Pearce, Dennis --- "The public lawyer's best friend: Interpretation Acts and administrative law" [2022] PrecedentAULA 14; (2022) 169 Precedent 4

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INTERPRETATION ACTS AND ADMINISTRATIVE LAW

THE PUBLIC LAWYER’S BEST FRIEND

By Emeritus Professor Dennis Pearce

When I first joined the Commonwealth Public Service nearly 60 years ago, my boss told me that I should read the Acts Interpretation Act 1901 (Cth) (Cth Act) at least once a year. Being young and therefore knowing all that there was to know, I ignored the advice. This was foolish. Everyone who has any involvement in government decision-making, whether it be as a maker, a recipient or a challenger, needs to be conversant with the provisions of the Interpretation Act relevant to the jurisdiction in which they are working.^[1]

Interpretation Acts contain many matters germane to the content and mechanics of making decisions and their implementation, the knowledge of which makes understanding very much easier. And the absence of this knowledge is likely to lead to egregious errors.

The following are some of the more significant administrative law issues that arise in relation to a government decision:

• the identification of the designated decision-maker;

• the appointment or suspension of a person and removal of that person from office;

• whether a person acting in an office can make a decision;

• whether the making of a decision can be delegated;

• the measurement of periods of time within which a decision can be made and reviewed; and

• the manner of service of decisions on a person affected.

These issues are all significant to the validity of a decision and its effect on a citizen. They are all dealt with in the Interpretation Acts.^[2]

This article examines what might seem an esoteric issue relating to decision-making but is nevertheless of major importance both to decision-makers and to persons affected: whether a decision once made can be revisited. The Interpretation Acts of all jurisdictions contain detailed provisions on this issue.

CONTRARY INTENTION

It is important to remember that the provisions of all Interpretation Acts apply unless the contrary intention appears in the legislation to which they are to be applied. Identification of a contrary intention is not always easy. The most frequently cited comment is that of McHugh J in Pfeiffer v Stevens:^[3]

‘An intention contrary to the Acts Interpretation Act may appear not only from the express terms or necessary implication of a legislative provision but from the general character of the legislation itself.’

However, a contrary intention should not be too readily assumed. As Palmer J in Hunter Support Services Pty Ltd v The Children’s Guardian^[4] said:

‘[O]ne must not be too ready to find that a word or phrase defined in the Interpretation Act does not have the meaning ascribed to it in an Act or instrument to which the Interpretation Act applies ... the question is not “does the section or regulation still make sense if the word has a different meaning”, but is, rather, “does the context and purpose of the section or regulation clearly require a departure from the definition of the word in the Interpretation Act”. That is a fairly high hurdle to jump’.^[5]

REVISITING DECISIONS

The Interpretation Acts of all jurisdictions include significant provisions relating to the exercise of powers and the performance of functions that are vested in a person or authority by legislation.^[6] The provisions in the Acts of the various jurisdictions vary in their expression and scope, and it is essential to have regard to the provisions applying in the particular jurisdiction. However, provisions relating to revisiting decisions have fairly similar content and it is possible to speak about them in general terms.

At common law, the general rule was that, once a statutory power had been exercised, it could not be exercised again, nor could the decision be revisited. It was said that the person authorised to exercise the power was functus officio. This most inconvenient doctrine has been negated by the Interpretation Act of each jurisdiction.^[7]

The Cth Act exemplifies the relevant provision:

‘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.’^[8]

The common law limitation of a once-only action is thus negated. The crucial words are ‘from time to time as occasion requires’. So a decision may be revisited whenever the decision-maker determines that it should be.

It may be observed that the section says that a power may be exercised and a duty must be performed. The use of this language on its face indicates that the exercise of a power on a from-time-to-time basis is discretionary: there is no obligation on the decision-maker to return to the issue once a decision has been made to exercise a power. In contrast, where a duty is involved, the decision-maker is obliged to revisit a decision that has been made and reconsider whether the decision should be revised.

However, this gives a false impression. First, the courts have not been willing to adopt a rule of thumb approach to the use of discretionary, in contrast with obligatory, language. The approach is to consider the legislation in question and determine the intended purpose of the relevant provisions.^[9] This position has not been affected by the inclusion in Interpretation Acts of a provision spelling out that ‘may’ implies a discretion and ‘must’ or ‘shall’ an obligation.

Second, if circumstances have arisen whereby a power should be exercised in compliance with the legislation creating the power even though there has been a previous exercise of the power, a refusal by a decision-maker to act will not be able to be resisted solely on the ground that the Interpretation Act provision is couched in discretionary terms. Conversely, if a duty has been performed, the decision-maker cannot be required to consider exercising it afresh in the absence of circumstances that differ from those that prompted the first exercise of the duty.

It must be stressed that the Interpretation Acts are applicable only to decisions made under legislation and are not relevant to decisions under contracts, etc. Further, the provisions do not apply to decisions of courts or tribunals where the need for finality is paramount.

It is only necessary and indeed possible to invoke the relevant Interpretation Act sections if it is the same power, etc, that is being sought to be revisited. See, for example, Foxtel Management Pty Ltd v Australian Competition and Consumer Commission,^[10] where it was held that it was not necessary to consider the applicability of s33 of the Cth Act as either of two separate powers could be used to support a decision. A decision taken under one power was not being revisited if it was another power that was later being exercised even though their practical effect was the same.

An issue that is alluded to by French CJ in CPCF v Minister for Immigration and Border Protection^[11] is whether there is any limit on the number of times that a decision may be revisited in reliance upon the Cth Act provision. That case was concerned with the detention of persons outside Australia pursuant to the Migration Act 1958 (Cth). His Honour thought that the better view was that the person could be moved as occasion required. The other members of the Court did not consider the question. There is no limit inherent in the relevant Cth Act provisions. Any limit must flow from the power in question not being able to be exercised more than a certain number of times, or from the application of general administrative law principles that might deem repeated re-exercise to be an abuse of the power.

It is apparent from the cases referred to below that the application of the Cth Act sections is dependent on the court’s perception of the intended effect of the relevant provision in the legislation to which the sections are being applied. The following are circumstances and examples of cases where the courts have held that decisions may be revisited:

• The decision was based on facts found to be incorrect, as in Powerlift (Nissan) Pty Ltd v Minister for Small Business, Construction and Customs.^[12] Factual errors leading to the miscalculation of the export price of goods could be corrected by remaking the decision.

• The decision involved continuing circumstances requiring oversight, as in Orthotech Pty Ltd v Minister for Health.^[13] The inclusion of a prosthesis on a list of approved devices did not prevent the Minister from revisiting the list and omitting the prosthesis. To hold that a device once listed could not be removed would require the list to include superseded devices.

• The decision involved public interest and/or policy issues, as per Pfeiffer v Stevens, above.^[14] Section 23 of the Local Government Act 1993 (Qld) permitted the Minister to extend the operation of an interim local law. It was held that this power could be exercised by the Minister more than once. There was nothing in the Act to show a contrary intention. The power was exercisable as occasion required.

• The nature of the decision was such that it should have been possible to exercise it from time to time as circumstances required, as in Clark v Honourable Amanda Vanstone.^[15] The power to suspend a member of an advisory body was not exercisable on a once-only basis. The scheme of the section suggested that multiple exercises of the suspension power may be at least very desirable, if not necessary.

The following are some of the circumstances where it has been held that the Cth Act provisions cannot be invoked to revisit a decision (examples of relevant cases are included):

• Express provisions in the Act under which the decision is made displace the right to rely on the Cth Act, that is, a contrary intention is shown, as per Collins v Military Rehabilitation and Compensation Commission.^[16] Under the Administrative Appeals Tribunal Act 1975 (Cth) an order of the Tribunal entered by consent could only be altered in the case of obvious error. The Cth Act could not be called in aid to alter a costs order entered by consent where there was no obvious error.

• It is apparent that the power can only be exercised once, having regard to consequences flowing from the decision, as per Dunstan v R.^[17] Section 180 of the Legislation Act 2001 (ACT) does not permit a judge to reconsider a sentence once it has been imposed. Once a sentence is pronounced, the judge is functus officio.

• The decision generates rights or liabilities and persons have acted on them, as per RE Export Development Grants Board v EMI (Australia) Limited and Thorn EMI Electronics Pty Limited.^[18] A grant once made created a right to the money paid pursuant to the grant. It could not be revisited, reassessed and set off against a later grant.

• Review rights permitting the decision to be revisited are included in the legislation, as per Museums Board of Victoria v Carter.^[19] A power to make an emergency order could not be exercised on a from-time-to-time basis as there was provision made in the legislation to seek a substantive order after the emergency order had preserved the status quo. This substantive order was subject to review. The existence of a hierarchy of orders indicated a contrary intention to the emergency order being able to be remade.

• There are time limits provided for the decision-making, as per Scarfe v Federal Commissioner of Taxation (Cth).^[20] Section 33(1) of the Cth Act could not be invoked to alter an assessment to tax more than one year after the assessment had been made and communicated to the taxpayer. Under s20 of the Estate Duty Assessment Act 1914 (Cth), errors of any kind whatsoever could be corrected up to one year after the last payment on account of duty and, if necessary, adjusted, whether they operated in favour of the Crown or of the taxpayer. After that time, the conclusive effect of the assessment was not to be disturbed and s33 could not be invoked.

These circumstances and further cases relating to them are set out in detail in Interpretation Acts in Australia.^[21]

REVISITING INSTRUMENTS

A provision supplementing the from-time-to-time provision referred to above is found in all Interpretation Acts.^[22] The purpose of the provision is to negate any argument that an instrument, once made, cannot be revisited. It responds to the limitation that was imposed by the common law (to which the from-time-to-time provision is also directed) – that a power once exercised could not be exercised again. The provision makes it clear that the exercise of the power to make an instrument does not prevent the instrument from subsequently being amended or revoked.

However, the scope of the provisions adopted in the various jurisdictions varies widely. In some cases, it is applicable only to legislative instruments in the form of subordinate legislation. In others, it covers all government action, both legislative and administrative, taken by means of an ‘instrument’. The terms of the relevant provisions of the Interpretation Acts must be carefully examined before action is taken to amend or repeal an instrument or decision made in reliance upon the provision. It may be that the from-time-to-time provision can be called in aid in those jurisdictions whose revisiting power is more limited. However, the provisions do cover different grounds. The from-time-to-time provision contemplates action in the future and can only be invoked where there is a power or function conferred or duty imposed on a person. The process of revisiting to amend or repeal an instrument provision looks back with an eye to undoing action that has occurred.

It should be noted that the Interpretation Act provisions are available only to an authority empowered to take action under legislation; they do not apply to an instrument made by a citizen.

Where legislation empowers a decision-maker to call in aid an Interpretation Act revisiting provision to amend or repeal an instrument, that power passes to a delegate if the original power has been properly delegated.

To take advantage of the Interpretation Act provision there must be an ‘instrument’. This has provoked identity problems, but the position now seems to be settled. A distinction has been drawn between a document the making of which is the decision in question and without which there would be no decision, and a document that merely provides evidence of the decision. It is unusual for government decisions not to be recorded in writing. However, legislation may not require that to occur. If the decision is complete in itself, and does not require writing for its validity, the written record of the decision will not be an instrument such as to attract the operation of the provisions referred to above. It is only if the power in question is to make an instrument that itself brings about a certain result that the provision can be invoked. This distinction may be illustrated by reference to two cases.

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd^[23] concerned the revocation of a warehouse licence. The Court said that the power to grant the licence could be exercised without the need for a written document. While customarily the licensor would issue a written document evidencing the licence, this was not in itself required by the legislation authorising the grant of the licence. The licence could be revoked independently of its written version. Accordingly, the provisions of the Interpretation Acts could not be invoked as the action did not constitute the revocation of an instrument.

In contrast, X v Australian Crime Commission^[24] involved a power of the Commission ‘to determine in writing ... whether an investigation [was] a special investigation’. The decision here was the making of the written determination. This was an instrument, and the power of the relevant Interpretation Act to revoke an instrument could be called in aid.

Provisions in the Interpretation Acts of all jurisdictions provide for a person acting as a decision-maker to exercise the powers set out above. Provisions in all jurisdictions except SA and WA require the Interpretation Act powers to be exercised subject to the same constraints as those applied to the original exercise of the power. So if notice had to be given of an intention to make an instrument, revocation or amendment of it would require like notice.

CONCLUSION

These are but two instances of the way in which an Interpretation Act can affect a decision-making power. The Act can be a valuable aid to any lawyer. The good advice that I was given all those years ago is as relevant today.

Emeritus Professor Dennis Pearce AO FAAL is Emeritus Professor of Law at the ANU College of Law. He is the author of a number of books, including Statutory Interpretation in Australia, now in its 9th edition (LexisNexis Butterworths, 2019) and Interpretation Acts in Australia (LexisNexis Butterworths, 2018).

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^[1] Commonwealth: Acts Interpretation Act 1901 (Cth) (Cth Act). States and territories: Legislation Act 2001 (ACT) (ACT Act); Interpretation Act 1987 (NSW) (NSW Act); Interpretation Act 1978 (NT) (NT Act); Acts Interpretation Act 1954 (Qld) (Qld Act); Legislation Interpretation Act 2021 (SA) (SA Act) (replacing Acts Interpretation Act 1915); Acts Interpretation Act 1931 (Tas) (Tas Act); Interpretation of Legislation Act 1984 (Vic) (Vic Act); Interpretation Act 1984 (WA) (WA Act).

^[2] For more details on the issue of whether a decision once made can be revisited, see DC Pearce, Interpretation Acts in Australia, LexisNexis Butterworths, 2018.

^[3] [2001] HCA 71, [56].

^[4] [2005] NSWSC 616.

^[5] Ibid, [16]. A passage recently approved by Garling J in Genesian Theatre Company Inc v State of New South Wales [2021] NSWSC 1089, [23].

^[6] Cth Act, s33(1); ACT Act, s180; NSW Act, ss43, 48; NT Act, ss40–44A; Qld Act, ss23, 24AA; SA Act, s37; Tas Act, ss20, 22, 22A; Vic Act, ss40, 41A; WA Act, ss43, 48, 55.

^[7] Ibid.

^[8] Cth Act, above note 1, s33(1).

^[9] DC Pearce, ‘Chapter 11: Obligatory and Discretionary Provisions’, Statutory Interpretation in Australia, 9th ed, LexisNexis Butterworths, 2019, 387.

^[10] [2000] FCA 589, [178]–[182].

^[11] [2015] HCA 1, [94].

^[12] [1993] FCA 37.

^[13] [2013] FCA 230.

^[14] [2001] HCA 71.

^[15] [2004] FCA 1105, [60].

^[16] [2005] FCA 1862, [31].

^[17] [2003] ACTCA 22.

^[18] [1985] FCA 284, [40].

^[19] [2005] FCA 645, [25].

^[20] (1920) 28 CLR 271, 275–6; [1920] HCA 61.

^[21] Pearce, above note 2, ch 8.

^[22] Cth Act, s33(3); ACT Act, s46; NSW Act, s43; NT Act, s43; Qld Act, s24AA; SA Act, s40; Tas Act, ss22, 22A; Vic Act, s41A; WA Act, s43(4). See above note 1.

^[23] [1979] FCA 21.

^[24] [2004] FCA 1475.