Case: Esber v The Commonwealth of Australia (1991) 174 CLR 430
Outcome: considered
Esber v The Commonwealth of Australia (1991) 174 CLR 430, the High Court considered the entitlement of a former member of the Defence Force who had applied to redeem weekly payments of compensation so that he might receive a lump sum in lieu as prescribed by the relevant statute. The application was refused. The applicant applied to the Administrative Appeals Tribunal for review of the decision. After application, but before determination, the relevant provision was repealed. The repealing Act provided that proceedings instituted under the earlier legislation, but not completed upon repeal, "may be continued on and after that day and, when the proceedings are so continued, the relevant authority and the Commonwealth shall be parties to those proceedings". Reliance was placed upon s 8 of the Acts Interpretation Act 1910 (Cth) (the "Commonwealth Interpretation Act") which was, in terms, similar to s 20 of the State Interpretation Act . The majority (Mason CJ, Deane, Toohey and Gaudron JJ) held that the relevant section of the earlier Act conferred substantive rights. Their Honours said at 440: If it be assumed that the appellant did not have a right to redemption in the sense first discussed, he had a right to have his claim to redemption determined in his favour if the delegate had wrongly refused his claim. To borrow a sentence from the judgment of Hope JA in NSW Aboriginal Land Council v The Minister ...: "The right might be said to be a conditional one, namely conditional upon the relevant facts being established, but the right was nonetheless a right because it was conditional." Once the appellant lodged an application to the Tribunal to review the delegate's decision, he had a right to have the decision of the delegate reconsidered and determined by the Tribunal. It was not merely "a power to take advantage of an enactment"... . Nor was it a mere matter of procedure ... ; it was a substantive right ... . Section 8 of the Acts Interpretation Act protects anything that may truly be described as a right, "although that right might fairly be called inchoate or contingent" ... . This was such a right. It was a right in existence at the time the 1971 Act was repealed. That being so, and in the absence of a contrary intention, the right was protected by s.8 of the Acts Interpretation Act and was not affected by the repeal of the 1971 Act. The cases contemplate at least three distinct situations in which s 20 might be engaged. Firstly, the relevant legislation might create a right which, by force of the legislation, accrues without any qualification or requirement for further action. Such a right will survive repeal of the relevant legislation. Secondly, the legislation may confer a right upon persons having certain qualifications. Such legislation may contemplate an investigation to determine whether a particular person has the relevant qualifications. Using the language of Ho Po Sang , there may be a need for investigation to ascertain whether the requirement for such qualifications is satisfied. Such a right will also survive repeal of the relevant statute. That situation is to be distinguished from that in which an investigation is carried out for the purpose of determining whether or not a right should be granted. The former situation was considered by the New South Wales Court of Appeal in the Land Council case where it was said that a right which could only be implemented "by a non-discretionary decision of an official or a court" would survive, "provided that any statutory machinery has been set in train before the repeal or amendment." The "non-discretionary decision" seems to be the equivalent of the investigation contemplated in Ho Po Sang . Finally, where a particular procedure has been commenced, there may be a right to have the procedure completed in accordance with the statute in its unrepealed form. This was the case in Esber .