In my view, the power of amendment should be construed as sufficiently wide to enable the retrospective insertion of particulars including the date when registration should have been effected. If I had not reached that conclusion, there would have been stronger ground to construe s.66E in the manner contended for by the plaintiff, as involving an implicit power to back-date.
43 For the Commissioner, it was submitted that it would set at nought the provisions of s.66FA if the power of amendment were construed as extending to a correction of the kind I have indicated. However, it seems to me the reverse is true. Section 66FA has a positive, as well as a negative, side. It would set at nought the obvious intention of Parliament that a party which took the appropriate steps to register in time should have the benefit of the various provisions referred to in s.66FA if it could, in fact, irrevocably lose those benefits because of a deliberate or gravely mistaken official act. As McHugh J said in Muin v. Minister for Immigration [2002] HCA 30 at [104]:
If we can, we should give the words of a statute - which after all are only the means of conveying ideas and information to the public - a meaning that covers contemporary processes and accords with the object of the enactment.
44 Earlier in these reasons, I indicated that I would return to the question whether the footnote on which the Commissioner relied to justify his test, if it should be construed as doing so, would be valid. In my opinion, it would be invalid for the reasons stated in the joint judgment of Dixon CJ Williams Webb and Fullagar JJ in Shanahan v. Scott (1957) 96 CLR 245 at 250 which were adopted by the Privy Council in Utah Construction & Engineering Pty Ltd v. Pataky (1966) AC629 at 640 and were reaffirmed by the High Court in Willocks v. Anderson (1971) 124 CLR 293 at 298 - 299. In the last case (at 299), the High Court rejected "attempts to widen the purposes of the Act and to add a means of carrying them into effect which the Act itself does not contemplate".
45 For these reasons, the court orders the defendant to effect the registration of the plaintiff.