Case: The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62 ; (1979) 144 CLR 45
Outcome: applied
The High Court in The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62 ; (1979) 144 CLR 45 said, at 50. However, it is not a legitimate approach to interpretation to compare a statutory discretion which is expressed in unlimited terms as to one subject with another discretion in the same statute which is confined to specified considerations with reference to a different subject and thereby conclude that the first discretion necessarily excludes the considerations specified in relation to the second discretion. The general rule is that a discretion expressed without any qualification is unconfined except in so far as it is affected by limitations to be derived from the context and scope and purpose of the statute. The fact that a discretion relating to a different subject matter is confined to a particular consideration provides no rational reason for saying that another discretion expressed without qualification does not embrace that particular consideration. Applied to the criterion of public interest, the argument is even less attractive. It would bring about the result, if accepted, that a discretion generally expressed may extend to any factor except public interest merely because another discretion directed to a very different subject matter is limited to the exclusive criterion of public interest. 61 Further, the thrust of s 1237AAC, although also dealing with debt relief, is significantly different. Section 1237AAC deals with specifically enumerated benefits in particular situations which, if found, have mandatory consequences; that is, if it is shown that there was an entitlement to a particular benefit which was unclaimed, the debt must be waived. That is not the case in s 1237AAD. That section provides a more general avenue for relief, and grants a broad discretion to the Secretary to waive debts, having regard to the way in which the debt resulted, any special circumstances that might exist, and the appropriateness of waiving the debt. 62 The words in s 1237AAD(b) should not be fettered, or narrowed, in the manner argued for by the respondent and accepted by the Tribunal in this case. 68 In oral argument, Mr Rangiah, counsel for the respondent, submitted that the reason for this was that the Tribunal considered the matter should not be given any weight in the circumstances of the case. The Court was asked to infer from the Tribunal's opinion that " The notional entitlement of the Applicant ... is not sufficiently unusual, uncommon or exceptional as to justify special circumstances waiver" , that the Tribunal did in fact consider the appellant's notional entitlement within the range of relevant factors going to special circumstances, but gave it no weight, and for that reason it was unnecessary to mention it specifically. 69 In my opinion, following its conclusion that notional entitlement could not of itself amount to special circumstances, the Tribunal did not mention notional entitlement as one of a range of relevant considerations, simply because it did not consider it relevant. It follows that, in my judgment, the Tribunal misdirected itself in deciding whether special circumstances existed for the purposes of waiver under s 1237AAD of the Social Security Act. Ground one of the Notice of Appeal has therefore been made out. 70 The appellant argues that the Tribunal's reasons are insufficient to discharge its obligations under ss 43(2) and (2B) of the AAT Act. Those sections provide: (2) Subject to this section and to sections 35 and 36D, the Tribunal shall give reasons either orally or in writing for its decision. ... (2B) Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.