Minister for Indigenous Affairs v MJD Foundation Ltd
[2017] FCAFC 37
•3 March 2017
FEDERAL COURT OF AUSTRALIA
Minister for Indigenous Affairs v MJD Foundation Limited [2017] FCAFC 37
Appeal from: MJD Foundation Limited v Minister for Indigenous Affairs [2015] FCA 1172 File number: NSD 1593 of 2015 Judges: PERRAM, MORTIMER AND PERRY JJ Date of judgment: 3 March 2017 Catchwords: ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES – Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) – whether scheme of Act evinces an intention that an administrative decision to grant funding from the Aboriginal Benefits Account be revocable
ADMINISTRATIVE LAW – whether s 33 of Acts Interpretation Act 1901 (Cth) authorises the revocation of an administrative decision
STATUTES – interpretation – whether s 33 of Acts Interpretation Act 1901 (Cth) authorises the revocation of an administrative decision
Legislation: Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ss 35A(2), 35A(3), 64(3), 64(4), 64(5A), 64(5B), 64(7)
Acts Interpretation Act 1901 (Cth) ss 2(1), 2(2), 33(1), 33(2A), 33(3)
Cases cited: Annetts v McCann (1990) 170 CLR 596
Australian Capital Equity v Beale (1993) 114 ALR 50
Barons v Luscombe (1835) 3 Ad & E 589; 111 ER 537
Barry v Heider (1914) 19 CLR 197
Bond Corporation Holdings Ltd v Australian Broadcasting Tribunal (1988) 84 ALR 669
Burgess v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 58
Cassaniti v Tax Agents Board of New South Wales (2009) 179 FCR 1
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 2 ALD 1
Comeau’s Sea Foods Ltd v Canada [1997] 1 SCR 12
Dallikavak v Minister for Immigration and Ethnic Affairs (1985) 9 FCR 98
Day v Hunkin [1937] SASR 453
Day v Hunkin [1938] SASR 121
Day v Hunkin (1938) 61 CLR 65
Dutton v Republic of South Africa (1999) 162 ALR 625
Firearm Distributors Pty Ltd v Carson [2000] QSC 159
Flaherty v Secretary, Department of Health and Ageing (2010) 184 FCR 564
Gorman v Health Care Complaints Commission [2000] NSWSC 1228
Havers v Havers (1740) Barn C 22; 27 ER 538
Hay v Earl of Eglington (1630) Mor 637
Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1
InRe 56 Denton Rd, Twickenham [1953] Ch. 51
Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301
Kabourakis v Medical Practitioners Board of Victoria (2006) VAR 449
Kirby v Duke of Marlborough (1813) 2 M & S 18; 105 ER 289
Lawrie v Lees (1881) 7 App Cas 19
Leung v Minister for Immigration and Ethnic Affairs (1997) 150 ALR 76
Livingstone v Westminster Corporation [1904] 2 KB 109
Marshall v Watson (1972) 124 CLR 640
Mauger v Wingecarribee Shire Council [2015] NSWSC 1022
Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Minister for Immigration and Multicultural and Indigenous Affairs v Watson (2005) 145 FCR 542
Mison v Randwick Municipal Council (1991) 23 NSWLR 734
NH v Director of Public Prosecutions (SA) (2016) 90 ALJR 978
Parkes Rural Distributions Pty Ltd v Glasson (1986) 7 NSWLR 332
Pfeiffer v Stevens (2001) 209 CLR 57
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R v District Council of Berri (1984) 36 SASR 404
Re Chan and Minister for Immigration and Ethnic Affairs (1977) 17 ALR 432
Re Export Development Grants Board v EMI (Australia) Limited and Thorn EMI Electronics Pty Limited [1985] FCA 284
Re Patterson; Ex Parte Taylor (2001) 207 CLR 391
Re Sterling; Ex parte Esanda Ltd (1980) 44 FLR 125
Rootkin v Kent County Council [1981] 1 WLR 1186
Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28
Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429
South Australia v Totani (2010) 242 CLR 1
Southlink Pty Ltd v WorkCover Corporation of South Australia [2009] SASC 175
Taylor v Owners – Strata Plan No 11564H (2014) 253 CLR 531
The King v Wallis; ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529
VQAR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 900
Walter Construction Group Limited v Fair Trading Administration Corporation [2004] NSWSC 158
Western Australian Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30
Winn v Director General of National Parks and Wildlife (2001) 130 LGERA 508
Akehurst M, ‘Revocation of Administrative Decisions’ [1982] PL 613
Allars M, ‘Perfected Judgments and Inherently Angelical Administrative Decisions’ (2001) 21 Aust Bar Rev 50
Campbell E, ‘Revocation and Variation of Administrative Decisions’ (1996) 22 Monash UL Rev 30
Encyclopaedic Australian Legal Dictionary (LexisNexis, 2017)
Ganz G, ‘Estoppel and Res Judicata in Administrative Law’ [1965] PL 245
Oxford Latin Dictionary (Clarendon, 2000)
Pretorius DM, ‘The Origins of the Functus Officio Doctrine, with Specific Reference to Its Application in Administrative Law’ (2005) South African LJ 832
Wade HWR and Forsyth CF, Administrative Law (7th ed, Clarendon, 1994)
Date of hearing: 2 May 2016 Date of last submissions: 30 May 2016 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 256 Counsel for the Appellants: Mr G Kennett SC with Mr P Herzfeld Solicitor for the Appellants: Australian Government Solicitor Counsel for the Respondent: Mr S Free Solicitor for the Respondent: Gilbert + Tobin ORDERS
NSD 1593 of 2015 BETWEEN: MINISTER FOR INDIGENOUS AFFAIRS
First Appellant
COMMONWEALTH OF AUSTRALIA
Second Appellant
AND: MJD FOUNDATION LIMITED
Respondent
JUDGES:
PERRAM, MORTIMER AND PERRY JJ
DATE OF ORDER:
3 MARCH 2017
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The Appellants pay the Respondent’s costs of the appeal as taxed or agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
PERRAM J:
Subsection 33(1) of the Acts Interpretation Act 1901 (Cth) (‘the Acts Interpretation Act’) provides that:
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.
The two issues in this case arise from the application of s 33(1) to s 64(4) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (‘the Land Rights Act’). That provision empowers the responsible Minister to make a direction that an amount be paid ‘for the benefit of Aboriginals living in the Northern Territory’. A former Minister made a direction that the sum of $10 million be paid to the respondent (‘the Foundation’). It is not in dispute that a payment to the Foundation was a payment for the benefit of Aboriginals living in the Northern Territory within the meaning of s 64(4). Before the money was paid to the Foundation, however, there was a change in government, and the incoming Minister purported to revoke the former Minister’s earlier direction.
The first question in this case is whether s 33(1) empowered the incoming Minister to revoke the decision of the former Minister. The second question is whether, assuming that it could do so in principle, the scheme of the Land Rights Act was such that it evinced a ‘contrary intention’ within the meaning of s 2(2) of the Acts Interpretation Act. Subsection 2(1) provides that the Acts Interpretation Act applies to all Acts, but subs 2(2) provides that ‘… the application of this Act or a provision of this Act to an Act or a provision of an Act is subject to a contrary intention.’
The learned primary judge concluded that the power in s 64(4) was such that even if re-exercised it could not bring about a revocation of the earlier decision. This was because the power in s 64(4) was a power to direct the making of a payment and nothing else. It was not possible, on this view, by the re-exercise of such a power, to bring about a revocation of an earlier decision. In any event, his Honour also concluded that the scheme of the Land Rights Act indicated that the power could be exercised only once and exhibited a contrary intention for the purposes of s 2(2) of the Acts Interpretation Act. The trial judge therefore granted relief to the Foundation setting aside the incoming Minister’s decision.
On appeal, the incoming Minister contests the correctness of both conclusions. For the reasons which follow, the trial judge erred in his treatment of both issues. In fact, s 33(1) did authorise the incoming Minister to revoke the former Minister’s direction, and the scheme of the Land Rights Act did not evince a contrary intention for the purposes of s 2(2) of the Acts Interpretation Act. Consequently, the appeal should be allowed with costs, the orders of the trial judge set aside and in lieu thereof it should be ordered that the Foundation’s application to the Court below should be dismissed. The Minister did not seek his costs at trial and the appropriate order is that each party pay its own costs.
These reasons are structured as follows:
(1)Relevant facts and statutory provisions;
(2)Subsection 33(1) and revocation;
(3)Whether the Land Rights Act evinces a contrary intention for the purposes of s 2(2) of the Acts Interpretation Act; and
(4)Orders.
1. Relevant facts and statutory provisions
This case concerns Indigenous persons in the Northern Territory. Provision is made by the Parliament for the conferral of Aboriginal land rights in the Northern Territory by means of the Land Rights Act. There is continued in existence by Part VI of that statute the ‘Aboriginals Benefit Account’. The Account is credited with amounts equivalent to the mining royalties received by the Commonwealth and the Northern Territory as a result of mining activities conducted on Aboriginal land held under the Land Rights Act. Section 64 specifies a number of circumstances in which payments may be made by the Commonwealth and the Account correspondingly debited. One aspect of the Account is the on-going funding of the operation of Aboriginal Land Councils under s 64(1). Another, relevant to this case, is the Minister’s power to direct that an amount be paid ‘for the benefit of Aboriginals living in the Northern Territory’. This power is conferred by s 64(4), and the legal consequence of a direction under that subsection is that the Commonwealth must pay the amount specified in the direction and the Account must be debited by the same amount. A number of provisions in s 64 are relevant for this appeal, including subs (3), (4), (5A), (5B) and (7). These are as follows:
Debits from the Account
…
(3) There must be debited from the Account and paid by the Commonwealth, from time to time, to each Land Council in the area of which a mining interest referred to in subsection 63(1) is situated, or mining operations referred to in subsection 63(4) are being carried on, an amount equal to 30% of any amounts:
(a)credited to the Account in accordance with subsection 63(1) in respect of that mining interest; or
(b)credited to the Account in accordance with subsection 63(4) in respect of those mining operations;
as the case may be.
(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.
It will be observed that the Minister’s power is a power only to direct the payment or application of an amount. The Minister does not have the power to debit the Account, nor to direct the Commonwealth to pay the amount in question. The debiting of the Account and the corresponding payment by the Commonwealth are instead the legal consequences of the Minister’s direction.
The Foundation is a charity established in 2008 to provide a better quality of life for Indigenous persons and their families living with Machado Joseph Disease in Arnhem Land and beyond. The disease is a largely hereditary neurological disorder characterised initially by clumsiness in the limbs. In 2010, the Foundation applied for a grant of $6 million from the Account. It intended to use that money as the corpus of a fund the income derived from which would support its charitable activities. This grant was paid.
By 2012, the Foundation believed that its circumstances had changed and it needed more capital. There were three elements to this change. First, there had been since the time of the initial grant a substantial increase in the number of Indigenous persons presenting with the disease. There had been an upswing from 41 symptomatic individuals and 410 individuals at risk to 71 symptomatic individuals and 557 individuals at risk. Secondly, the future projected prevalence figures for the disease suggested that in the next generation, up to 5% of the population of some Indigenous communities might be affected. Thirdly, there was evidence which indicated that the strain of the disease which was prevalent in the Northern Territory amongst Indigenous people was the more aggressive ‘Joseph’ strain, which causes persons with the disease to become symptomatic younger.
In light of this, the Foundation resolved to increase the size of its capital sum from the $6 million granted from the Account in 2010 to some $16 million. This entailed applying for a variation to the grant of $6 million (awarded in 2010) to $16 million. An expression of interest was submitted to the Minister on 10 August 2012. This was followed by a formal application dated 15 May 2013.
On 22 July 2013, the former Minister signed a document entitled ‘Aboriginals Benefit Account Direction 2013 (No. 11)’. It was in the following terms:
Direction under subsection 64(4)
I, JENNY MACKLIN, Minister for Families, Community Services and Indigenous Affairs and Minister for Disability Reform, pursuant to subsection 64(4) of the Aboriginal Land Rights (Northern Territory) Act 1976, direct that the amount of $10,000,000 be debited from the Aboriginals Benefit Account and paid to MJD Foundation Incorporated in relation to the Consolidation of Grant Variation (additional funding) project.
This direction takes effect on the date of signature.
On 31 July 2013, the former Minister notified the Foundation by letter that its application had been successful. The letter said that it was a condition of the payment that the Foundation enter into a funding agreement with the Commonwealth under s 64(5A). Subsection 64(5A) expressly authorised the Minister to impose conditions upon the making of a payment from the Account. Nothing arises from the fact that the condition did not appear in the direction.
After the direction was made but before any payment there occurred, on 13 September 2013, elections for the House of Representatives and half of the Senate. As a result of the former, there was a change of government and the incoming Minister was appointed to the portfolio. By 18 December 2013, the condition that a funding agreement be entered into between the Foundation and the Commonwealth under s 64(5A) had still not been satisfied, and there continued to have been no payment by the Commonwealth to the Foundation of the $10 million under s 64(4). On that day, the incoming Minister wrote to the Foundation and informed it that its application for funding had been unsuccessful. For completeness, it should be noted that it was not suggested that the fault for the non-execution of the funding agreement lay at the feet of the Foundation.
There was some controversy in this Court, of a reasonably formal kind, as to whether the incoming Minister’s actions on 18 December 2013 should be seen as constituting a revocation of the first Minister’s decision, or whether they should instead be seen as a decision that the sum of $0 should now be paid. The incoming Minister’s decision was communicated by letter dated 18 December 2013. The pertinent parts of the letter were as follows:
Dear Mr Westbury
I am writing in relation to the application submitted to the Aboriginals Benefit Account from the Machado Joseph Disease Foundation Limited seeking funding under subsection 64(4) of the Aboriginal Land Rights (Northern Territory) Act 1976.
Since taking office as the Minister for Indigenous Affairs, I have reviewed all grant applications made to the Aboriginals Benefit Account as part of the Government’s broader examination of all spending.
The funding application from the Machado Joseph Disease Foundation for a $10 million grant to be invested in perpetuity to enable interest earned to fund the work of the Foundation has been unsuccessful.
This application was in addition to the previous $6 million grant from the Aboriginals Benefit Account that your organisation received in 2010 to earn interest which as stated in your application would “cover operational costs for the Machado Joseph Disease Foundation to enable it to be sustainable for many, many years to come”.
It has been a longstanding policy and practice to not provide recurrent funding from the Aboriginals Benefit Account. Notwithstanding the undoubted value of your project, I am of the strong view that providing a cash advance is an unsustainable and indefensible mechanism to work around this existing policy. This Aboriginal Benefit Account grant would set a dangerous precedent for the fund and the previous grant of $6 million should not have been approved in my opinion.
…
Also relevant to the ascertainment of what the incoming Minister actually did on 18 December 2013 are the reasons he produced for the decision under s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). These were forthcoming on 10 November 2014. The first paragraph of the substantive part of those reasons suggests that the Minister understood himself to have revoked the earlier direction:
I decided to revoke the Former Minister’s direction under s 64(4) of the Aboriginal Land Rights (Northern Territory) Act 1976, that $10,000,000 be debited from the ABA and paid to MJD Foundation in relation to “the Consolidation of Grant Variation (additional funding) project”.
Taken together it seems that the incoming Minister understood himself to be revoking the earlier Minister’s decision to pay $10 million to the Foundation. There is no evidentiary support in either the letter of 18 December 2013 or the reasons of 10 November 2014 for the notion that the incoming Minister had decided to direct the making of a payment of $0 to the Foundation.
Finally, it should be noted that the proceedings before the trial judge initially involved (at a pre-trial stage that was well in advance of the commencement of the hearing) the contention that in making the revocation decision on 18 December 2013, the Minister had failed to afford the Foundation procedural fairness. Arrangements were subsequently made for the incoming Minister to afford the Foundation procedural fairness, as a result of which he made a fresh decision on 30 June 2015 which was to the same effect as his earlier decision. It was accompanied by written reasons of the same date. In the section of those reasons under the heading ‘Decision’, the incoming Minister twice referred to himself as revoking the former Minister’s decision (‘The direction of the former Minister dated 22 July 2013 should be revoked’ and ‘The direction of the former Minister dated 22 July 2013 made under s 64(4) of the Land Rights Act is revoked.’) In an earlier part of the reasons, under the heading ‘Background’, the incoming Minister also said ‘I am satisfied that, with the $10 million directed by the former Minister not having been paid, I have the power to direct that it not be paid.’ A direction that a sum previously directed to be paid not be paid is, for all intents and purposes, the same as a revocation of the first direction. Taken as a whole, the evidence suggests that the second decision of 30 June 2015 was a decision to revoke. As with the first decision, and subject to the same qualification referred to in the preceding paragraph, the evidence does not support the notion that the incoming Minister on 30 June 2015 directed that an amount of $0 be paid to the Foundation.
For the purposes of the proceeding before the trial judge and also on this appeal, the parties agreed that these two decisions stood or fell together. If s 33(1) of the Acts Interpretation Act was available, both were valid; if it were not, neither was.
No more needs to be said about the facts. Although the appeal is only concerned with s 33(1), a number of the issues which arise also touch upon ss 33(2A) and (3), which should be set out. Subsection 33(1) is set out above at [1], but for ease of readability is now set out again. The relevant provisions are as follows:
33 Exercise of powers and performance of functions or duties
Powers, functions and duties may be exercised or must be performed as the occasion requires
(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.
Meaning of may
(2A) Where an Act assented to after the commencement of this subsection provides that a person, court or body may do a particular act or thing, and the word may is used, the act or thing may be done at the discretion of the person, court or body.
…
Power to make instrument includes power to vary or revoke etc. instrument
(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.
It is useful then to begin with the operation of s 33(1).
2. Subsection 33(1) and revocation
Can s 33(1) be used by the repository of a power to revoke an earlier exercise of that power? The materials available as to what s 33(1) was intended to do are sparse. In none of the second reading speeches accompanying the introduction of s 33(1) (or provisions like it in other jurisdictions) does there appear to have been any discussion of what it was intended to do. Some historical materials are, however, available. As originally enacted in 1901, s 33(1) was largely in the same form as it is now, and provided:
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.
This version differs from the current version of s 33(1) only in that the ‘contrary intention’ exception has been relocated to s 2(2), and the original version has no reference to functions. Neither difference is material to this discussion.
The original version of s 33(1) was materially the same as s 32(1) of the Interpretation Act 1889 (UK). In the general discussion of that Act in Sir Courtney Ilbert’s 1901 work, Legislative Methods and Forms, there is a suggestion that several parts of the Act were drawn from the General Clauses Act 1887 (India). It is very likely that Sir Courtenay would have known this, since he was not only the assistant parliamentary counsel to the Treasury in 1889 when the Interpretation Act 1889 (UK) was passed but had been, during his time serving in India, the person who in 1887 had introduced the General Clauses Bill into the Indian Council of the Governor-General. In the course of delivering his introductory remarks to that Council, Sir Courtenay explained that in the bill he proposed to make additions to the provisions of the previous General Clauses Act 1868 which were ‘based on my personal experience during the last few years’ and whose purposes included ‘generalizing certain definitions and rules of frequent occurrence’. Sir Courtenay’s General Clauses Act 1887 included a s 5 which provided:
Any power conferred on the Governor General in Council or on a Local Government by an Act to which this Part applies may be exercised from time to time as occasion requires.
There was no equivalent to s 5 in the previous General Clauses Act 1868 (India), so this was new. There may be good reason to think, therefore, that s 5 was one of the provisions Sir Courtenay had in mind in his comments to the Council, although about this one cannot be absolutely sure. By way of further conjecture, it is possible that Sir Courtenay may have obtained some inspiration for s 5 from s 10 of the Acts Shortening Act 1852 (NSW), which provided:
Whenever power shall be given to do perform or submit to any act matter or thing such power shall be capable of being exercised from time to time as occasion may require unless the nature of the thing or the words used shall indicate a contrary intention.
This is not identical to s 5 of the General Clauses Act 1887 (India), but there are striking resemblances. There is, however, no need to determine the ultimate headwaters of the current s 33(1). Although Sir Courtenay made no particular remarks about s 5 on the introduction of the bill, a contemporaneous commentator did. Writing in 1891 in his treatise, A Second Supplement to the Anglo-Indian Codes, the distinguished Celtic philologist Whitley Stokes observed of s 5:
The English rule that a power given to the Crown by statute having been once exercised is exhausted had been applied by Indian Courts to powers conferred by the Indian Legislature on the Governor-General in Council and on the Local Governments.
Sir Courtenay appears to have shared that view. In Legislative Methods and Forms, he included this explanation of s 32(1) of the Interpretation Act 1889 (UK):
The effect of this sub-section is to make the insertion of the words ‘from time to time’ usually unnecessary. Those words were formerly inserted for the purpose of removing the application of the doctrine that a statutory power is exhausted by its first exercise unless its repetition is expressly authorized. The presumption on this point is now reversed. If it is intended that a statutory power should not be exercised recurrently this should be stated.
This statement was then picked up in the 1913 first edition of Halsbury’s Laws of England, where it was said:
Where any statute passed since 1889 confers a power or imposes a duty, then, unless a contrary intention appears, the power may be exercised and the duty performed from time to time as occasion requires (f), and, when the power is so conferred or the duty imposed on the holder of an office as such, it may be exercised or performed by the holder for the time being of the office (g).
Footnote (f) was in these terms:
(f) Interpretation Act, 1889 (52 & 53 Vict. c. 63), s. 32 (1); Battersea Borough Council v. County of London Electric Supply Co., Ltd., [1913] 2 Ch. 248. 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.
The nature of this inconvenient common law doctrine has proved elusive. The reference to Battersea does not assist, as that decision contains no reference to the common law doctrine under discussion. The editors of the third edition of Halsbury’s Laws of England suggested, in their largely identical discussion of s 32(1), a possible example of the doctrine. It was set out in footnote (r):
(r) Ibid., ss. 32(1), 42. The purpose of this provision was to overcome the inconvenience formerly caused by the doctrine that a statutory power is exhausted by its first exercise unless (as, e.g., in Battersea Borough Council v. County of London Electricity Supply Co., Ltd., [1913] 2 Ch. 248, C. A.) a contrary intention can be discovered. For an example of the operation of the doctrine, see the Union with Ireland Act, 1800 (39 & 40 Geo. 3 c. 67), art. 1, by which the Crown was empowered to determine by proclamation the royal style and titles to be assumed thereafter, and, the power having been exercised on 1st January 1801, the granting by the Royal Titles Act, 1876 (39 & 40 Vict. c. 10) (repealed), of a new power of amendment for the purpose of enabling the transfer to the Crown of the Government of India to be recognised. The availability of statutory powers is sometimes confined to a specified period. This is so particularly in the case of powers to acquire land compulsorily, and the principles then applicable are discussed in title COMPULSORY ACQUISITION, Vol. 10, pp. 20, 21.
The example is not, perhaps, especially mainstream. Whatever the content of the doctrine was, however, it seems likely that provisions such as s 33(1) have, since at least 1889, prevented it from having any further modern application or development. The uncertain extent of the doctrine referred to by the editors of the first edition of Halsbury’s seems unlikely, therefore, ever to be clarified. For present purposes, that probably does not matter. What does matter is that s 33(1) and its progenitors were drafted with a view to overcoming a rule whose content was thought to be that a power conferred by statute was exhausted by its first exercise.
On its face, that does not throw direct light on the question whether s 33(1) can be used to revoke an earlier exercise of power.
What then can be drawn from the structure of the provision itself? In answering that question, it is useful to observe a distinction between statutory powers which, on their face, appear only to be intended for use on a single occasion, and those which are couched in general language and which appear to be intended to be exercised in relation to very many different circumstances.
Examples of the former are relatively rare. Article 1 of the Union with Ireland Act, 1800 (39 & 40 Geo. 3 c. 67) referred to in footnote (r) in the third edition of Halsbury’s Laws of England (set out above) may be one such power. The power of the Queen under s 3 of the Commonwealth of Australia Constitution Act 1900 (Imp) to unite by proclamation the Australian Colonies into a Federal Commonwealth is probably another. Another example, perhaps closer to home, may be afforded by the Governor-General’s power under s 34(1) of the Federal Court of Australia Act 1976 (Cth) to cause registries of this Court to be established in each State.
Instances of the latter are, by contrast, common. Subsection 29(1) of the Migration Act 1958 (Cth) may serve as a convenient example. It provides:
(1)Subject to this Act, the Minister may grant a non-citizen permission, to be known as a visa, to do either or both of the following:
(a) travel to and enter Australia;
(b) remain in Australia.
It is obvious that this power was not forever exhausted when pursuant to it the responsible Minister issued the first ever visa, so that neither he nor his successors thereafter could ever again issue another. But this is not because of s 33(1). It is because it is clear from the subject matter, scope and purpose of the Migration Act 1958 (Cth) that Parliament intended that the power should be exercisable in relation to multiple applicants. Although not the subject of direct discussion, the High Court appears to have assumed a similar operation for relevantly indistinguishable provisions in Day v Hunkin (1938) 61 CLR 65.
In the case of such generally expressed powers, however, s 33(1) may be seen to speak to the individual instances in which the power has been exercised. To continue with the example of the visa granting power in s 29(1) of the Migration Act 1958 (Cth) (and leaving aside, for the sake of argument, the balance of that statute whose Byzantine stipulations are likely to impact upon the correctness of the analysis), s 33(1) would provide a basis for re-exercising the power in s 29(1) in relation to a particular application by a non-citizen, notwithstanding that that application had already previously been dealt with by the Minister.
That would mean, on the obverse of the current facts, that s 33(1) would authorise the incoming Minister to exercise the power to direct the making of a payment under s 64(4) of the Land Rights Act, notwithstanding that the former Minister had already decided in the case of a particular application for funding that that direction should not be made.
But does s 33(1) authorise the Minister when so re-exercising the power to decide to revoke the earlier decision that the payment be made, in effect directing that the payment not be made? Mr Free of Counsel, for the Foundation, cogently submitted that the text of s 64(4) set out the content of the power which could be re-exercised. Subsection 33(1) did not change the nature of that power, but merely allowed it to be exercised more than once. This mattered because no matter how the power to direct that a payment be made under s 64(4) was performed or how many times it was exercised, a power to direct the making of a payment could not ever be transformed into a power to revoke an earlier direction to make a payment. A silk purse could not be made from a sow’s ear.
This engaging argument should be rejected for reasons relating to the text of s 33(1) itself. In relation to duties and functions, s 33(1) requires that such duties and functions must be exercised from time to time as occasion requires. But this is not what is required in the case of statutory powers. Of statutory powers what is stipulated is only that they may be exercised. The meaning of ‘may’ is then conveniently explained in s 33(2A), so that where a statute says that a person, body or court ‘may’ do a particular act or thing, then ‘the act or thing may be done at the discretion of the person, court or body’.
In the case of statutory powers, therefore, s 33(1) by its own use of the word ‘may’ explicitly contemplates that one outcome it authorises is that the power in question will not be exercised. So in this case, for example, s 33(1) expressly contemplates that although the former Minister had already exercised the discretion under s 64(4) to direct the making of the payment, it was open to the incoming Minister to re-exercise that power so as not to make the direction. Any other reading cuts across the definition of ‘may’.
Two objections may be raised against this argument. The first is that to revoke the earlier decision it would be necessary to read s 33(1) as having a retroactive operation. On this view, a decision-maker who sought to revoke an earlier decision would be utilising the same power as had been initially exercised but this time would do so by not exercising it, and that decision would have effect from the date of the original decision. Such an occurrence would bring about an avoidance of the original decision ab initio. The difficulty with such a reading of s 33(1) is that the expression ‘may be exercised … from time to time as occasion requires’ is not apt to include exercises of power with retroactive effect. ‘[A]s occasion requires’ is an inherently forward-looking expression and cannot, as a matter of ordinary language, permit the making of orders having effect from a date in the past.
This objection is, in part, sound. Subsection 33(1) does not authorise the making of any kind of decision with retroactive effect, and this is so regardless of whether the decision is a revocation decision or even a decision to exercise a power in a positive way. For example, s 33(1) cannot be used to decide that a decision made today should take effect from an earlier date. However, that is not sufficient to mean that s 33(1) cannot be used to revoke a decision – it merely shows that a decision cannot be revoked ab initio. It does not, in itself, mean that a decision may not be made today to revoke, with effect from today, a decision made in the past.
When the power to revoke is considered as an exercise of power in the present, then the fact that s 33(1) uses the word ‘may’ still therefore shows that an available outcome is that the power on its second exercise might not be exercised at all.
The second objection is related to the first. When the power being exercised is, as here, a power to take some positive step then there is the textual difficulty, strongly relied upon by Mr Free, that there is no mechanism by which such a power may be used as a power to reverse that positive step. In this case, the power actually conferred by s 64(4) is a power to make a direction. On this view, there is no way that that power can be read as a power to unmake a direction, for that is not the power conferred by s 64(4). Further, s 33(1) does not expand or alter the nature of the underlying power, but only permits its fresh exercise.
However, this second objection may be readily dealt with. Since s 33(1) explicitly contemplates through the word ‘may’ that on the re-exercise of a statutory power to which it applies the power need not be exercised, the provision must be taken to include within its grant sufficient power to give effect to that outcome. The only way that a decision under s 33(1) to re-exercise a power by not exercising it may be given effect is by the revocation of the earlier decision. Subsection 33(1) must be construed, therefore, as including such a power. This is not a surprising outcome. It is a well-known principle of statutory interpretation that where a power is conferred by a statute, there is an implied power to perform it: see Pearce D and Geddes R, Statutory Interpretation in Australia (8th ed, LexisNexis Butterworths, 2014), para 2.43. The learned authors of that work refer as authority for that proposition to the decision of Lockhart J in Re Sterling; Ex parte Esanda Ltd (1980) 44 FLR 125 at 130, but there are very many such statements in the reports. Re Sterling is a useful example nevertheless for present purposes. In that case it appeared that the Bankruptcy Act 1966 (Cth), whilst making reference to an application to set aside a bankruptcy notice, at no point actually conferred any power on a bankruptcy court to do so. His Honour concluded, under this principle, that such a power was implied.
So too here. Subsection 33(1) assumes by reason of the word ‘may’ that the power can be re-exercised by not exercising it. This assumption can only be given effect if the provision carries with it a power of present but not retroactive revocation. Consequently, s 33(1) authorises not only the re-exercise of a statutory power, but where the second decision is a decision not to exercise the power at all, also the revocation of the earlier decision from the date of the second decision.
The course of authority concerning s 33(1) and its analogues largely supports this conclusion. However, it may be accepted that the authorities contain no principled explanation of why the provision can be used in this manner. Further, it seems correct to say that all the statements which appear in relation to the ability to use the provision as a source of authority to revoke an earlier decision are obiter dicta. Were it not for the fact that, as a matter of construction, I have concluded that s 33(1) can be used to revoke an earlier decision, I would not have found the authorities in this area very persuasive.
The principal authority usually referred to is the House of Lords decision in Lawrie v Lees (1881) 7 App Cas 19. That case was not concerned with a provision such as s 33(1), but instead with the meaning of the expression ‘from time to time’ in a special statute dealing with the affairs of a baronet who had become insane. The question arose in relation to the ‘Horse Shoe Brewery’ (famously the site of the London Beer Flood of 1814) which had been operated by a partnership whose members included Sir Henry Meux. Sir Henry had become subject to proceedings in lunacy and his affairs were subject to special legislation, Sir Henry Meux’s Estate Act, 1863. Under s 3 of that Act, the Lord Chancellor (or his delegates) could ‘from time to time’ direct to be done etc with respect to the business of the Horse Shoe Brewery anything that Sir Henry, if of sound mind, might have done himself. Part of the Horse Shoe Brewery apparently included premises called ‘The White Bear Inn’ at Hampstead. The appellant agreed with the partnership to purchase the leasehold in the White Bear and then failed to complete the purchase. Specific performance proceedings ensued. The Lord Chancellor (or those lawfully representing him) had made an order under s 3 of the Act authorising a Committee dealing with Sir Henry’s affairs to execute all such deeds relating to the head lease as were approved by the Master in Lunacy. The appellant purchaser sought to argue that specific performance of the purchase should not be decreed because, not having been authorised by s 3, this order was invalid. It was not authorised by s 3 because the words ‘from time to time’ in s 3 did not permit a prospective authorisation of the form which the Committee had used.
This argument appears not to have been received enthusiastically. Although pursued in the Court of Appeal, that Court had not dealt with it, prompting Lord Penzance to muse (at 30) whether it had been pursued seriously in that Court, Lord Blackburn to ponder (at 39) that ‘I hardly know whether I should call it an argument’, and Lord Watson (at 41) to describe the appellant’s arguments as ‘of a very slender and unsubstantial character’. In any event, no member of the House accepted the argument. Lord Penzance rejected it in the following terms (at 29-30):
It is not one which I think your Lordships would lightly adopt, and I see no reason whatever for adopting it, because the words “from time to time” are words which are constantly introduced where it is intended to protect a person who is empowered to act from the risk of having completely discharged his duty when he has once acted, and therefore not being able to act again in the same direction. The meaning of the words “from time to time” is that after he has made one order he may make a fresh order to add something to it, or take something from it, or reverse it altogether; and as that meaning gives sufficient force to the words and explains the use of them here it seems to me that your Lordships ought not to go further and to narrow these words by any construction which would throw impediments in the way of carrying on the business, whereas the object of the Act was to facilitate it.
(Emphasis added.)
Lord Blackburn and Lord Watson agreed at 39 and 41 respectively. It will be apparent from what has been set out above that the italicized portion of Lord Penzance’s reasons dealing with whether the power could be successively used to detract from or reverse an earlier exercise of power was not in issue in Lawrie v Lees, and that therefore the statement is an obiter dictum. Indeed, it is an obiter dictum in relation to a matter which was apparently not even the subject of argument. Whilst the conclusion I would reach is that s 33(1) does indeed operate as Lord Penzance suggests, for myself, I am bound to observe that, with respect, his Lordship’s reasons involve no more than an unreasoned assertion for a proposition which is, at least to my mind, far from obvious.
Lawrie v Lees was applied by Glass JA in Parkes Rural Distributions Pty Ltd v Glasson (1986) 7 NSWLR 332. That case was concerned with a provision which authorised an officer to certify that an amount had been received by a person under a subsidy scheme in excess of their entitlement to receive that subsidy. The officer had issued two certificates. The first had certified the sum of $152,317.70 to be repayable and the second, and subsequent, notice certified the sum of $134,065.27. The appellant was seeking to avoid having to pay either. Its argument was that the first notice was voidable, because it had been issued without affording the appellant natural justice, and that the second notice had been issued before the first notice had, in law, been declared void by the Court. It was then said not to be possible to have two inconsistent certificates on foot at the same time. Consequently, as Sir Maurice Byers QC for the appellant argued, the second notice must have been invalid and should be set aside. Further, fortuitously the first notice was now also to be set aside for the want of procedural fairness. In consequence, the appellant owed money under neither certificate.
It is not difficult to see that this was not an attractive argument. The precise wording of the power in question (s 8(3) of the Petroleum Products Subsidy Act 1965 (Cth)) was as follows:
Where an authorized officer is satisfied that an amount paid to a person under this Act … was not payable to that person or exceeded the amount that was payable to that person, he may give a certificate in writing that the amount paid or the amount of the excess, as the case may be, is repayable by that person to the State.
Glass JA dismissed Sir Maurice’s argument in brief terms (at 335-336):
The trial judge rejected this argument and found on the evidence that the first certificate had been withdrawn and replaced by the second certificate. It was argued before us that no power was vested in authorised officers which would enable this to be done. I am unable to agree. The power to issue certificates granted by s 8(3) of the Act is elaborated by the Interpretation Act 1897, s 32, which permits its exercise from time to time. It has been held that a power exercisable from time to time may be so exercised as to add to, subtract from or reverse the result of the previous exercise: Lawrie v Lees (1881) 7 App Cas 19 at 29. In other words the donee of such a power is never functus officio. Accordingly the existence of the first certificate does not render void a second certificate issued in lieu of it.
Samuels and Priestley JJA agreed at 339. It will be apparent that this case was not concerned with revocation, but with a second exercise of the power in a way not wholly consistent with the first exercise. It may be that the ability to re-exercise a power in a way which is partially inconsistent with an earlier exercise of power can have extracted from it as a corollary the proposition that one may revoke entirely an earlier exercise of power. But the internal workings of the steps necessary to arrive at that outcome are not obvious. I do not think, therefore, that it would be correct to say that Parkes Rural has as its ratio decidendi that s 33(1) can be used to revoke an earlier decision.
Subsequent to Parkes Rural, there have been a number of decisions which, based on the above statement, have reasoned that the power in s 33 (or its analogues) can be used to vary or revoke a decision. Examples include Gorman v Health Care Complaints Commission [2000] NSWSC 1228 at [34] per O’Keefe J; Mauger v Wingecarribee Shire Council [2015] NSWSC 1022 at [91] per Davies J; and the dissenting judgment of Kourakis J in Southlink Pty Ltd v WorkCover Corporation of South Australia [2009] SASC 175 at [340].
However, acceptance has not been uncritical or uniform. For example, in Bond Corporation Holdings Ltd v Australian Broadcasting Tribunal (1988) 84 ALR 669 Gummow J, having affirmed the orthodox proposition that s 33(1) meant that the donee of the power was never functus officio, reserved his position on whether the statement of Glass JA was correct to the extent that it suggested that s 33(1) might be used to reverse an earlier decision in a way which was adverse to a party (at 678). On the other hand, this concern appears to have receded in his Honour’s mind by the time of the decision in Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193. There Gummow J (with whom Ryan J agreed on this issue) explained the matter this way (at 218-219):
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: cf Laker Airways Ltd v Department of Trade [1977] QB 643 at 707, 708-709, 728. 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: Southend-on-Sea Corp v Hodgson (Wickford) Ltd [1962] 1 QB 416; Rootkin v Kent County Council (supra) at 1195. These principles were affirmed in the application of the Migration Act in Re Chan and Minister for Immigration and Ethnic Affairs (1977) 17 ALR 432, per Smithers J (at 441-442) and in Dallikavak v Minister for Immigration and Ethnic Affairs (1985) 9 FCR 98, per Northrop and Pincus JJ (at 103-104). I would respectfully agree with what was there said, that if a deportation order is revoked, there is power to make another deportation order in reliance upon the same facts as those upon which the previous deportation order was based.
Strictly, this too was an obiter dictum on the issue of revocation. In Kurtovic, the question was not whether a previous exercise of a power could be revoked. Rather, it was whether a power could be re-exercised where it had previously been revoked.
Finally, mention should be made of the Victorian Court of Appeal’s decision in Kabourakis v Medical Practitioners Board of Victoria (2006) VAR 449. The principal reasons for judgment were given by Nettle JA, with whom Warren CJ and Chernov JA agreed. A complaint had been made about Dr Kabourakis’ treatment of a patient who had died. A panel appointed by the board which was dealing with the complaint concluded that he had not engaged in unprofessional conduct. A complaint was made to the Ombudsman who recommended that the inquiry be re-opened. The board sought to reopen the inquiry under a different provision, and Dr Kabourakis sought a declaration that the board was functus officio by reason of its first decision.
The case was concerned with the Victorian equivalent of s 33 (s 40 of the Interpretation of Legislation Act 1984 (Vic)). Nettle JA rejected (at [82]) an attempt to apply Parkes Rural directly, distinguishing it on the basis that it had been concerned with the question whether successive inconsistent certificates could be issued under one provision, whereas Dr Kabourakis’ case was about whether he could be subjected to a disciplinary process a second time under a different provision. Nettle JA put it this way at [82]:
As I see it, however, that is not so. Parkes was concerned with the question of whether the power to issue certificates from time-to-time under s 8(3) of the Petroleum Products Subsidy Act carried with it power to rescind and replace previous exercises of the power to issue certificates under s 8(3). In point of principle that is a different question to whether the power to act from time-to-time under one section of an act (such as s 25(7) of the Act) carries with power to rescind and replace previous exercises of another power under another provision of the Act (such as s 39). Nothing in Parkes suggests that the power to exercise a statutory power from time-to-time imports a power to rescind and replace previous exercises of a different statutory power.
So the primary conclusion was that Parkes Rural was silent on the issue before the Court. However, Nettle JA went on to doubt the reasoning in Parkes Rural. At [83]-[85] his Honour pointed out, with respect correctly, that Lawrie v Lees was about a rather special situation. His Honour did not observe, as I would, that the critical passage in Lawrie v Lees was an obiter dictum unrelated to any issue in the case. At [84] Nettle JA did, however, say this:
While, however, it is true that Lawrie v Lees did hold that a power exercisable from time-to-time may be so exercised as to add to, subtract from or reverse the result of the previous exercise of the power, it needs to be understood that the case was concerned with the power of the Lord Chancellor under s 3 of Sir H Meux’s Settled Estate Act 1863 to make orders “from time-to-time” for the purposes of administering the affairs of the partnership of which Sir Henry Meux was a member before he became a lunatic. With respect, it is drawing a long bow to conclude that, because the Lord Chancellor’s power to make orders from time-to-time for the purposes of the administration of a lunatic’s estate imported power to add to vary or revoke a previous order, the effect of s 32 of the Interpretation Act was to enable to the repository of the power to issue certificates under a provision like s 8(3) of the Petroleum Products Subsidy Act to revoke and replace an issued certificate. The decisions in Re 56 Denton Rd, Twickenham, Walter Construction Group Ltd v Fair Trading Administration Corporation, Export Development Grants Board v EMI (Australia) Ltd and Firearm Distributors v Carson all suggest the contrary.
This is an obiter dictum but it is a considered one. Were it not for the fact that I have concluded that s 33(1) necessarily carries with it as a matter of implication a power of revocation, I too would be unpersuaded by Lawrie v Lees. On the other hand, and with respect, I am not sure that I can agree that the authorities his Honour referred to at [84] are against the proposition that s 33(1) can be used to revoke an earlier decision. My reading of them is that they each held that the operation of the equivalent of s 33(1) had been excluded by the surrounding statutory context, rather than that the power itself did not extend to revocation. InRe 56 Denton Rd, Twickenham [1953] Ch. 51 concerned a decision of the War Damage Commission. The Commission could award compensation to the owners of property damaged by the enemy. Having adopted one approach to the issue of compensation, the Commission then adopted another. Vaisey J thought that where a decision was made which affected rights, and which had been communicated in a way which appeared final, it could not thereafter be withdrawn. I do not read these reasons as indicating that s 32(1) of the UK Act could not be used to revoke an earlier decision. I would read this only as having been a situation where a contrary intention was revealed. That reading of InRe 56 Denton Rd, Twickenham as being concerned with the expression of a contrary intention was expressly adopted by Gummow J in Kurtovic at 211-212.
Walter Construction Group Limited v Fair Trading Administration Corporation [2004] NSWSC 158 also does not appear to be authority for the proposition that s 33(1) (or an equivalent) can never be used as a power of revocation. What Grove J said in that case (at [40]) was:
I do not construe that provision as vesting a power to make and unmake decisions infinitely. If power does not stretch to infinity, there must be in the circumstances of a particular case and “as occasion requires” a terminus. In this case it was reached with the communication of decision by the letter of 24 October 2002.
But there are many re-exercises of power coming before ‘infinity’, and in respect of these it seems clear that Grove J was accepting that the NSW equivalent to s 33(1) could be used to revoke an earlier exercise of power. No doubt as a matter of interpretation, and in particular as in InRe 56 Denton Rd, Twickenham, where rights are being affected and communicated in an apparently final way, s 33(1) may be implicitly excluded, but that is not to say that s 33(1) does confer a power of revocation when it is not excluded.
In the case of Re Export Development Grants Board v EMI (Australia) Limited and Thorn EMI Electronics Pty Limited [1985] FCA 284 it was explicit that the Full Court’s conclusion concerned the presence of a contrary intention. It was not a statement that s 33(1) could not be used as a power of revocation. At [40] the Full Court (Bowen CJ, Woodward and Fisher JJ) observed:
Reference was made to the Acts Interpretation Act 1901, sub-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 sub-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 sub-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 re-assess. In our opinion, a contrary intention appears in the Act.
(Emphasis added.)
The same is also true of Firearm Distributors Pty Ltd v Carson [2000] QSC 159 at [33]. I would accept that all of these cases (and for that matter Kabourakis) establish that where the statutory scheme provides for a decision concerning rights following on some process of formal determination, this will usually exhibit a sufficient contrary intention to prevent s 33(1) from applying. However, to the extent that Nettle JA in Kabourakis suggested that these decisions show that s 33(1) is not itself a source of a power to revoke, I must respectfully disagree.
In those circumstances, I conclude that s 33(1) may be used to revoke an earlier exercise of power. There are opposed considered appellate dicta (Kurtovic and Kabourakis). My analysis of the text of s 33(1) satisfies me that I should follow the Kurtovic line. I would note for completeness that this conclusion appears to be in line with the Supreme Court of Canada’s decision in Comeau’s Sea Foods Ltd v Canada [1997] 1 SCR 12, where Lawrie v Lees was applied directly to a revocation situation.
Other arguments about s 33
There were two further arguments between the parties about the content of s 33(1). First, the Foundation advanced an argument that s 33(1) did not contain a power of revocation because it was clear that where s 33 intended a power of revocation to exist, it had used the word ‘revoke’. It pointed to s 33(3) which allows a statutory instrument, in terms, to be revoked. Secondly, the incoming Minister submitted that if s 33(1) did not include a power of revocation, then his decision should be understood as a decision to direct a payment of $0.
The Foundation’s additional argument should be rejected. Subsections 33(1) and (3) as they presently provide are set out above at [20]. In form this argument is an example of the principle of statutory construction that no inference should be drawn about the operation of a provision in a statute if it goes against the express words Parliament has used: expressum facit cessare tacitum. Dixon J put it perhaps more clearly in The King v Wallis; ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529 at 550:
This accords with the general principles of interpretation embodied in the maxim expressum facit cessare tacitum and in the proposition that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course.
Reduced to its essentials, the Foundation’s argument is that because s 33(3) deals expressly with the topic of revocation, it should be inferred that s 33(1) does not.
Subsections 33(1) and (3) have undergone changes in the 115 years since they were first enacted. But, as explained above, both can be traced back to s 32 of the Interpretation Act 1889 (UK), and s 33(1) can be traced back further to the General Clauses Act 1887 (India). This is not so in the case of s 33(3), which does not appear in the Indian statute. Curiously, an equivalent to s 33(3) did exist in the Acts Shortening Act 1852 (NSW). This may suggest a closer relationship between that Act and the Interpretation Act 1889 (UK), but there is no way to resolve that issue and, for the purposes of these reasons, it does not matter.
It is useful to begin then with the relationship which existed in 1889 between ss 32(1) and (3) of the Interpretation Act 1889 (UK). As passed, they were as follows:
32.(1.)Where an Act passed after the commencement of this 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.
…
(3.)Where an Act passed after the commencement of this Act confers a power to make any rules, regulations, or byelaws, the power shall, unless the contrary intention appears, be construed as including a power, exerciseable in the like manner and subject to the like consent and conditions, if any, to rescind, revoke, amend, or vary the rules, regulations, or byelaws.
There are two available views on how these two provisions initially interacted. One is that the topic of revocation was dealt with exclusively by s 32(3) so that whatever the content of the power in s 32(1), it could not include a power which could be used to revoke an earlier decision.
The other view of the two provisions is that s 32(3) was directed to the topic of by-laws, rules and regulations, whereas s 32(1) was not. On this view, the two provisions simply operated in relation to different subject matters. Subsection 32(3) could be used in relation to by-laws, rules and regulations, whilst s 32(1) could only be used in relation to exercises of statutory power which did not result in by-laws, rules or regulations.
Both of these arguments involve the drawing of a negative implication from the text of ss 32(1) and (3). They differ only as to the nature of the negative implication which is to be drawn. One is a negative implication about the subject matter of the powers to which each provision applies. The other is a negative implication as to the ways in which those powers may be exercised. Both views seek to avoid redundancy in the provisions by ensuring that they do not intersect in the fields of their operation. Either construction achieves that outcome.
Despite that, it is tolerably clear that it is much more likely that the Parliament intended s 32(3) to be an exhaustive statement about ‘by-laws, rules and regulations’, rather than an exhaustive statement about ‘revocations’. Subsection 32(3) did not solely concern revocation; in fact, the language it used was ‘rescind, revoke, amend, or vary’. If s 32(3) had operated as an exhaustive statement of the circumstances in which the exercise of a power could be revoked, then it must also have operated as an exhaustive statement of the circumstances in which such an exercise of power might be rescinded, amended or varied. This is so because there is no textual mechanism by which the various expressions might be distinguished from this perspective.
But if s 32(3) had operated exhaustively in that manner, then there would have been no work left for s 32(1) to do. That provision, once shorn of any ability to vary, amend or revoke a particular exercise of power, leaves open only the possibility of exercising the power in the same way as the initial exercise. There would be no purpose to s 32(1) so construed. This suggests, therefore, that s 32(3) did not operate exhaustively with respect to the functions of revoking, rescinding, amending or varying, but instead operated exhaustively with respect to the topic of regulations, by-laws and rules. It follows that revocation is not excluded from s 32(1). On the other hand, that requires one to accept that ss 32(1) and (3) did have different fields of operation which did not overlap. As originally enacted this would entail that s 32(3) applied to exercises of statutory power which resulted in rules, regulations or by-laws, and s 32(1) applied to the balance of all other statutory powers to which s 32 applied.
With minor immaterial differences, this form of ss 32(1) and 32(3) was carried over into ss 33(1) and 33(3) of the Acts Interpretation Act as originally enacted. The structural relationship described in the preceding paragraphs was thereby preserved.
It is then necessary to trace through the changes made to s 33 over time, to ascertain whether that structural relationship was maintained.
Subsection 33(3) was first amended in 1941 by the Acts Interpretation Act 1941 (Cth). The second reading speech explained the purpose of the amendments as follows:
Opportunity has also been taken, in drafting the bill, to amend section 33 of the Principal Act in order rectify an omission that occasionally is the cause of some inconvenience. At present, subsection 3 of section 33 provides that a power to make rules, regulations or bylaws shall be construed to include a power to rescind, revoke, amend or vary such rules, regulations or by-laws. The expression “rules, regulations or bylaws” does not, however, exhaust the instruments which may be made under an act. It will readily be appreciated by honorable members that if a power be conferred to make or issue any instrument under an act, then the power to repeal or amend that instrument at some later date is necessary, even though the instrument does not fall under the description of “rules, regulations or by-laws”. Examples of instruments not at present covered by the expression are proclamations and orders. Consequently, the bill proposes to amend the sub-section so that it will refer to any instrument made, granted or issued under a power conferred by an act.
The amendments, in fact, made two changes. The first was to replace ‘rules, regulations, or by-laws’ with ‘instrument (including rules, regulations or by-laws)’ as contemplated in the second reading speech. The second was to replace ‘rescind, revoke, amend or vary’ with ‘repeal, rescind, revoke, amend, or vary’. This only had the effect of adding ‘repeal’. It is unlikely that this had any substantive impact on the provision.
Although the purpose of the first of these changes appears to have been to ensure that the word ‘instrument’ was interpreted broadly, this did not occur. A series of decisions thereafter suggested that the power in s 33(3) was limited to instruments of a legislative character: see, e.g., Australian Capital Equity v Beale (1993) 114 ALR 50 at 63. This question was, however, an unsettled one and its unsatisfactory state was usefully summarised, with respect, by Finkelstein J in Leung v Minister for Immigration and Ethnic Affairs (1997) 150 ALR 76 at 84. The question became moot in 2011 on the passage of the Acts Interpretation Amendment Act 2011 (Cth), which changed the expression used in s 33(3) to its current form of ‘instrument of a legislative or administrative character’.
Two matters emerge from these events. First, the changes made in both 1941 and 2011 proceeded on an assumption that s 33(1) could not have been used to achieve the desired outcome. In that sense, both sets of changes are consistent with the structural relationship between ss 33(1) and (3) which I favour. Secondly, nothing in this legislative history provides any support for the idea that the original relationship between the provisions was intended to be disturbed by the amendments.
It follows that the Foundation’s argument should not be accepted. It is true that ss 33(1) and (3) do not have an overlapping operation, but this is because one deals with instruments and the other with exercises of statutory power not resulting in instruments.
For completeness, it might be noted that the Minister expressly eschewed any suggestion that the document entitled ‘Aboriginals Benefit Account Direction 2013 (No. 11)’ (set out at [12] above) was an ‘instrument’ for the purposes of s 33(3).
I would also reject the incoming Minister’s additional submission that even if s 33(1) did not include a power of revocation, he could nevertheless make a direction that a payment of $0 be made and this would bring about the same outcome. As a matter of fact, this is not what occurred. The incoming Minister has never made such a direction. The question of whether he could make such a direction therefore does not directly arise in this case.
3. Whether the Land Rights Act evinces a contrary intention for the purposes of s 2(2) of the Acts Interpretation Act
The trial judge accepted the Foundation’s argument that the scheme of the Land Rights Act demonstrated a sufficient contrary intention to displace the operation of s 33(1). There were four strands to the argument, each of which was also advanced in this Court.
The first was that s 64(4) created an immediately existing obligation to pay. The words in s 64(4) ‘[t]here must be debited’ could be seen as having no other meaning. Further, once the direction was made, s 64(7) required that the amount debited from the Account ‘must be paid or applied in accordance with the direction’. Whichever way one examined the matter, so the argument ran, the making of the direction set in train a series of events expressed in mandatory language. It would be surprising, if once that process had been commenced, it could be interrupted by the exercise of a power of revocation in s 33(1).
Although the Foundation sought to depict s 64(7) as showing the inevitability of the payment, in my opinion, the provision shows the opposite. The direction made under s 64(4) may have attached to it conditions under s 64(5A), and these may include, obviously enough, timing stipulations. What s 64(7) ensures is that any additional requirements caught up in the direction are enforced. One such restriction would include a direction that the amount be debited by a particular date or not until after such a date. Further, the power to impose conditions under s 64(5A) could result in a situation where the conditions were not satisfied. For example, a direction to pay might be subject to a condition that the recipient lodge financial information of a particular kind by a particular date. If that condition were not satisfied, the Foundation’s argument would lead to the situation that even though the direction might never be given effect to (because s 64(7) would never permit the payment to be made), nevertheless the Minister would remain powerless to revoke the direction which would, on this view, forever remain in place.
So to reason is not to advance an argument that s 64(4) should be construed to include a power of revocation. Rather, it is an observation which makes it difficult to conclude that the statutory context of s 64 evinces an intention to the contrary.
Secondly, the trial judge then focussed on s 64(5B), which provides for the recovery of grant monies if a condition which was to be satisfied had not been satisfied. His Honour reasoned that there would be little point to such a provision if the revocation by the Minister of the earlier direction under s 64(4) could bring about the same result. There are two aspects of this from which I would respectfully differ. The first is that the observation is of no assistance in determining the issue involved in this proceeding, which is instead whether the direction can be revoked before any money is paid. The second is that it is by no means obvious, in any event, that even if the money had been paid pursuant to the direction, it would be recoverable if the direction were then revoked. It could not be said that the Commonwealth had paid the money under a mistake because a revocation is not, for the reasons I have given, retroactive. Nor would there be a failure of consideration, because at the time of the payment the direction was in place. The subsequent non-retroactive revocation of the direction has no effect on that situation. This may be contrasted with a situation where money is paid under a judgment which is subsequently reversed. There the revocation is retroactive: see Edelman J and Bant E, Unjust Enrichment (2nd ed, Hart Publishing, 2016) p. 265. In this case, all that has happened is that the Minister has changed his mind. If the money had been paid before he did so, it could not be said that this would result in an outcome that was unjust if the recipient did not give it back. On this alternative scenario, the fact would remain that the payment was authorised at the time it was made. In those circumstances, I do not accept that a restitutionary remedy would be available.
Thirdly, the trial judge drew attention to s 35A. One of the obligations imposed on the Minister by s 64(3) was a particular obligation to remit to a Land Council on whose land mining operations were conducted 30% of the royalty revenue. This royalty revenue was then required to ‘trickle down’ to Aboriginal and Torres Strait Islander corporations whose members lived in areas affected by the mining operations. However, unlike the fixed proportion of 30% of the revenue which was directed to the overarching Land Council, the Act does not fix a precise amount to be passed on to these downstream corporations. Instead, s 35(2) provides for the upstream Land Council to determine the proportions in which the various downstream corporations are to share the revenue. Section 35A is part of the calculus for determining that proportion. Subsection 35A(1) sets out the various matters which a Land Council must take into account in making a determination such as, for example, financial reports. Subsections 35A(2) and (3) then provide:
35A Making of determinations under subsection 35(2), (3) or (6)
…
(2)A determination under subsection 35(2), (3) or (6) must be in writing and must specify the period, not exceeding 5 years, for which it is in force.
(3) A Land Council may vary or revoke a determination under subsection 35(2) or (3). The variation or revocation must be in writing.
The argument is that in the context of grants under s 64, the Parliament has expressly given a power of revocation in relation to a determination under s 35A(3). Hence, it is less likely that s 33(1) applies to s 64(4). I do not accept this argument. The subject matter of s 35A(3) is an instrument setting out a proportion which can stay in place for up to 5 years. In my opinion, s 35A(3) is not a comparable subject matter to s 64(4). The content of one does not have any impact on the meaning of the other.
The Foundation’s final argument drew upon a line of cases culminating in Kabourakis which held that a decision effecting a determination could not be revisited. These included the decisions earlier referred to in In Re56 Denton Rd, Twickenham, Re Export Development Grants Board v EMI (Australia) Ltd (1985) 9 FCR 269 and Firearm Distributors Pty Ltd v Carson [2000] QSC 159, [2001] 2 Qd R 26 at 30. They also included my own decision in Cassaniti v Tax Agents Board of New South Wales (2009) 179 FCR 1. In that case I accepted, in principle, that the Tax Agents Board could not repeatedly discipline a tax agent for the same conduct by means of s 33(1). But each of these cases was concerned with something approaching a formal decision-making process which resulted in a decision which would ordinarily be expected to be final. In Kabourakis, the panel in question had concluded that Dr Kabourakis had not engaged in unprofessional conduct. In In Re 56 Denton Rd, Twickenham, the conclusion was that the property which had been partially demolished had a particular character. In Re Export Development Grant, the Board had to assess the earnings increment for a particular year. And, in Firearm Distributors, the decision-maker had determined what quantum of compensation was due to a plaintiff.
What all of these cases have in common, as the Minister correctly submitted, is that they all involve the adjudication of an entitlement to a benefit based upon demonstration of specified criteria. I would accept that where an essentially adjudicative function is involved, there will ordinarily be an implication that the statutory power involved is not intended to be re-exercised where it appears that it has been exercised in a fashion intended to be final: cf. Firearm Distributors at [40] and, in a slightly different context, Leung v Minister for Immigration and Multicultural Affairs (1997) 79 FCR 400 at 410.
This is not such a case. The former Minister was not adjudicating any entitlement of the Foundation. She was merely determining a grant application. I would not discern from such a statutory framework any intention to oust the operation of s 33(1).
4. Orders
The appeal should be allowed with costs. The orders of the primary judge made on 23 November 2015 should be set aside and in lieu thereof it should be ordered that the originating application be dismissed.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate:
Dated: 3 March 2017
REASONS FOR JUDGMENT
MORTIMER J:
I have had the advantage of reading the reasons for judgment of Perram J. I take a different view of the application and scope of s 33(1) of the Acts Interpretation Act 1901 (Cth), which has led me to a different view on the outcome of the appeal, but I gratefully adopt Perram J’s summary of the circumstances in which the issues concerning s 33(1) arise in this proceeding, and I do not propose to repeat them.
I agree with his Honour’s conclusion (at [17]) that the proper characterisation of the Minister’s decision in this case is that he revoked the earlier direction made by the previous Minister, rather than that he made a decision and gave a direction that $0 be paid to the respondent. I prefer not to express a view on the matters regarding the conclusion of a funding agreement in [13] to [14] of Perram J’s reasons, which in my opinion are unnecessary to decide for the purposes of this appeal.
In summary, the view I take is that, on the assumption that the approach taken by Perram J to s 33(1) is correct, there is a contrary intention evinced by the scheme of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (Land Rights Act) as a whole (and Pt VI of the Act, in which s 64(4) is contained, in particular), so that s 33(1) is not applicable. That is a sufficient basis on which to determine the appeal. However, had I not been satisfied of the existence of a contrary intention, in my opinion, the scope of s 33(1) does not extend to a general implication of an additional power to reverse or undo an exercise of power, whether by revoking a decision made in the exercise of a power or otherwise.
A contrary intention is present in the Land Rights Act
I respectfully agree with the following statement made by Lander J in Minister for Immigration and Multicultural and Indigenous Affairs v Watson [2005] FCAFC 181; 145 FCR 542 at [118] as to the location of a contrary intention:
The contrary intention may appear not only in the particular legislative provision which creates the power but also in the Act as a whole: Pfeiffer v Stevens (2001) 209 CLR 57 per Gleeson CJ and Hayne J at [20] and McHugh J at [56].
The parties’ submissions tended to focus on the terms of s 64(4) in isolation from the other provisions in s 64, and in further isolation from the whole of the Act. In my opinion, the scheme of the Land Rights Act, and the scheme for the making of grants from the Aboriginals Benefit Account in particular, evinces an intention contrary to the implication for which s 33(1) provides, even if that implication is to be construed as Perram J sets out.
The Land Rights Act serves a number of discrete, and quite different, purposes. What those purposes have in common is the use of Aboriginal land (as defined) in the Northern Territory, and the control, protection, benefits and other rights and responsibilities that are to flow to Aboriginal people, and those who act on their behalf, in the Northern Territory as a result of the use and exploitation of Aboriginal land. It is under Pt III of the Land Rights Act that Aboriginal Land Councils are created, by reference to geographic regions (see ss 21 and 21C). By s 23, Land Councils have a broad range of functions, including functions of representation, advice, agency, protection, consultation, development assistance – all in relation to Aboriginal land held in the Northern Territory. The Land Councils also have some supervisory functions over Aboriginal Land Trusts established under Pt II of the Land Rights Act.
Part VI deals with the “Aboriginals Benefit Account”, which the note to s 62(1) states was established under s 5(3) of the Financial Management Legislation Amendment Act 1999 (Cth). Section 62(1) continues the Account in existence.
Funds are credited to the Account pursuant to s 63. As the facts of the current proceeding illustrate, the size of the fund, and the size of payments which may be made from it for the benefit of Aboriginal people, are considerable indeed. The source for the funds is mining royalties “received by the Commonwealth or the Northern Territory in respect of a mining interest in Aboriginal land”. Subject to determinations made by the Minister under s 63(2) and (3) (which in substance allow the Commonwealth in certain circumstances to retain for itself, and not pay into the fund, monies received by reason of an increase in mining royalties), all mining royalties are to be paid into the Account. Again, in my opinion there is no suggestion from the text, context or purpose of the determination power conferred on the Minister in s 63(2) and (3) that Parliament intends the Minister may revoke such a determination. What the Minister would be able to do (irrespective of s 33(1), in my opinion) is to make a determination which altered (upwards or downwards, including removing) the part of the royalties increase not payable to the fund but payable to the Commonwealth. The Minister would achieve this by simply making a new determination, which would operate prospectively.
Mr Kurtovic had been convicted of an offence (manslaughter) which exposed him to deportation under the Migration Act and indeed such an order was made. However, after representations, the Minister decided to revoke the deportation order and instead “warned” Mr Kurtovic that any further conviction rendering him liable to deportation would “weigh heavily” against him when the Minister reconsidered his case. This revocation occurred under s 20 of the Migration Act (as it then stood), which contained an express power of revocation. At this time, Mr Kurtovic was seeking parole in relation to his manslaughter sentence. His parole application, and appeal, were refused, however in doing so the Supreme Court of New South Wales made some observations about his offending which caused the Minister to reconsider whether Mr Kurtovic should be deported. Acting on a Departmental recommendation, the Minister decided to issue a further deportation order. It was common ground there was no material change in circumstances – in the sense that Mr Kurtovic had not committed any further offences, or engaged in any further conduct than existed at the time the first deportation order was revoked. It should be noted that the relevant deportation power (at that time, in s 12 of the Migration Act) was expressed in a way which, provided the preconditions were satisfied (as to non-citizenship and conviction for an offence within the precondition), the Minister had a broad discretionary power:
… the Minister may order the deportation of the person.
It should be recalled that the challenge by Mr Kurtovic involved several grounds, including an argument that the Minister was estopped from reconsidering whether to deport him. The estoppel argument had succeeded before the primary judge, but did not succeed in the Full Court. It is apparent from the Court’s reasons for judgment that the estoppel arguments are seen as connected to the resolution of the power argument that involved s 33(1). On the latter issue, and relevantly for present purposes, Mr Kurtovic contended that the power conferred by s 12 had been exhausted by the making of an initial deportation order (in July 1984) and its eventual revocation (pursuant to s 20, in November 1985), at least where there were no significant changes in circumstances relevant to the exercise of the power conferred by s 12 between the date of the revocation and the making of the second deportation order in January 1988. Thus, Mr Kurtovic contended s 12 provided no authority for the making of the second deportation order.
It can be seen that Kurtovic is not a case about revocation. It is a case about the authority to re-exercise the same statutory power. It is also a case about re-exercise of a power in the same way, or with the same outcome, as the first exercise. No party contested the revocation in November 1985 (because it was undertaken pursuant to s 20 of the Migration Act as it then stood, which expressly authorised revocation). The contest was over the exercise, for the second time, of the power in s 12 to make a deportation order in relation to the same individual and on the basis of, in substance, the same circumstances.
Neaves J found (at 195) that:
There is nothing in the language of s 12, or in the context in which it appears, to warrant the conclusion that Parliament intended that, absent any change in relevant circumstances, the power was to be regarded as spent upon its initial exercise in relation to a particular non-citizen. The power is, in my opinion, clearly one which may be exercised from time to time as occasion requires.
This statement by Neaves J would apply, for example, if the first exercise of power resulted in a determination that a person should not be deported. It is not a statement which expands, or alters, the nature or content of the power in s 12, in contrast to an implication that s 12 authorised revocation or reversal of a previous exercise of power. It proceeds, correctly in my respectful opinion, on the basis that the power to reverse, revoke or undo the making of a deportation order lies elsewhere in the scheme.
Ryan J also held the s 12 power was exercisable from time to time in relation to the same individual and the same circumstances. His Honour placed some weight on the nature of the power as a “public discretion” (at 200), and drew a link between the failure of the estoppel argument and the nature of the power as one exercisable from time to time. Ryan J agreed with the reasoning of Gummow J concerning why the Minister’s power under s 12 had not been exhausted by its previous exercise.
It is apparent from Gummow J’s reasons at 208 that his Honour also saw a connection between the rejection of the estoppel argument (assuming, contrary to his Honour’s opinion, that there had been a sufficiently clear representation to trigger an estoppel) and the proposition that the power in s 12 was exhausted by one exercise in relation to a particular individual:
Rather, in the present case, the respondent seeks to prevent the appellant from making a decision within the latter’s power which would have the effect of altering a previous intra vires decision. The respondent is then met with the objection that to allow an estoppel in this context would hinder or prevent further exercise of the statutory discretion.
And at 210:
The same limitation has been said by high authority to apply where there is no duty to act, but merely a discretionary power. This has been put on the basis that in a case of a discretion, there is a duty under the statute to exercise a free and unhindered discretion and an estoppel cannot be raised (any more than a contract might be relied upon) to prevent or hinder the exercise of the discretion; the point is that the legislature intends the discretion to be exercised on the basis of a proper understanding of what is required by the statute, and that the repository of the discretion is not to be held to a decision which mistakes or forecloses that understanding: see New South Wales Trotting Club Ltd v Municipality of Glebe (1937) 37 SR (NSW) 288; Cudgen Rutile (No 2) Pty Ltd v Chalk [1975] AC 520 at 533; Southend- on-Sea Corp v Hodgson (Wickford) Ltd [1962] 1 QB 416 at 423-425.
(Emphasis added.)
It is significant that, in this passage, Gummow J confines the principle to circumstances where the repository of the power has, on the first exercise of the power, “mistaken” or “foreclosed” a proper understanding of what is required of the repository in the exercise of the statutory discretion. That is, the policy in precluding an estoppel argument is to advance the lawful exercise of a discretionary power, even if through a re-exercise. This, of course, was the approach which later came to the forefront in Bhardwaj.
At 211, in the part of his Honour’s reasons dealing with the concept of functus officio and the role of s 33(1), Gummow J continued to articulate the connection, although acknowledging the primacy of the statute in determining whether re-exercise could occur, even if:
… 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.
This, Gummow J continued (at 211), explains the decisions in Livingstone and Re 56 Denton Road. His Honour sought to distinguish Livingstone and Re 56 Denton Road, by reference to the decision of Rootkin v Kent County Council [1981] 1 WLR 1186, an authority relied on by the appellants before us. In Rootkin, Eveleigh LJ said (at 1197):
Counsel has argued that the decision to pay the fare was irrevocable, even if mistaken, and he has relied upon the principle in Livingstone v. Westminster Corporation [1904] 2 K.B. 109. That principle of irrevocability may well be applicable when there is a power or a duty to decide questions affecting existing legal rights. In Livingstone v. Westminster Corporation itself the council were concerned to assess compensation for loss of office, to which compensation the plaintiff had a right under the Local Government Act 1899. Generally speaking, however, a discretionary power may be exercised from time to time unless a contrary intention appears.
Lawton LJ had expressed a similar view at 1195. The parallels with the concepts underlying the doctrine of functus officio (especially their judicial antecedents) are apparent. Irrevocability is linked to the performance of a function or duty which brings finality to the determination of legal rights. What is and is not for this purpose a “right” is rather more narrowly confined than modern authorities determining whether an exercise of power (including discretionary power) affects the “rights or interests” of a person: see Annetts v McCann [1990] HCA 57; 170 CLR 596. Perhaps one explanation for such a rigid approach to irrevocability of the kind expressed by Lord Eveleigh may stem from the more fluid approach to judicial power in the United Kingdom than that which exists in Australia. To say, as it was put in Rootkin, that an administrator was determining an existing legal right would be a problematic statement in Australian law: see R v Kirby; Ex Parte Boilermakers Society of Australia [1956] HCA 10; 94 CLR 254 at 281-282 (Dixon CJ, McTiernan, Fullagar and Kitto JJ); South Australia v Totani [2010] HCA 39; 242 CLR 1 at [220] (Hayne J), [444] (Kiefel J).
The difficulty is that there is no clear distinction between statutory duties or functions and discretionary powers of this kind in the authorities (even in the English authorities). That is unsurprising given the spectrum and complexity of statutes under which powers and functions are conferred. The deportation and removal cases are an illustration. Those exercises of power, discretionary in nature, affect legal rights (notably, the right to liberty) but yet have been found not to be irrevocable, Kurtovic being but one example. Others include Re Chan and Minister for Immigration and Ethnic Affairs (1977) 17 ALR 432 and Dallikavak v Minister for Immigration and Ethnic Affairs (1985) 9 FCR 98 (discussed below). Of course, as I have noted above, those exercises of power do not, and could not in Australian law, determine an existing legal right, but they do affect the rights and interests of a person – so much is well established. That is why the distinctions made in cases such as Rootkin are unsatisfactory in the Australian context.
Gummow J also referred to the Full Court decision in Dallikavak and the decision of Smithers J sitting as a presidential member of the Administrative Appeals Tribunal in Chan, both decisions taking a similar approach to the deportation power in s 12. Again, however, it is apparent that these cases were dealing with a re-exercise of the power in circumstances where a revocation was supported by an express power in s 20 of the Migration Act. See, for example, the way the majority of the Court in Dallikavak expressed the point (at 103-104 per Northrop and Pincus JJ):
We would add that if the Minister, having made a deportation order, subsequently becomes aware of circumstances which lead him to doubt the correctness of his order, or to come to the view that its correctness might need lengthy re-examination, he may revoke the order. If that happened, the person affected would cease to be a deportee under the Act but would remain a prohibited non-citizen and be subject to all the restrictions imposed by the Act on persons of that status. If on re-examination the Minister is of opinion that the order should again be made, no new grounds are necessary, in our view: see the decision of Smithers J. in Re Chan and Minister for Immigration and Ethnic Affairs (1977) 17 ALR 432 at 441-442. See also Acts Interpretation Act 1901 (Cth), s 33(1).
(Emphasis added.)
Thus, one of the difficulties, in my respectful opinion, with the analysis in Kurtovic and its reliance on earlier authorities is the failure to distinguish clearly between cases where what was in issue was the power of revocation itself, and cases where what was in issue was a re-exercise. In the former case, a focus on the effect of such an implication on the rights and interests of those affected is understandable. In the latter, an effect on the rights and interests of those affected is precisely what the statute contemplates by conferring the power in the first place.
Kurtovic was really a case concerning re-exercise rather than revocation. There is also the difficulty that, where Gummow J expresses his conclusion (at 218), aside from noting that once its preconditions are satisfied s 12 “does not purport to constrain the way in which the discretion is exercised”, there is no real analysis regarding why s 33(1) extends to implying a power to revoke or reverse a decision. His Honour is not, in my respectful opinion, in any event deciding that s 33(1) applies to expand the scope of s 12 in that way. Section 20 expressly provided for such a power.
There remains the decision of the Victorian Court of Appeal in Kabourakis to consider. Nettle JA gave the leading judgment, with Warren CJ and Chernov JA agreeing. The facts concerned a decision of a panel of a medical board constituted under Victorian legislation which determined that the appellant, a medical practitioner, had not engaged in unprofessional conduct. The complainant was dissatisfied and after an investigation the Victorian Ombudsman recommended the board re-open its investigation and reconsider the allegations against the appellant, which it did, by notifying the appellant there would be a further hearing. The appellant contended the medical board was functus officio and had no power to re-open its investigation, having already reached a conclusion on the allegations. The primary judge did not agree, but the Court of Appeal accepted the appellant’s contention. At [47], Nettle JA concluded:
… the effect of the Act properly understood is that a finding of the panel is final and binding except upon appeal or review.
His Honour continued, at [48], to deal with what he considered to be the situation in relation to the exercise of statutory administrative powers:
Self evidently, an administrative decision has only such force and effect as is given to it by the law pursuant to which it is made. As was pointed out in Bhardwaj, parliament may give an administrative decision whatever force it wishes. Consequently, as the judge made plain, the question in this case comes down to whether the statute manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen. But, as was also said in Bhardwaj, as a rule a statutory tribunal cannot revisit its own decision simply because it has changed its mind or recognises that it has made an error within jurisdiction. More often than not, 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 the paramount consideration, and the statutory scheme, including the conferring and limitation of rights of review on appeal, will be seen to evince an intention inconsistent with capacity for self correction of non-jurisdictional error. In the bulk of cases, logic and commonsense so much incline in favour of finality as to permit of no other conclusion.
(Footnotes omitted.)
Nettle JA indicated (at [49]) that Re 56 Denton Road was another example of this approach. His Honour then referred (at [50]) to a New South Wales decision in a similar vein:
More recently, in New South Wales, in Walter Construction Group v Fair Trading Administration Corporation [2005] NSWCA 65, Grove J was concerned with claims under a statutory building insurance scheme. His Honour said:
I do not construe that provision as vesting a power to make and unmake decisions infinitely. If power does not stretch to infinity, there must be in the circumstances of a particular case and “as occasion requires” a terminus. In this case it was reached with the communication of decision by the letter of 24 October 2002.
An application for leave to appeal was refused by the New South Wales Court of Appeal. Santow JA, with whom Sheller JA and Tobias JA agreed, referred with apparent approval to the passage set out above.
(Footnotes omitted.)
At [52]-[54], Nettle JA reviewed other authorities consistent with the approach he took. As the extracts in his Honour’s reasons demonstrate, none of those authorities depended solely on the existence of a contrary intention for the purpose of s 33(1) or like provisions. Rather, their principal focus was the nature and context of the statutory power in issue.
Nettle JA then turned to Kurtovic, which he described as of “little assistance”, firstly on the basis that it dealt with deportation, an area of administrative law his Honour described as “different to most others” (at [55]-[56]). With respect, I would disagree that deportation involves, at a level of administrative law principles applied in a statutory context, any substantive differences from other area of administrative law. Although, as his Honour observed, it is an area where statutory discretions are affected by changing policy considerations, there are many areas of public power where this is so. His Honour then also distinguished what he described as the “revenue cases”, again largely by reference to the subject matter and context of the statutory powers, including discretionary powers, under consideration in those cases.
The general approach taken by Nettle JA – that is, to focus on the statutory context and purpose in an assessment of how the question of re-exercise of powers should be approached – is, however, one with which I respectfully agree. In my opinion, as I explain elsewhere in these reasons, those considerations explain (at least, by reference to the evaluation of the judges involved) why there is such a variety of approaches and outcomes apparent in the authorities. At [64]-[80], this was the task his Honour undertook in relation to the legislative scheme before the Court in Kabourakis.
Conclusion on previous authorities
There is no decision binding on a single judge of this Court which is authority for the proposition that s 33(1), properly construed, has the effect of implying into all federal statutes, subject to the existence of a contrary intention, a power to reverse, undo or revoke an exercise of power or the performance of a function, where what is expressly conferred is authority to exercise a power or perform a function. The English authorities are also attended by another difficulty, given their different focus on what “irrevocability” implies about the nature of a power and the determination of pre-existing legal rights, which is ill-suited to Australian law.
Rather, what a review of the authorities demonstrates is that in most cases it is the text, context and purpose of the particular statutory scheme in issue which governs the construction of the scope of the authority of a repository of a statutory power or function. Few authorities, apart from Kabourakis and judgments such as those of Hely J and Lander J in Watson, grapple with the fact that extending a general implication such as that found in s 33(1) to include a power to reverse, revoke or undo an exercise of power or performance of a function changes in a substantive way the nature of the statutory power, rather than describing the manner and circumstances of its exercise. Some of the authorities where language of revocation is used are in fact cases about a re-exercise of a power, with a different outcome to the first exercise. Whether the statute authorises such a re-exercise has rarely turned on the terms of s 33(1).
Conclusion
It is often the case, as here, that reconciliation of the authorities seemingly dealing with similar issues, but across different statutory regimes and different periods of political and legal history, is an elusive exercise.
As Professor Campbell notes (at p 34), in 1994 Sir William Wade suggested (see HWR Wade and CF Forsyth, Administrative Law (Clarendon, 7th ed, 1994) p 261) that provisions such as s 33(1) give “a highly misleading view of the law where the power is a power to decide questions affecting legal rights”.
The power in s 64(4), when first exercised to direct that a particular sum of money be paid to a particular recipient, cannot be said to affect an existing legal right of the recipient. At the time of Minister Macklin’s decision, the respondent had no existing entitlement to be paid any further sum out of the Account for its ongoing activities in relation to Machado Joseph Disease (MJD). It had, in the past, been paid sums out of the Account for that work. On this occasion, it had applied for a new grant of funds. To that extent, Sir William’s observation is not directly applicable. However, once the direction was made and communicated by the Minister, s 64(4) created a duty in the Commonwealth to pay the amount directed to the respondent. Whether a correlative right to payment was simultaneously created in the respondent, as occurred in Livingstone and Parkes by virtue of the relevant statute creating a debt, is a nice question.
However, that question does not need to be determined in this appeal, nor does the related question whether the respondent could have obtained orders in the nature of mandamus enforcing the Commonwealth’s duty to pay. That is because the respondent’s interests – its capacity to perform the charitable work with Aboriginal people suffering from MJD and their families in the Northern Territory – were certainly affected by the exercise of power under s 64(4). Here, there was no question of, to use the language of Gummow J in Kurtovic, “mistaken” apprehension of what the statute required for the lawful exercise of power as justifying reversal or recalling of the direction. Certainty and finality are no less important underlying values in the context of Pt VI of the Land Rights Act than they are in other statutory schemes. The giving of a direction under s 64(4) was an exercise of power of the kind, as I have attempted to show by reference to the legislative scheme as a whole and to its component parts – which assumes finality of decision-making so that the Account can be regularly administered, and the purposes of the Land Rights Act advanced.
In her article Professor Campbell states (at p 34):
Certainly such provisions will seldom provide authority to revoke or vary decisions made in exercise of statutory powers to determine individual rights and liabilities.
The footnote to this proposition states “Cf, Kurtovic”. In my respectful opinion the “Cf” is an appropriate comment. Consideration of the history and purpose of s 33(1) suggests its operation should be confined to an implication that, subject to the presence of a contrary intention, powers may be exercised and functions performed on more than one occasion, in relation to different individuals and circumstances. Whether the implication extends to the repeated exercise of the same power or performance of the same function in relation to the same person or subject matter will ultimately depend on the particular statutory context, and the nature of the particular power or function concerned.
For those reasons the Minister was not authorised by the terms of s 64(4) to revoke the direction that funds in the sum of $10 million be paid to the respondent.
I certify that the preceding one hundred and fifty-eight (158) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer. Associate:
Dated: 3 March 2017
REASONS FOR JUDGMENT
PERRY J:
I have had the benefit of reading the judgment of Mortimer J in draft. I agree with her Honour’s reasons and the orders that her Honour proposes.
I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Perry. Associate:
Dated: 3 March 2017
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