Public Law Essentials 01: Remaking decisions

The principle of finality in decisions is important because it ensures that:

• those affected by a decision have certainty as to the outcome and the impacts of the decision once made;
• those who do not like a decision are unable to make multiple attempts at revisiting that decision once made, as this would consume the time and resources of both decision-makers and affected parties.

However, in practice, a strict application of functus officio can produce unfair results. For example, if a decision-maker makes an unintentional mistake in their decision, it may be in neither the party affected nor the decision-maker’s interests to treat the decision-making power as spent.

In this Public Law Essentials we consider the law relating to remaking decisions, provide a framework for decision-makers considering remaking a decision, and address four key questions decision-makers are likely to face:

Has the decision been perfected?

In some circumstances, the question of whether the decision can be re-made does not arise because no decision has in fact been made. This happens when the decision has not been finalised or “perfected”.

The courts have held that there are two requirements which must be met for a decision to have been perfected:

• the mental element of concluding consideration of a matter; and
• the overt act associated with promulgation of that conclusion.

The mental element

In Pintarich v Deputy Commissioner of Taxation [2018] FCAFC 79, the question was whether the relevant decision-maker could reissue a notice to a taxpayer under the tax law. The first decision was communicated to the taxpayer following the inputting of information into a template computer program which (apparently inadvertently) resulted in the remission of an interest charge. After the error was discovered, a second notice was issued (two years later) which resulted in a much larger amount owing by the taxpayer because the interest charge was levied.

Justices Moshinsky and Derrington held that it was open to the decision-maker to issue a further notice. Their Honours said, "there needs to be both a mental process of reaching a conclusion and an objective manifestation of that conclusion.

In that case, their Honours came to the view that the decision-maker had not engaged in the mental process of reaching a conclusion, as evidenced primarily by the following:

• the decision-maker did not turn his attention to the issue of whether the interest charge should be remitted; and
• the making of a decision required a process of deliberation, assessment and/or analysis which did not occur.

Overt act

Although a mental element is necessary to finalise a decision, the mental element alone is not ordinarily sufficient to mean that a decision has been perfected: some form of overt act is required (Semunigus v Minister for Immigration and Multicultural Affairs [2000] FCA 240).

That case concerned a decision of the Refugee Review Tribunal where the member had signed the decision and notified the Registry that a decision had been made. Justices Spender and Madgwick held that the mental element of finalisation was insufficient for the decision to have been perfected, but differed in what overt act would be necessary to perfect the decision:

• Justice Spender concluded that the Tribunal had made its decision once it had been sent to one of the parties: the Minister or the applicant.
• Justice Madgwick's view was that the Tribunal had made its decision once its decision had been sent to the applicant and had therefore "passed into the public domain". Notification to the Minister alone was insufficient for a decision to be made.

Similar approaches have been taken in Minister for Immigration and Citizenship v SZQOY (2012) 206 FCR 25 and Minister for Immigration and Citizenship v SZRNY (2013) 214 FCR 374.

Is there a statutory basis to re-make the decision?

If a decision has been perfected, the next question is whether the relevant legislation or the Acts Interpretation Act 1901 (Cth) permits the decision to be revisited or re-made.

Express powers to reconsider a decision

Legislation under which administrative decisions are made can expressly confer a power to reconsider a decision. For instance, both section 85-4 of the Aged Care Act 1997 (Cth) and section 209-5 of the Higher Education Support Act 2003 (Cth) permit a decision-maker to reconsider decisions when there is a “sufficient reason”. These provisions put beyond doubt that decision-makers can reconsider their decisions. Other schemes allow decisions to be reviewed through an internal review mechanism that can be engaged without an application, such as section 37 of the Fair Entitlements Guarantee Act 2012 (Cth).

Where legislation is silent on the ability to reconsider or review a decision, you must consider whether any of the provisions of the Acts Interpretation Act might assist. The relevant provisions and the principles which relate to their application are set out below.

Section 33(1)

Section 33(1) provides:

"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 courts have grappled with the application of section 33(1). On the one hand, some decisions indicate that it does not permit a decision-maker to revisit a decision; rather it is to ensure that a power is not spent once exercised (eg. Dutton v Republic of South Africa (1990) 92 FCR 575). On the other hand, other decisions have given section 33(1) a more expanded operation and said administrative decision-makers under it have the power to reconsider, revoke or remake a decision (eg. Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193).

It is settled that section 33(1) will apply, subject to a contrary intention, to allow a statutory power to be exercised repeatedly in respect of different individuals or different circumstances: eg. MJD Foundation Ltd v Minister for Indigenous Affairs [2017] FCAFC 37. What is trickier is whether section 33(1) can apply in relation to the same individual and same set of facts to allow a re-making of the decision. In this respect, in MJD Foundation Justice Mortimer held:

"I do not consider section 33(1) effects a general implication into all statutory powers in federal legislation of a power to reverse or undo an exercise of power or to revoke a decision made in the exercise of a statutory power."

The factors which the courts consider in whether section 33(1) allows a decision to be revisited include:

• does the legislation evince an intention of finality? section 33(1), like all provisions in the Acts Interpretation Act, is subject to a contrary intention. Courts look to the whole of the legislation to determine whether a decision should be regarded as final or whether it can be revisited. For example, in Burgess v Minister for Immigration & Multicultural Affairs [2000] FCA 926, Justice Katz held that the limited time period for seeking judicial review of a decision evinced an intention that the decision should be treated as final (and not subject to an implied power to remake pursuant to section 33(1)) so as to resolve disputes about visa status expeditiously.
• whether there has been a change of facts: section 33(1) is more likely to apply if there has been a change in circumstance or a change in facts. In Parker v Minister for Immigration and Border Protection [2016] FCAFC 185, the Full Court considered the re-exercise of a visa cancellation decision based on section 33(1) was valid following the emergence of a "relevant new fact". On the other hand, in Kabourakis v The Medical Practitioners Board of Victoria [2005] VSC 493, the Victorian Supreme Court held that there was no ability of the Medical Practitioners Board to re-open an inquiry into the same incident.
• other features of the statutory scheme: the courts have stressed that the whole of the statutory scheme must be examined to determine whether a contrary intention has been demonstrated to the application of section 33(1). In Minister for Immigration and Border Protection v Makasa [2021] HCA 1, the High Court noted that the particular statutory power of visa cancellation had an express Ministerial "override power" which tended to suggest that the power was not capable of being re-exercised pursuant to section 33(1).

Section 33(3)

Section 33(3) provides:

"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."

Since amendments to the Acts Interpretation Actin 2011 to clarify that section 33(3) applies to administrative as well as legislative instruments, the critical issue to consider in terms of the application of section 33(3) is whether the power to be re-exercised is a "power to make, grant or issue" an "instrument".

The courts have held that there is a difference between a power to grant an instrument on the one hand (to which section 33(3) applies subject to a contrary intention) and a power to a make a decision which is required to be recorded in written form (to which section 33(3) does not apply): see, eg. Laurence v Chief of Navy (2004) 139 FCR 555; Nicholson-Brown v Jennings [2007] FCA 634.

In Flaherty v Secretary, Department of Health and Ageing [2010] FCAFC 67, the Full Federal Court considered whether a power under the National Health Act 1953 (Cth) was a power to grant an instrument. The relevant provision provided that 'the Secretary may (at his or her discretion), by notice in writing to the pharmacist, cancel the approval of the pharmacist …'. The Court found that the power was one to cancel an approval in the exercise of a discretion. The Court found that the requirement for notice to be given in writing was a prescribed mode of communicating the decision rather than being a power to make an instrument in writing.

Was the original decision affected by jurisdictional error?

In the well-known case of Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, a majority of the High Court found that a jurisdictional error rendered the decision of no legal effect and therefore capable of being re-made.

That case concerned a decision of the Immigration Review Tribunal to originally affirm a decision that Mr Bhardwaj should be refused a visa. That decision was made following Mr Bhardwaj's non-appearance at a hearing. However, Mr Bhardwaj had, the day before the hearing, sent a fax stating that he was unwell and would be unable to attend. That fax was not brought to the attention of the relevant Tribunal member. When it was, the Tribunal held another hearing and made a fresh decision. The Minister for Immigration held that the second decision was invalid because it was functus officio.

The High Court held that the original decision amounted to a failure to exercise its jurisdiction and therefore the review power remained, at law, unperformed. Therefore the Immigration Review Tribunal was lawfully able to make another decision.

However, Bhardwaj is not a universal proposition that any decision affected by jurisdictional error has no legal effect and can be revisited by a decision-maker if he or she forms the view that it is affected by jurisdictional error. In Jadwan Pty Ltd v Secretary, Department of Health & Aged Care [2003] FCAFC 288, the Full Federal Court held (after considering the reasons in Bhardwaj in some detail):

"In our view, Bhardwaj cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever. All that it shows is that the legal and factual consequences of the decision, if any, will depend upon the particular statute."

Another decision of the Federal Court which demonstrates that it is difficult to rely on the concept of jurisdictional error to remake a decision is Australian Pesticides and Veterinary Medicines Authority v Administrative Appeals Tribunal [2008] FCA 1393. In that case, the Australian Pesticides and Veterinary Medicines Authority (APVMA) revoked an approval granted for the registration of a chemical product, which was the subject of a false application made by Imtrade Australia Pty Ltd.

Imtrade provided a fictitious product name and address for the purposes of registration. The APVMA removed the products from the register on the basis that the registrations had been procured by fraud and were therefore affected by jurisdictional error and amounted to a nullity.

Imtrade sought review in the Administrative Appeals Tribunal on the basis that the removal of the product from APVMA's Register was effectively a "decision" to suspend or cancel an approval of registration. APVMA contended that the Tribunal did not have jurisdiction because the removal of the product from the Register was not the result of a decision made by APVMA, but rather a consequence of the original decision being invalid on the basis of fraud, and therefore no decision at all.

Justice Gilmour rejected the premise that APVMA's decisions were affected, procured or induced by fraud. Having done so, Justice Gilmour held that the decisions could not be disregarded on the basis that they were vitiated by fraud. Justice Gilmour stated that:

"Whether an administrative decision ought be presumed to be valid until set aside by a court will depend upon the particular case having regard always to the particular legislation under which the decision was made… the presumption [that a decision is valid until set aside by a court] cannot be displaced, merely at the instance of the Authority, in the face of factual question, the resolution of which is necessary before determining the legal validity or otherwise of the several decisions to approve and to register."

Justice Gilmour went on to conclude:

"… the Authority, in my opinion, ought to have sought appropriate relief from the Court rather than resorting to self-help."

Can the decision be re-made by consent?

In Comptroller-General of Customs and Anor v Kawasaki Motors Pty Ltd (1991) 103 ALR 661, the Comptroller's delegate had made an order under the Customs Act 1901 (Cth) revoking a Commercial Tariff Concession Order. During peripheral litigation, both parties had agreed that the revocation order was flawed (on various grounds which might now be categorised as jurisdictional errors) and entered consent orders setting it aside. The delegate made a second revocation order to replace the original order. Before the Federal Court, Kawasaki argued that the second revocation order was invalid, for reasons including that the delegate had exhausted their revocation power once the first order had been made.

The Full Federal Court disagreed, holding that where the decision-maker and affected parties consented to the making of an order setting aside a decision, then the law may treat that decision as having never been made and that a power to decide a matter may be re-enlivened as a consequence.

Justices Hill and Heery (with whom Justice Beaumont agreed) found that there was nothing to prevent the exercise of the same power to make the second, valid order, because the first order was void as agreed by the parties. Their Honours remarked:

"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."

Justice Beaumont added:

"Some administrative decisions, once communicated, may be irrevocable. But where it appears to a decision-maker that his or her decision has proceeded upon a wrong factual basis or has acted in excess of power, it is appropriate, proper and necessary that the decision-maker withdraw his or decision."

One of the features of Kawasaki Motors that is important to bear in mind is that the only affected parties were the Comptroller-General and Kawasaki Motors. The situation would be more complicated if a decision affected or was relied on by third parties. In this situation, we do not consider that the consent of only one affected party would be sufficient to allow a decision to be re-made.