Case: Minister for Immigration and Multicultural Affairs v Bahwadj [2002] HCA 11 ; (2002) 209 CLR 597
Outcome: distinguished
respondent submits that the Act does not prevent the Minister notifying a decision on more than one occasion, either because there is doubt whether the duty imposed by s 66 had been discharged or because it is expedient to do so. It was said that Minister for Immigration and Multicultural Affairs v Bahwadj [2002] HCA 11 ; (2002) 209 CLR 597 shows that where a person exercising statutory power realises a purported exercise is not legally effective, the person can re-exercise the power. In that case an applicant's agent informed the Immigration Review Tribunal that the applicant was unable to attend a hearing and wanted a later hearing date. By error that information was not drawn to the attention of the member constituting the Tribunal, who made a decision adverse to the applicant. On discovering the error, the Tribunal held a further hearing and decided in the applicant's favour. The Minister's application to set aside the second decision on the ground that the Tribunal was functus officio once it had made the first decision was dismissed. Four members of the Court held that the Tribunal's first decision was made in jurisdictional error (denial of natural justice), did not constitute a review as required by the Act, and was of no legal effect. The present case is quite different. Here the Tribunal found, correctly, that it did not have jurisdiction to entertain the appeal. Once it had done that, it was functus officio. If it had purported to re-exercise its power, any "decision" would have been of no effect. The essence of Bahwadj is that the Tribunal's first decision was a nullity, and thus no obstacle to a fresh decision. The respondent relied on s 33(1) of the Acts Interpretation Act 1901 (Cth) for the contention that the requirement in s 66 of the Act that the Minister notify an applicant of the decision whether to grant or refuse a visa can be exercised from time to time. That subsection provides: 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 the occasion requires. As I understood it, this provision was deployed in support of the contention that a subsequent notification could displace an earlier one. Section 33(1) was mentioned in Bahwadj . There the Minister argued that the subsection does not confer any power to make a further decision, because the Act disclosed an intention to the contrary. The High Court held that once it was seen that the first decision was a nullity, the Tribunal was required to revisit the matter because its duty remained unperformed. At [53] Gaudron and Gummow JJ said this was so "regardless of s 33(1) ". At [156] Hayne J said that s 33(1) did not require consideration because the Tribunal had performed its duty only once, by the making of the second decision. Whatever the scope of s 33(1) , it cannot in my view operate in the way in which the respondent seeks to have it apply, namely to invalidate or cancel the legal effect of an earlier performance of a duty. The subsection says nothing about displacing the legal effect of an earlier exercise of power or performance of duty. That it does not have that effect is supported by the contrast provided by subs (3): 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.