Not today: what is the "last day" in legislation (and how can you tell)?

Government (and those dealing with government) will be very familiar with deadlines set by legislation, but might not appreciate that those deadlines can be extended if they fall on the weekend or public holidays.

That's because section 36(2) of the Acts Interpretation Act 1901 (Cth), an important interpretative provision, can in certain circumstances extend the time for doing something that is required or allowed to be done by an enactment. But how does it operate?

In Minister for Immigration and Border Protection v Kumar [2017] HCA 11, the High Court clarified the scope and operation of section 36(2).

Extending time via section 36(2) of the Acts Interpretation Act

Section 36(2) says that:

"…If:

(a)        an Act requires or allows a thing to be done; and

(b)        the last day for doing the thing is a Saturday, a Sunday or a holiday;

then the thing may be done on the next day that is not a Saturday, a Sunday or a holiday.

Example: If a person has until 31 March to make an application and 31 March is a Saturday, the application may be made on Monday 2 April."

A day too late…

On Monday 13 January 2014, Mr Kumar applied for a "572 visa".

A criterion for the grant of the 572 visa was that, at the time of application, Mr Kumar must have held a particular kind of visa, which relevantly included a "485 visa".

Mr Kumar had previously held a 485 visa, but it had expired on Sunday 12 January 2014 – one day before he made his 572 visa application. Accordingly, he was refused the 572 visa. The matter ended up in the High Court on appeal.

But is it the "last day"?

In the High Court, the argument turned on what, if anything, was the "last day" for Mr Kumar's application for a 572 visa under the relevant legislation.

Mr Kumar contended that, under the relevant legislation, the last day for him to apply for a 572 visa, which was capable of being granted, was a Sunday. He contended that this was a “last day” for the purposes of section 36(2), and as such his application could be made on the following Monday.

The Minister contended that the legislation in issue did not impose any time limit on actually applying for a 572 visa. Mr Kumar’s visa application was not time-barred and was accepted as a valid application (he just happened to no longer meet the criterion of holding a 485 visa by applying on the Monday). The expiry date of his 485 visa did not constitute a “last day” for the purposes of making the application within the meaning of section 36(2).

The High Court decides: there has to be a deadline, express or implied

The plurality (Bell, Keane and Gordon JJ) noted that section 36(2) is not confined to statutory provisions that expressly stipulate a “last day” for a thing to be done, and that an Act may expressly or impliedly “require or allow a thing to be done”.

This however did not help Mr Kumar. They found that “no time limit is imposed [on applying for the visa] expressly or by necessary implication” under the relevant legislation. The fact that the last day on which Mr Kumar might have applied for a 572 visa relying on his status as the holder of a 485 visa was a Sunday did not engage section 36(2):

"…[Section 36(2)] does not otherwise alter the rights or obligations conferred or imposed by the Act. The language of s 36(2) cannot be read as deeming the thing to be done as if it were being done on the earlier date, nor as deeming a state of affairs that existed on the earlier date to be in existence on the later date."

The plurality also found that s 36(2), in its current form, is not materially different to its predecessor. It noted that s 36(2) was amended (in 2011) in line with modern drafting techniques, and where different words were used between the versions of the provision, this was for the purpose of clearer style.

In his own reasons, Justice Gageler stated that section 36(2) “is a straightforward extension of time provision”. He found that Mr Kumar’s argument conflated the thing allowed to be done by Mr Kumar (making a valid visa application) with the things the Minister had to do (determining whether the criteria were met and deciding whether to grant the visa or not). The relevant legislation did not impose any time limit for making a valid application. Whether Mr Kumar made the application on the Sunday or Monday, the legal effect would be the same - the Minister would be required to consider and decide the application.

Justice Nettle dissented, finding that, in substance, the visa criterion in question practically and indirectly created a "last day" for making the application.

Takeaway points for decision-makers

The decision confirms an orthodox approach to interpreting section 36(2) and provides some certainty for government administrators and persons and entities dealing with government.

A “thing” that is “required” or “allowed” to be done by an enactment, and the “last day” for doing that thing, may be express or implied. However, for section 36(2) to apply there must actually be a “last day” for doing the thing, and that day must arise squarely from the statute.

The decision also confirms that section 36(2) is solely an “extension of time provision”. Contrary to the Federal Court's decision below, section 36(2) cannot:

• effectively back-date the doing of a thing; or

• deem a state of affairs which previously existed as existing on a later date.