By Dan Star QC -
Key decisions
- Minister for Indigenous Affairs v MJD Foundation Limited[2017] FCAFC 37
- Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (CFMEU) [2017] FCA 157
- Sydney Equine Coaches Pty Ltd v Gorst [2017] FCAFC 34
Administrative law
Whether s 33 of the Acts Interpretation Act 1901 (Cth) authorised revocation of administrative decision – whether the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) evinced a contrary intention preventing revocation of a decision
Minister for Indigenous Affairs v MJD Foundation Limited [2017] FCAFC 37 (3 March 2017) concerned the interaction between s 33 of the Acts Interpretation Act 1901 (Cth) (the Acts Interpretation Act) and s 64(4) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the Land Rights Act). Section 33(1) of the Acts Interpretation Act provides that: ‘Where an Act confers a power or function or imposes a duty, then the power may be exercised and the function or duty must be performed from time to time as occasion requires’.
There were two core issues before the Full Court (Perram, Mortimer J and Perry JJ). The first was whether s 33(1) of the Acts Interpretation Act empowered the incoming Minister to revoke the earlier decision of a former Minister under s 64(4) of the Land Rights Act. The second issue was whether the scheme provided by the Land Rights Act evinced a ‘contrary intention’ for the purposes of s 2(2) of the Acts Interpretation Act to displace any powers of revocation that may be conferred by s 33(1).
Justice Mortimer (with whom Perry J agreed) held that there was a contrary intention evinced by the scheme of the Land Rights Act as a whole (and Pt VI of the Act, in which s 64(4) is contained, in particular), so that s 33(1) of the Acts Interpretation Act was not applicable. That was a sufficient basis on which to determine the appeal. However, had her Honour not been satisfied of the existence of a contrary intention, in Mortimer J’s opinion, the scope of s 33(1) of the Acts Interpretation Act did not extend to a general implication of an additional power to reverse or undo an exercise of power, whether by revoking a decision made in the exercise of a power or otherwise (at [110]). Justice Perram dissented and held s 33(1) did authorise the incoming Minister to revoke the former Minister’s direction, and the scheme of the Land Rights Act did not evince a contrary intention for the purposes of s 2(2) of the Acts Interpretation Act (at [5]).
