The Acts Interpretation Act doesn't give
decision-makers an automatic right to revisit a
Decision-makers who want to revisit a decision, and potentially
remake it, often assume they have the power to do so, even if the
relevant Act does not spell this out. That assumption could be
seriously flawed, following the Federal Court's decision in MJD
Foundation Limited v Minister of Indigenous Affairs  FCA
A decision-maker's power and the Acts Interpretation
Section 33(1) of the Acts Interpretation Act 1901 says:
"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."
This has been used by decision-makers to allow them to revisit,
revoke or vary an existing decision.
The decision(s) in the MJD Foundation case
The MJD Foundation made an application for funding from the
Aboriginals Benefit Account; the Minister for Indigenous Affairs
approved $10m funding from the account under the Aboriginal Land
Rights (Northern Territory) Act 1976 (Cth).
Following the change of government in 2013, the new Minister
decided to revoke the decision to approve the funding, relying upon
Justice Flick confirmed that determining whether a discretionary
power can be exercised from time to time, or will be spent once it
is exercised, will depend on the interpretation of the statute
bestowing the relevant power.
However, under the Land Rights Act, once the Minister directed
an amount be debited, the Minister could not direct that an amount
not be debited. The Minister could use the power to direct that
further amounts be debited, but could not revisit an existing
direction to revoke or vary that direction. In other words, the
power conferred could only be exercised once, and not from time to
time (the exception being where the Minister made a direction that
was a legal nullity). Given that statutory framework, the Minister
could not rely on section 33(1) of the Acts Interpretation Act to
revisit, revoke or vary an existing direction.
The take-home message here is that whether a particular
statutory power can validly be revisited once it is exercised will
depend on the particular statutory context. Decision-makers should
not assume that section 33 of the Acts Interpretation Act will
permit a decision to be re-made.
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
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