Case: Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355
Outcome: followed
The applicant pointed to the decision of the majority of the High Court in Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 wherein their Honours, approving the New South Wales Court of Appeal decision in Tasker v Fullwood [1978] 1 NSWLR 20 at 23G, held that (at [91]-[93]): 'An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. ... In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the "elusive distinction between directory and mandatory requirements" and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. ... In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute".' (Footnotes omitted.) 31 Specifically, the applicant drew attention to the statement in Project Blue Sky to the effect that although an act done in breach of a statutory provision is unlawful and 'Failure to comply with a directory provision "may in particular cases be punishable" ', the act may nevertheless be valid (at [100]). In this regard, reliance was placed on the decision of the Full Court in Formosa v Secretary, Department of Social Security (1998) 46 FCR 117, wherein the Court considered (at 122) that there was much force in the view that the distinction between 'mandatory' and 'directory' requirements had its meaning and utility primarily upon consideration of the consequences of a breach. The applicant also relied on Hall v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 415 ; (2000) 97 FCR 387 at [11] in which Finkelstein J held that: 'what must be determined is the consequence of a failure to comply with such an instruction. ... It is also important, no doubt, to consider the consequences of a failure to adhere strictly to the requirements of the Act'. The legislature, it was submitted, had not addressed the consequences of non-compliance with the requirement for written authorisation of s 155AC representative. The Act does not expressly provide whether such non-compliance leads to the validity or invalidity of a response otherwise authorised. 32 The applicant submitted that several factors indicate that actual but informal authorisation ought not invalidate the response given: the scope and object of the whole statute; the language of the relevant provisions; the nature of the preconditions and their place in the legislative scheme; the consequences if the response was invalid; and finally, the consequences if the response was valid. 33 As to the scope and object of the whole statute, the applicant rightly characterised the Act as 'beneficial legislation', to be interpreted liberally, and in a manner that facilitates the provision of benefits to eligible veterans. 40 The Commission argued that the legislation demanded full compliance with the requirement of written authorisation to the exclusion of all other possible alternatives. '[I]mperative language' of the kind considered in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 is used in ss 155AA(5), 155AC(2) and 155AC(4). The Explanatory Memorandum showed that the legislature had deliberately chosen the most definitive possible means of ensuring that a veteran's representative is authorised. Because Project Blue Sky (at [78]) mandates that the Court has a duty to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have, any attempt to read down the requirement for an authorisation in writing would defeat the intention of s 155AC. Reliance was also placed on the statement by the High Court in Project Blue Sky (at [78]) that: 'Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision'. 41 In this respect, the Commission submitted that it would be impossible to think that Parliament intended to create a provision that said merely, 'You must to this', but then abandon that requirement in situations where a person had been misadvised to the contrary. Parliament was not likely to have used mandatory language such as 'must' if it intended to undercut or relax that imperative in certain sets of circumstances. 42 The Commission submitted that the requirement for writing serves both the interests of applicants and the Board. The exercise of providing a written authority was intended to bring home to the applicant the significance of his/her situation, and protect him/her from the activities of unauthorised persons. The corollary of this is that a written authority also enables the Board to be confident that a representative who submits a written statement on behalf of an applicant has been duly authorised. It is clear from the Explanatory Memorandum that it is the Principal Member who must be satisfied that a representative is duly authorised because the Principal Member is placed under a statutory compulsion , rather than given a discretion, to dismiss the matter in certain circumstances. It is no answer to say that at some later stage a person might send a written authority: the statutory scheme is predicated on the basis that, after a delay of at least two years, there are 28 days in which to comply, and at that point the Principal Member comes under a mandatory duty to act. 52 The parties are correct to say that the case must be decided in the manner approved by the High Court in Project Blue Sky . As a matter of principle, what both counsel had to say about that case is correct. The relevant matters are summarised at [32] above. The difficulty is their application to the facts of this case. 53 Neither the Tribunal's (and the respondents') interpretation, nor that of the applicant, yields a wholly satisfactory result. The result of the Tribunal's interpretation is that a veteran may lose some valuable substantial rights for merely procedural failures. 54 The result of the applicant's interpretation is that a practical burden would be imposed on the Principal Member either to establish somehow that an applicant for review has not, orally or by conduct, authorised a purported representative, or to require the purported representative to obtain the applicant's written authorisation after the expiry of the 28 day period. (The Registrar in this case required that of the purported representative within the 28 day period). 55 Regrettably for the applicant, it seems to me legally necessary that the respondents' interpretation must be regarded as the less unsatisfactory one and, therefore, is the interpretation that must prevail. Notwithstanding that the Act was intended beneficially for veterans, there are three reasons for this. 56 The first is that, if the applicant's submissions are accepted, the Act's specific and detailed provisions are set at nought. Those provisions allow a two year delay; provide for formal notice from the Principal Member of the Board; require specific written authorisation of a purported representative; and then mandate dismissal of the review application after 28 days. The Principal Member would, on the applicant's approach, be required after such 28 day period at least to go through the whole notification process again and perhaps do more, in an inquisitorial fashion, to establish from the applicant personally whether a purported representative was actually authorised. The express statutory scheme would be rendered pointless.