Legal Briefing No. 67

Number 67

15 August 2003

Don't Think Twice –
Can Administrative Decision Makers Change Their Mind?

Can
administrative decision makers vary or revoke a decision
they have made? 1 This is a question of some significance
to many administrators. It is a question that has traditionally
received little judicial or academic attention, but has
recently been the subject of a High Court decision, in
Minister for Immigration and Multicultural Affairs
v Bhardwaj, 2 a number of Federal Court decisions, 3 and
a range of
broader discussion. 4 As many of these cases and articles
recognise, it is a question which appears to have a practical
focus, but in fact leads to some of the most basic issues
in public law.

Decision makers may wish to vary or revoke
a decision for a range of reasons, and in a range of circumstances.
This
Briefing looks at the following questions, which a Commonwealth
decision maker needs to ask in order to decide whether
they can vary or revoke their decision.

  • Has a decision
    been made?
  • Can the decision be treated as invalid, and
    made again? This is the issue which was recently considered
    by the
    High Court in Bhardwaj.
  • Is there an express statutory
    power to vary or revoke, and if so how can that power
    be exercised?
  • Is there a general power in ss.33(1) and 33(3)
    of the Acts Interpretation Act 1901 (Cth) to vary or
    revoke?
  • Is there an implied power to vary or revoke?

GENERAL
APPROACH

Before considering these issues, it is necessary
to note one important point. Whether an administrative
decision
maker can vary or revoke their decision is sometimes
described as determining whether the decision maker is functus officio (that is, has discharged their duty). However there is
no current general principle or presumption that once
an administrative decision maker has made their decision they
are functus officio in this sense. Rather it is necessary
in each case to interpret the extent of the statutory
power conferred on the decision maker, and determine whether
this includes a power to vary or revoke.

Gleeson CJ in
Bhardwaj formulated the basic legal issue in a broad manner,
which focused on statutory power:
5

The question is whether the statute pursuant to which
the decision-maker was acting manifests an intention
to permit
or prohibit reconsideration in the circumstances that
have arisen.

This statement confirms the weight of Federal
Court thinking, in a range of contexts. 6 It is consistent
with the presumptions
in ss.33(1) and 33(3) of the Acts Interpretation Act.

HAS
A DECISION BEEN MADE?

When a decision is provisional, or
better characterised as conduct leading to a decision,
it has not yet been
perfected. In such a case, it is still open to the decision
maker
to reconsider the issue, whether or not a power to revoke
or vary an actual decision exists. 7 This is because
in such circumstances the decision is unperfected and
not
yet operational.

What is required to perfect a decision
will depend on the terms of the relevant statute. A decision
will generally
be perfected where it is communicated to the affected
person,
either orally or in writing, and in a manner that indicates
that the decision is not merely provisional. 8 Until
then the decision maker will be able to change their
mind.

CAN THE DECISION BE TREATED AS INVALID?

What if the decision
is invalid? Can the decision maker just ignore it and make
it again? Of course where there
is judicial review, or some form of administrative review,
the decision maker is subject to the jurisdiction of
the review court or other body; if the court or other
body
sets aside the decision and orders the decision maker
to make it again, the decision maker must do so. The
difficult
legal issue is whether a decision maker can simply treat
a decision as invalid and make it again without direction
from a review court or other body. The recent decision
of the High Court in Bhardwaj is directly relevant to
this issue.

In Bhardwaj Kirby J noted that the debate
about invalidity of administrative decisions 'presents
one of the most vexing puzzles of public law. Principle
seems to pull
one way. Practicalities seem to pull in the opposite
direction'.
9 This is because there are two conflicting views of
invalidity.

The absolute or objective invalidity approach
is that if a decision maker acts outside their jurisdiction,
the decision
is invalid from that time and for all purposes. Importantly
there is no need to have a court determine this issue.
10

The alternative relative or subjective invalidity
approach is that there is no such thing as absolute invalidity;
decisions are only invalid if a court determines that
they are invalid. 11 The relative view of invalidity
appears
more suited to a system of administrative law where judicial
remedies are discretionary, 12 and the reforms of the
Administrative Decisions (Judicial Review) Act 1977.
13

But while most judges and commentators begin with one
view, they are often forced to move towards a middle
position.
There is a need to balance the insights of one position,
with those of the other; to balance the presumption of
validity with the underlying legality of the decision;
to accommodate the fact that all decisions have effect
for some purposes, but that some decisions are blatantly
beyond power.

This debate is relevant to whether a decision
maker who has made a legal error can simply ignore the
decision
and make it again, or whether they need to await a judicial
determination of invalidity before they can act. The
decision
in Bhardwaj dealt with this issue.

BHARDWAJ

Mr Rajiv Bhardwaj's student visa was cancelled
by a delegate of the Minister for Immigration and Multicultural
Affairs under the Migration Act 1958. He applied for
review
of that decision by the Immigration Review Tribunal.
The Tribunal invited him to attend a hearing on 15 September
1998. Late on 14 September 1998 the Tribunal received
a
letter from Mr Bhardwaj's agent requesting an adjournment
of the hearing on the ground that he was ill. That letter
did not come to the attention of the member of the Tribunal
to whom the review had been assigned, and on 16 September
1998 the Tribunal affirmed the cancellation decision
(the September decision).

The Tribunal communicated its
decision to Mr Bhardwaj and his agent the next day. His
agent drew the attention
of
the Tribunal to the letter requesting an adjournment,
after which a new hearing was arranged, at which Mr Bhardwaj
presented evidence. On 22 October 1998 the Tribunal revoked
the cancellation decision and published a new decision
(the October decision).

The Minister applied to have the
October decision set aside by the Federal Court under Part
8 of the Migration
Act
on the basis that the Tribunal had no power to review
the cancellation decision after making the September
decision.
That application was dismissed by a single judge 14 and
by a majority of the Full Court of the Federal Court
on appeal. 15 The matter came before the High Court after
the Minister was granted special leave to appeal.

The
key issue was whether the Tribunal was able to reconsider
Mr Bhardwaj's review application and make the October
decision, in particular in light of the statutory scheme
in the Migration Act.

Majority reasoning

By a 6–1 majority (Kirby J dissenting),
the High Court dismissed the Minister's appeal. 16 The majority judges all held that the Migration Act permitted
the action
taken by the Tribunal in making the October decision.
All the majority judges held that the Tribunal had failed
to
discharge its statutory function in making the September
decision, such that the Tribunal's review function
remained unperformed. The Court held that nothing in
the Migration Act or the principles of administrative
law required
that a purported decision involving such an error should
be treated as valid unless and until set aside by a court.
Therefore it was open to the Tribunal to reconsider the
matter and make the October decision.

The finding of
the majority of the High Court apparently places it well
within the absolute invalidity school.
The Court held that it was open to the Tribunal to treat
the
September decision as invalid and to remake it properly.
Gaudron and Gummow JJ stated at [51]:

There is, in our
view, no reason in principle why the general law should
treat administrative decisions involving
jurisdictional
error as binding or having legal effect unless and until
set aside. A decision that involves jurisdictional error
is a decision that lacks legal foundation and is properly
regarded, in law, as no decision at all. Further, there
is a certain illogicality in the notion that, although
a decision involves jurisdictional error, the law requires
that, until the decision is set aside, the rights of
the individual to whom the decision relates are or, perhaps,
are deemed to be other than as recognised by the law
that
will be applied if and when the decision is challenged.

The difficulty in the decision lies in establishing
the preconditions for such action by decision makers.
On
one view the Court was simply responding to the blatant
error
of the Tribunal in failing to provide procedural fairness
in relation to its September decision. However, the general
utility of the case rests on identifying broader principles,
and in particular the necessary preconditions for the
ability to ignore an administrative decision. An analysis
of these
preconditions goes some way to whittling away the apparent
strong support for the absolute invalidity position.

Nature
of the error

The Tribunal's error was characterised
differently by the members of the Court. Gleeson CJ saw
it not just
as a denial of procedural fairness, that is, a jurisdictional
error, but as a failure to conduct a review of the decision.
17 Callinan J held that the September decision was bad
in a 'jurisdictional sense'; it was something
more than a breach of the rules of natural justice, it
was a failure to exercise a jurisdiction which the Tribunal
was bound to exercise. 18

The remaining four majority
Justices characterised the Tribunal's error as
a jurisdictional error, or at least regarded a jurisdictional
error as sufficient to
enable a decision maker to ignore the decision. 19

This
approach builds on the distinction between jurisdictional
error, which involves an administrative body acting in
excess of its powers, and non-jurisdictional error, where
the body has acted within power but has made an error
of law. This is a distinction which has been articulated
and
emphasised by the High Court, most notably in Craig
v South Australia. 20 An administrative decision maker
will make
a jurisdictional error where they act in bad faith or
beyond power, fail to accord natural justice, misconstrue
the
statute or a jurisdictional fact, fail to take into account
a relevant matter or rely on an extraneous consideration.
21 This encompasses most legal errors made by administrative
decision makers, and therefore leaves few non-jurisdictional
errors of law. Significantly, the constitutional writs
in s.75(v) of the Constitution are available to remedy
jurisdictional errors by Commonwealth decision makers.

The
result, in this context, of a broad view of jurisdictional
error is to open the door for decision makers to ignore
their decisions and make them again on the basis of a
range of legal errors.

Privative clause

Whether there is jurisdictional error
will depend on the nature of the decision made, and in
particular whether
it is subject to any privative clause. On one view, a
privative
clause may expand the jurisdiction of the decision maker,
and therefore contract the bases of jurisdictional error.
In contracting the bases for jurisdictional error, a
privative clause may also contract the bases for ignoring
a decision
as invalid. However, the High Court has recently rejected
such a view, at least in part and in relation to the
privative clause in s.474 of the Migration Act. 22 Nonetheless
it
must be the case that the existence of jurisdictional
error in a particular circumstance will depend on the
form of
the legislation under which the decision has been made.

Judicial
review

Availability of judicial review

Further, the majority in
Bhardwaj seems to suggest that the fact that judicial review
of the September decision
was available in the High Court was a relevant factor
in allowing the Tribunal to treat that decision as invalid.
The existence, for example, of a limitation period which
has expired, would therefore be relevant to whether judicial
review was available, and may be relevant to whether
a
decision can be ignored as invalid. 23

Availability of
successful judicial review

Further, some comments suggest
that what is required is not only that judicial review
for the error be available,
but also an assessment that that review will be successful
and will result in the decision being held invalid. Hayne
J noted that the matter proceeded on an assumption that 'if
application had been made either to the Federal Court…or
to this Court for a writ of prohibition…[Mr Bhardwaj]
would have been entitled to have the September decision
set aside, or further proceedings on it prohibited'.
24

On this reasoning, factors which would lead a court
to exercise its discretion not to grant a remedy will
also
be relevant in deciding whether an administrator can
treat a decision as invalid and ignore it. 25

If this
is so, whilst some members of the Court have affirmed the
absolute theory of invalidity, the Court
has in effect
adopted a middle position. The Court has affirmed a decision
maker's right to treat a decision infected by jurisdictional
error as invalid and ignore it, but in doing so has suggested
that the availability of successful judicial review is
a precondition for the decision maker doing so. In practice
such a precondition will require a court decision, or
a blatant error, or perhaps the agreement of the parties.

Agreement of the parties

This is one important factor which
the majority Justices do not directly comment on. The Tribunal,
at least impliedly,
thought that the September decision was invalid. Mr Bhardwaj
also, at least impliedly, thought the decision was invalid.
There is a line of thought that where the relevant parties
agree that a decision is invalid they can treat it as
such. 26 This thinking was expounded in particular in
the decision
of the Full Court of the Federal Court in Comptroller-General
of Customs v Kawasaki Motors Pty Ltd. 27 It is a line
of thought which resonates with the practical issues
which
arise in relation to variation or revocation of administrative
decisions.

On one view the decision in Bhardwaj may therefore
stand for the unarticulated proposition that if the parties
to a decision agree that a court would set aside the
decision
as invalid, then they can treat it as invalid and ignore
it.

Functus officio and presumption of validity

The Court generally
rejected any blanket principle that once a power to make
an administrative decision had been
purportedly exercised, it was necessarily spent; 28 that
is, it rejected any general principle of functus officio for administrative decisions analogous to that for courts.
The majority judgments relied to a significant extent
in this area on the decision of the Canadian Supreme
Court
in Chandler v Alberta Association of Architects. 29 The
judgment in Bhardwaj also suggests that any presumption
of validity in relation to administrative decisions is
much weaker than in relation to judicial decisions. 30

Effect of the Migration Act

The argument of the Minister
was based in particular on the restricted regime for judicial
review under the
Migration
Act. There was no provision of the Act which expressly
purported to give any legal effect to decisions of the
Tribunal that involved jurisdictional error. But it was
argued that the provisions which limited the grounds
upon which the Federal Court may set aside a Tribunal
decision,
31 which required that applications for judicial review
be made within 28 days, 32 and which expressly provided
that the Federal Court had no jurisdiction with respect
to judicially reviewable decisions other than that conferred
by Part 8, 33 had that effect. The argument of the Minister
was that as the Federal Court could not have held the
September decision invalid, because of these provisions,
the Tribunal
could not do so.

Gaudron and Gummow JJ held that in effect
these restrictions on the Federal Court did not require
that Court to find
that the September decision, infected by a jurisdictional
error, was valid, and stated at [59]:

As the result of
the decision in Abebe v Commonwealth, the Parliament may
limit the body of law to which the
Federal Court may have regard when reviewing a decision
under Pt
8 of the Act. However, it does not follow that the Parliament
may require it to act on the basis that the law to be
applied is contrary to that which would be applied in
this Court
if an application were made for prohibition or mandamus
under s 75(v) of the Constitution.

The restrictive provisions
in the Migration Act did not have the effect of requiring
the Federal Court to treat
an invalid decision as valid. This outcome undercut the
argument that the Tribunal itself was so limited.

The
judgments suggest that the Migration Act could have removed
the ability of the Tribunal to remake its invalid
decision, and that other legislation could also do this.
34 Gaudron and Gummow JJ though suggest that a legislative
provision should not be construed so as to give an administrative
decision greater effect than it would otherwise have
unless that implication is strictly necessary. 35

A prudent
course

Notwithstanding the legal position, Hayne J made
some comments about the prudence of administrators acting
without a judicial
determination of invalidity at [150]:

The question that
now arises is not one concerning good administrative
practice. It is not the province of the
courts to say whether particular administrative practices
are prudent or efficient and yet there would be little
dispute that characteristics of prudence and efficiency
are relevant to good administrative practice. It
is, therefore, not to the point to ask whether the Tribunal
was wise to
make its October decision without first having the
comfort
and certainty of a court order holding the September
decision to have been not a lawful performance of
the Tribunal's
duties any more than it is to the point to ask about
the efficiency of adopting the course that was followed
in
this matter.

It is clearly the case that it would be
prudent for decision makers to await a court decision
about invalidity, especially
where there is doubt.

IS THERE AN EXPRESS STATUTORY POWER
TO VARY OR REVOKE?

In Bhardwaj, Gaudron and Gummow JJ (with
whom McHugh J generally agreed), and Hayne J, all decided
that there
was no need to rely upon s.33(1) of the Acts Interpretation
Act to support the Tribunal's action because, prior
to the October decision, there had been no relevant exercise
of power by the Tribunal. But where there has been an
exercise of power, it is necessary to go on and address
the question
of whether a decision maker can vary or revoke a decision.

In many statutes, decision makers are given an express
power to vary or revoke a decision. 36 Such powers
can be exercisable on the motion of the decision maker,
on
that of the person affected by the decision, or by
both parties. 37

A decision taken on the basis of such
provisions will, like any administrative decision made
pursuant to an
enactment, generally be subject to judicial review.
General principles
of administrative law, such as the need to accord
procedural fairness, to exercise a discretion for a proper
purpose,
and to take into account all and only relevant considerations,
will apply.

Where an express statutory power is given
to vary or revoke an administrative decision of a particular
kind
and on
certain grounds, it is likely to be interpreted
as excluding by implication the power to vary or revoke
on other grounds,
and also to exclude variation or revocation of
other
related decisions taken pursuant to the statute.
38

IS THERE A GENERAL POWER?

ACTS INTERPRETATION ACT SECTION 33(3)

Even without an express, specific power to vary or revoke,
such a power may exist by operation of general legislation.
In the Commonwealth sphere, the most relevant general provision
is s.33(3) of the Acts Interpretation Act. This section
provides:

Where an Act confers a power to make, grant or
issue any instrument (including rules, regulations or by-laws)
the
power shall, unless the contrary intention appears, 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.

Whether
s.33(3) extends to giving the makers of administrative
instruments the power to revoke or vary a decision has
been the subject of some controversy.

In Australian Capital
Equity Pty Ltd v Beale, 39 Lee J of the Federal Court held
that s.33(3) is limited to powers
concerning instruments of a 'legislative character' and
did not apply to instruments of an 'administrative
character'. Lee J's conclusion was based on
the view that the sole and obvious purpose of the Acts
Interpretation Act is to deal with legislative instruments,
and that having regard to the provision's history
it is possible to conclude that the parenthetic expression '(including
rules, regulations or by-laws)' was intended to be
an exhaustive provision. This view has been accepted in
Director of Public Prosecutions Reference No.2 of 1996,
40Minister for Immigration and Multicultural
Affairs v Sharma, 41Dutton v Republic
of South Africa, 42 and Schanka
v Employment National (Administration) Pty Ltd. 43

However,
the reasoning of Lee J in Beale 44 has a number of unsatisfactory
elements. In our view the conclusion
is not supported by a full consideration of the relevant
issues of statutory interpretation. It was always inconsistent
with the decision of Brennan J, sitting as the Administrative
Appeals Tribunal, in Re Brian Lawlor Automotive Pty
Ltd v The Collector of Customs, New South Wales 45 and the
decision of the Full Court of the Federal Court in Barton
v Croner Trading Pty Ltd. 46 It has most recently been
seriously questioned, and not followed, as a result of
careful analysis by Emmett J in Heslehurst v New Zealand 47 and by the Court of Appeal of the Supreme Court of Victoria
in R v Ng. 48 It is not necessary in light of these recent
decisions to canvass in detail all the factors in support
of the view that s.33(3) applies to administrative instruments.
However, it is noted that the phrase 'including rules
regulations and by-laws' (emphasis added) clearly
suggests that the power is not limited to rules, regulations
and by-laws, a view supported by the legislative history.
The term 'instrument' itself, and the phrase 'make,
grant or issue', suggests that the section extends
beyond legislative instruments. And whilst it is true that
the Acts Interpretation Act is concerned with interpreting
Commonwealth legislation, that legislation regularly gives
powers to make administrative as well as legislative instruments.

The
better view is that s.33(3) provides a general statutory
presumption in favour of a power to revoke or vary administrative
instruments.

ACTS INTERPRETATION ACT SECTION 33(1)

Section 33(1) provides
that:

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.

A restrictive view of s.33(1) is that its sole
role is to clarify that a general power to do something,
such as
grant a social security benefit or citizenship, can be
exercised each time an application is made, rather than
only once. 49

However, a broader view has been taken of
s.33(1) in Minister for Immigration, Local Government and
Ethnic Affairs v
Kurtovic 50 and by the Federal Court in Bhardwaj. 51 In
Kurtovic it was held that the revocation of a criminal
deportation order, made pursuant to a recommendation of
the Administrative Appeals Tribunal, did not prevent the
Minister from making a second deportation order in respect
of the same criminal offence. Gummow J held that s.33(1)
gave administrative decision makers the power to reconsider,
revoke or remake a decision, unless the statute, upon a
proper construction, indicated that the power was not to
be exercised from time to time, but was spent by its first
exercise. 52 In the recent case of Pfeiffer v Stevens 53 a majority of the High Court used the Queensland equivalent
of s.33(1) to allow a Minister to exercise a power to extend
the operation of a law more than once.

The primary practical
issue in relation to both s.33(3) and s.33(1) of the Acts
Interpretation Act is whether there
is a contrary intention in the relevant statute. We consider
this issue further below.

IS THERE AN IMPLIED POWER?

It is also necessary to consider
whether, apart from s.33(3) and s.33(1) of the Acts Interpretation
Act, a power to
vary or revoke may be found by implication. Some of the
recent judicial considerations have looked at the issue
of whether there is an implied power without the lens provided
by the Acts Interpretation Act provisions. 54 It seems
more appropriate to begin with these general statutory
powers. But the question of whether there is contrary intention
for the purposes of these powers, and the question of whether
there is an implied power, give rise to much the same issues.

In deciding whether there is an implied power to vary
or revoke, and in determining whether there is a contrary
intention for the purposes of s.33 of the Acts Interpretation
Act, the Courts have looked at common factors. In doing
so, they have been concerned to balance the conflicting
policy considerations identified by French J in Sloane
v Minister for Immigration, Local Government and Ethnic
Affairs: 55

The implication into an express grant of statutory
power of a power to reconsider its exercise would be
capable, if not subject to limitation, of generating
endless requests
for reconsideration on new material or changed circumstances. …

Against
the difficulties that may arise from the implication
of a power to reconsider a decision there is the convenience
and flexibility of a process by which a primary decision-maker
may be persuaded on appropriate and cogent material that
a decision taken ought to be re-opened without the necessity
of invoking the full panoply of judicial or express statutory
review procedures.

RELEVANT FACTORS FOR A CONTRARY INTENTION AND IMPLIED
POWER

Slips

One situation in which the courts have uncontroversially
found a power to vary is where a decision maker wishes
to correct a clerical error that does not change the form
or substance of their decision.

Clear statutory intention

Some statutes provide a clear
indication that the power granted, once exercised, is spent.
In some few cases, the
legislation makes clear that there is no power to vary
or revoke. Section 26 of the Administrative Appeals
Tribunal Act 1975 is such a provision.

Where a statute provides that
certain decisions are 'final' or 'final
and conclusive', this evidences an intention contrary
to the existence of a power to revoke or vary. 56

Nature
of the function

An important factor is the nature of the
function exercised, which may either indicate that the
power is continuing
or that it is to be used only once. 57 The effect on third
parties will be an important aspect of the nature of the
power, and the effect of variation or revocation on them
an important aspect of this factor. For example, where
decisions involve granting a licence, funds or employment
to one individual over others, the fact that allowing the
decision maker to reconsider the decision at the request
of an unsuccessful party could have a negative impact on
the innocent successful party is an indication that the
power, once exercised, should not be varied or revoked.

Consequences

A related factor is the consequence of a power
of amendment or revocation, or lack of power, in light
of the statutory
scheme. 58

Procedure

Another factor is the procedure for, and manner
of, making the decision. In Bhardwaj, Kirby J held, in
his dissenting
judgment, that on its proper construction the Migration
Act procedures evinced a contrary intention for the purposes
of s.33(1) of the Acts Interpretation Act. 59 The fact
that a majority of the High Court found in Bhardwaj that
the Tribunal was able to ignore its September decision
and make its October decision does not affect the relevance
of these comments in relation to whether there is a general
power to vary or revoke.

Merits review

Another factor, which the courts have recognised
as indicating a statutory intention contrary to the existence
of a power
to vary or revoke, is the availability of merits review,
be this internal or through an administrative appeals tribunal.
60 Generally, a clear and well structured scheme of review
tells against any general power of reconsideration.

Opportunity
to reapply

A related factor is the existence of an opportunity
to make a further primary application where some benefit
has
been denied. 61 Generally, an ability to make a new application
tells against any general power of reconsideration.

Nature
of any error

The nature of any error made by the decision
maker, a possible further factor, is likely to be less
relevant after the
High Court's decision in Bhardwaj, and the finding
there that a jurisdictional error generally results in
an invalid decision, which can be ignored and made again
without the need for a power to revoke.

Time

Another factor is that any variation or revocation
needs to be timely. There is unlikely to be found an implied
power to vary or revoke at any time after a decision has
been made. There may be other similar factual considerations
which in particular circumstances tell against a power.

Agreement

A further issue in this context is whether the
fact that the decision maker and the party or parties affected
agree
to the variation or revocation is relevant. As a matter
of practicality, this will clearly be relevant, since if
there is agreement, there is unlikely to be a legal challenge.
Where the decision maker wishes to make a new decision
more favourable to the applicant, this will often be with
their explicit or implicit agreement, and again a legal
challenge is unlikely. However, it is sometimes difficult
to find a principled basis for this approach.

We have noted
that in Bhardwaj there was agreement between Mr Bhardwaj
and the Tribunal as to the course to be taken,
and impliedly that the September decision was invalid and
therefore able to be ignored. The Court confirmed the correctness
of their 'agreed' position, though it did not
explicitly draw any relevance from their agreement.

In
Comptroller-General of Customs v Kawasaki Motors Pty
Ltd,
62 a case involving the decision of the Comptroller-General
to revoke a previous revocation of a Commercial Tariff
Concession order with the consent of the affected party,
Hill and Heerey JJ held that:

It would in our opinion be
strange if an administrative order remained valid until
set aside by an order of a court
even though the decision-maker did not seek to uphold the
order. Courts have long recognised the rule of policy that
there is a public interest in the avoidance of litigation
and the termination of litigation by agreement when it
has commenced. The argument that disputed orders could
not be treated, by agreement of all concerned, as void
would directly conflict with that rule. Parties would be
forced into pointless and wasteful litigation.

There are
significant further questions as to whether an agreement
that a decision is tainted by non-jurisdictional
error, or an agreement to vary or revoke a decision without
any error, is enough to support a power to vary or revoke.

Conclusion

We have looked in this Briefing at the five
questions which Commonwealth administrative decision makers
should ask
if they wish to revoke or vary a decision.

  • First, is the decision perfected? If it is not the
    decision can be reconsidered; no power to vary or revoke
    will be
    necessary.
  • Second, is the decision
    invalid and able to be ignored? On the basis of Bhardwaj,
    in order for a decision maker
    to treat a decision as invalid requires at least a
    jurisdictional error. It also probably requires that
    judicial review is
    available, and that it is clear that a court would
    hold the decision invalid in judicial review proceedings.
    A
    prudent course in cases of doubt would be to await
    a judicial determination. Agreement by the person affected
    to treating
    the decision as invalid limits the legal risk in doing
    so.
  • Third, if there is a decision
    which cannot be ignored, is there an express statutory
    power to vary or revoke?
    Any exercise of such a power will need to be in accordance
    with general administrative law principles.
  • Fourth, do the general powers in ss.33(1) or 33(3)
    of the Acts Interpretation Act allow for variation or
    revocation?
    The better view is that s.33(3) applies to administrative
    as well as legislative instruments. But both provisions
    are subject to a contrary intention in the relevant legislation.
  • Fifth, is there an implied power to vary or revoke?
    We have noted a range of relevant factors in determining
    whether
    there is a contrary intention for the purposes of ss.33(1)
    or (3) of the Acts Interpretation Act, or whether a
    power to vary or revoke can otherwise be implied.

NOTES

1 This briefing is based on research conducted by
Robyn Briese while an intern (from the Faculty of Law at
the
Australian National University) with the Australian Government
Solicitor, under the supervision of
Robert Orr QC, Deputy General Counsel.

2 [2002] HCA 11
(14 March 2002); (2002) 209 CLR 597; 187 ALR 117. The decision
in Pfeiffer v Stevens [2001] HCA
71 (13 December 2001); (2001) 209 CLR 57; 185 ALR 183 is
also indirectly relevant to this issue.

3Minister for Immigration,
Local Government and Ethnic Affairs v Kurtovic (1990) 21
FCR 193, 92 ALR 93; Sloane
v Minister for Immigration, Local Government and Ethnic
Affairs (1992) 37 FCR 429; Jayasinghe v Minister
for Immigration and Ethnic Affairs (1997) 76 FCR 301, 145 ALR 532; Leung
v Minister for Immigration and Multicultural Affairs (1997)
79 FCR 400, 150 ALR 76; Semunigus v Minister
for Immigration and Multicultural Affairs (2000) 96 FCR
533; Heslehurst v New Zealand (2002) 117 FCR 104, 189 ALR
99

4 E Campbell, 'Revocation and Variation of Administrative
Decisions' (1996) 22(1) Mon LR 30; E Campbell 'Effect
of Administrative Decisions Procured by Fraud or Misrepresentation' (1998)
5 AJ Admin L 240; R Beech-Jones 'Reopening Tribunal
Decisions: Recent Developments' (2001) 29 AIAL
Forum 19; M Allars 'Perfected Judgments and Inherently
Angelical Administrative Decisions: The Powers of Courts
and Administrators to Re-open or Reconsider Their Decisions' (2001)
30 AIAL Forum 1; R Orr and R Briese 'Don't
Think Twice; Can Administrative Decision Makers Change
Their Minds?' (2002) 35 AIAL Forum 11. See also E
H Shopler, 'Power of administrative agencies to reopen
and reconsider final decisions as affected by lack of specific
statutory authority' 73 American Law Reports Annotated
2d 939; R A MacDonald, 'Reopenings, Rehearings and
Reconsiderations in Administrative Law: Re Lornex Mining
Corporation and Bukwa' (1979) 17(1) Osgoode
Hall LJ 207.

5 [2002] HCA 11 at [8]

6Minister for Immigration, Local
Government and Ethnic Affairs v Kurtovic (1990) 92 ALR
93, Gummow J at 112; Sloane
v Minister for Immigration, Local Government and Ethnic
Affairs (1992) 37 FCR 429, French J at 443; Jayasinghe
v Minister for Immigration and Ethnic Affairs (1997) 145
ALR 532, Goldberg J at 542.

7 E Campbell, 'Revocation
and Variation of Administrative Decisions' (1996)
22(1) Mon LR 30 at 38–40

8Semunigus v Minister for
Immigration and Multicultural Affairs [1999] FCA 422; Semunigus
v Minister for Immigration
and Multicultural Affairs (2000) 96 FCR 533

9 [2002] HCA
11 at [101]

10Posner v Collector for Interstate Destitute
Persons (Vict.) (1946) 74 CLR 461; Ousley v The
Queen (1997)
192
CLR 69, McHugh J at 100; Leung v Minister for Immigration
and Multicultural Affairs (1997) 150 ALR 76 Finkelstein
J at 88. It is in the area of fraud and misrepresentation
that courts appear most willing to declare that a decision
so procured can simply be treated as invalid and ignored.

11Forbes v New South
Wales Trotting Club Ltd (1979) 143 CLR
242, Aickin J at 277; see also Smith v East Elloe Rural
District Council [1956] AC 736; F Hoffman-La Roche & Co
AG v Secretary of State for Trade and Industry [1975] AC
295; Wattmaster Alco Pty Ltd v Button (1987) 70 ALR 330;
R v Balfour; ex parte Parkes Rural Distributions Pty
Ltd (1987) 17 FCR 26, Wilcox J at 33; Ousley
v The Queen (1997)
192 CLR 69, Gummow J at 130–131.

12Administrative
Decisions (Judicial Review) Act 1977 s.16; HWR Wade, 'Unlawful
Administrative Action: Void or Voidable?' (1967)
83 LQR 526 and (1968) 84 LQR 95;
M Taggart 'Rival Theories of Invalidity in Administrative
Law: Some Practical and Theoretical Consequences' in
M Taggart (ed) Judicial Review of Administrative Action
in the 1980s, 1987 at page 70; A Robertson 'Administrative
Law Remedies: Some discretionary considerations' (2002)
22(2) Australian Bar Review 119

13 Section 16 sets out the
orders which a court may make. This includes:

(a) an order
quashing or setting aside the decision, or a part of the
decision, with effect from the date of the
order or from such earlier or later date as
the court specifies; … .

When a court sets aside a decision, the default
position is that it is from the time of the order of the court, not from
the time the decision was made.
This suggests relative invalidity, not absolute invalidity. Further, the
section provides for a range of non-invalidating remedies.
In addition, s.10 provides
the court with a discretion to refuse an application if adequate provision
is made for review by another court, tribunal authority or person.

14Minister
for Immigration and Multicultural Affairs v Bhardwaj [1999]
FCA 1806 (22 December 1999, Madgwick J), on the basis that
the September decision
had not been lawful and was therefore open to collateral challenge in the
Federal Court.

15Minister for Immigration and Multicultural
Affairs v Bhardwaj (2000) 99 FCR 251 (Beaumont and Carr JJ, Lehane
J dissenting),
on the basis that the
Tribunal had the power to make the October decision because of s.33(1) of
the Acts Interpretation Act.

16 [2002] HCA 11 (14 March 2002); (2002) 209
CLR 597; 187 ALR 117

17 [2002] HCA 11 at [14]

18 [2002] HCA 11 at [162]–[165]

19 [2002] HCA 11
Gaudron and Gummow JJ at [44]; Hayne J at [149]. McHugh
J generally agreed with Gaudron and Gummow
JJ.

20 (1995) 184 CLR 163

21Craig v South Australia (1995)
184 CLR 163 at 177

22Plaintiff S157 of 2002 v The Commonwealth [2003] HCA 2, 4 February 2003; (2003) 192 ALR 24

23 There
is a question as to whether any requirement for judicial
review to be available could be met by the availability
of collateral challenge.

24 [2002] HCA 11 at [147]; see
also [152], [155] and [157]. Gleeson CJ at [13] specifically
noted that the High Court
had recently decided in Re Refugee
Review
Tribunal; ex parte Aala (2000) 204 CLR 82 that failure to accord procedural
fairness resulted in an excess of jurisdiction sufficient to attract prohibition,
but that the remedy was discretionary. Whilst not pursuing this thought,
the comment indicates a concern that discretionary considerations may be
a brake
on moving too far towards an absolute view of invalidity. The illogicality
referred to by Gaudron and Gummow JJ at [51], quoted above, arises in the
situation 'until
the decision is set aside', suggesting that what is required before
a decision maker can treat a decision as invalid is not only the availability
of judicial review, but an assessment that a court will set aside the decision.

25 See also the comments at [2002] HCA 11 at [13] by Gleeson
CJ in relation to time, and [2002] HCA 11 at [143] by Hayne
J in relation to the effect
on third parties, both factors traditionally relevant to the exercise of
judicial
discretion to grant a remedy.

26 M Akehurst, 'Revocation of Administrative
Decisions' (1982)
PL 613 at 616–617; E Campbell, 'Revocation and Variation
of Administrative Decisions' (1996) 22(1) Mon LR 30 at 53.

27 (1991)
32 FCR 219 at 229–230, 103 ALR 661 at 671

28 [2002] HCA 11, Gleeson
CJ at [5]

29 [1989] 2 SCR 848

30 [2002] HCA 11, Hayne J at [151]

31 Section 476

32 Section 478(1)

33 Section 485(1) and (3)

34 [2002] HCA 11, Gleeson
CJ at [8]; Gaudron and Gummow JJ at [44], [54]

35 [2002]
HCA 11 at [48]

36 See E Campbell, 'Revocation and
Variation of Administrative Decisions' (1996)
22(1) Mon LR 30 at 57–63 for a detailed description of the
reasons for conferring these powers and the consequences of doing
so.

37 See for example the Veterans' Entitlements Act
1986 s.31 and s.118ZP; the Safety, Rehabilitation
and Compensation Act 1988 s.62.

38Pearce v City of Coburg [1973] VR 583 at 587–588;
Leung v Minister for Immigration and Multicultural Affairs (1997)
150 ALR 76, Heerey J at 79

39 (1993) 41 FCR 242; 114 ALR 50

40 (1997) 141 FLR 414

41 (1999) 90 FCR 513, 161 ALR
53

42 (1999) 162 ALR 625

43 (2001) 110 IR 97

44 (1993) 114 ALR 50 at 59–63

45 (1978) 1 ALD
167

46 (1984) 3 FCR 95; 54 ALR 541

47 (2002) 189 ALR 99

48 [2002] VSCA 108 (2 August 2002);
(2002) 5 VR 257

49Dutton v Republic of South Africa (1999)
162 ALR 625
at 636

50 (1990) 92 ALR 93

51 (2000) 99 FCR 251

52 (1990) 92 ALR 93 at 112 and 119–120

53 [2001]
HCA 71 (13 December 2001); (2002) 185 ALR 183

54Jayasinghe
v Minister for Immigration and Ethnic Affairs (1997) 145
ALR 532 at 541; Sloane v Minister for Immigration,
Local
Government and
Ethnic
Affairs (1992) 37 FCR 429; Leung v Minister for Immigration
and Multicultural Affairs (1997) 150 ALR 76, Heerey J at 77–79

55 (1992) 37 FCR 429 at 443

56 E Campbell, 'Revocation and
Variation of Administrative Decisions' (1996)
22(1) Mon LR 30 at 56–57; Jayasinghe v Minister
for Immigration and Ethnic Affairs (1997) 145 ALR 532 at 547
in relation to
a reference to 'finally
determined'.

57 In Minister for Immigration, Local Government
and Ethnic Affairs v Kurtovic (1990) 92 ALR 93, where Neaves
and Gummow
JJ held
that the power
to make
a deportation order once the conditions for such an order
were satisfied was
of a continuing nature.

58Edenmead v Commonwealth (1984)
59 ALR 359 at 365; Heslehurst v New Zealand (2002) 189
ALR 99 at 107

59 See also Minister for Immigration and
Multicultural Affairs v Bhardwaj (2000) 99 FCR 251, Lehane
J at 265.

60Sloane v Minister for Immigration, Local
Government and Ethnic Affairs (1992) 37 FCR 429; Re
Cotterell and Repatriation
Commission [2000]
AATA 444; (2000)
31 AAR 184

61Jayasinghe v Minister for Immigration
and Ethnic Affairs (1997) 145 ALR 532 at 547

62 (1991)
103 ALR 661 at 671

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