Department of Social Security v Lee

[1997] HCA 46

HIGH COURT OF AUSTRALIA

BRENNAN CJ, TOOHEY, GAUDRON, McHUGH, GUMMOW, KIRBY AND HAYNE JJ

SECRETARY, DEPARTMENT OF SOCIAL SECURITY v LEE
Administrative law

(1997) 148 ALR 145

24 September 1997
Administrative law

Administrative law—social security—proceedings for recovery of overpayment of pension—application to waive debt under s 1237 of the Social Security Act 1991(Cth)—amending legislation—whether amendments to s 1237 applied to the proceedings before the Administrative Appeals Tribunal—Acts Interpretation Act 1901 (Cth) s 8(c)—whether respondent had an accrued right under s 8(c) to have proceedings dealt with under the Social Security Act as unamended—interpretation and correctness of Esber v The Commonwealth (1992) 174 CLR 430. Appealed from FCA FC. (1996) 139 ALR 57.

Orders

Order: leave is revoked.

Decision

BRENNAN CJ, TOOHEY, GAUDRON, McHUGH, GUMMOW, KIRBY AND HAYNE JJ.

Special leave was granted in this matter to consider the issue of the application of s 8(c) of the Acts Interpretation Act 1901 (Cth). Since the grant of special leave, the Parliament has enacted the Social Security Legislation Amendment (Budget and Other Measures) Act 1996 (Cth) which inserts into Sched 1A of the Social Security Act 1991 (Cth) the provisions of par (4) of cl 105[1]. The construction and application of that provision is now in contest between the parties.

One aspect of the dispute relates to the operation of s 73 of the Constitution and s 37 of the Judiciary Act 1903 (Cth) upon par (4) of cl 105. The respondent has applied to the Court to revoke the grant of special leave. But the appellant declines to raise and argue the constitutional question on the respondent's application.

In those circumstances, the issue for the consideration of which special leave was granted has receded to the point where the matter no longer appears a suitable vehicle for determination of that issue. Accordingly, special leave is revoked.

FOOTNOTE:
[1] "Despite section 8 of the Acts Interpretation Act 1901, if a legal proceeding or an application for review of a decision:
(a) relates to, or otherwise involves, a provision of Part 5.2, 5.3 or 5.4 of this Act; and
(b) is not finally determined before 1 October 1997; the proceeding or application must, if continued, be determined as if it had been instituted on that day, and this Act, as amended by Schedule 18 to the amending Act, applies to the proceeding or application accordingly."