Case: Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39
Outcome: cited
NBMB v Minister for Immigration and Citizenship (2008) 100 ALD 118 ( NBMB ), delivered on 26 February 2008, Flick J reached a different conclusion. As it happened, his Honour's conclusion was not part of the ultimate reason for deciding the case. In the course of a challenge to a decision of the Tribunal, the applicant sought leave to amend the application to allege that the reconstitution of the Tribunal on the remittal of the review had been improper. His Honour refused leave to so amend the application, and in any event his Honour said that he would have resolved the point adversely to that applicant. In that case, as here, the Minister said that the reconstitution of the Tribunal following the quashing of its earlier decision was made under s 421 of the Act rather than s 422A of the Act (as contemplated by Lindsay FM in SZLQK ). His Honour noted that the justice of the case, when a decision of the Tribunal has been set aside, is generally that the Tribunal be reconstituted by a different member: see also Northern NSW FM Pty Limited v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 43; Australian Trade Commission v Underwood Exports Pty Ltd (1997) 49 ALD 426 at 427. In NBMB , at [39]-[41], Flick J decided that there was no reason to impose any constraint upon the power conferred by s 421(2) in that circumstance. As he pointed out, it is a power that can be exercised from time to time: Acts Interpretation Act 1901 (Cth), s 33(1). The discretion to exercise that power, his Honour said, is to be exercised in the light of all the circumstances, including the order of the Federal Magistrates Court quashing the initial decision and what is recognised as "justice being seen to be done". His Honour also adverted to the possibility that the unavailability of a member for the purposes of s 422 may not simply be where the term of appointment has expired, or the member has died or become unable to carry out his duties, or has resigned. Unavailability might also arise, his Honour speculated at [41], where an order is made quashing the decision of the Tribunal as originally constituted. Otherwise, a member may remain "available" even though "justice in general is better seen to be done" if that member did not further participate in any re-hearing. There are good reasons that it should be available to be so exercised it, namely that the decision of Member Muling had been quashed for jurisdictional error. As Flick J said in NBMB at [39]-[40]: The decision of the Tribunal as initially constituted had been set aside by the Federal Magistrates Court. Where such an order is made, "justice is in general better seen to be done if the Court or the Tribunal is reconstituted for the purposes of the rehearing" : Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 43. See also Australian Trade Commission v Underwood Exports Pty Ltd (1997) 49 ALD 426 at 427. The "usual position [is] that remission to a differently constituted tribunal is the ordinary way to proceed": Industry Research and Development Board v IMT Ltd [2001] FCA 85 at [40] . There is no reason to impose any constraint upon the power conferred by s 421(2). The decision of the initial tribunal having been set aside, the exercise of the power conferred by s 421(2) thereafter arose for consideration. It is a power that can be exercised from time to time: s 31 of the Acts Interpretation Act 1901 (Cth). The discretion to be exercised by the principal member or his delegate was a discretion to be exercised in light of all the circumstances, including the order of the Federal Magistrates Court and what is recognised as "justice being seen to be done." Section 421(2) confers a power of appointment upon the principal member or his delegate: Minister for Immigration and Multicultural Affairs v Wang [2003] HCA 11 ; (2003) 215 CLR 518 at [40] per McHugh J. In the present proceedings, that power was exercised by a person with an appropriate delegation.