2007 WAIRC 00502

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

FULL BENCH

CITATION : 2007 WAIRC 00502

CORAM
: THE HONOURABLE M T RITTER, ACTING PRESIDENT
CHIEF COMMISSIONER A R BEECH
COMMISSIONER P E SCOTT

HEARD
:
WEDNESDAY, 28 MARCH 2007

DELIVERED : WEDNESDAY, 6 JUNE 2007

FILE NO. : FBM 1 OF 2007

BETWEEN
:
THE REGISTRAR
Applicant

AND

LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION, WESTERN AUSTRALIAN BRANCH
Respondent

CatchWords:
Industrial Law (WA) - Registrar directed by Commissioner to commence enforcement action - Application for leave to discontinue enforcement proceedings under the Industrial Relations Act 1979 (WA) - Whether a Commissioner has the power to revoke a direction to the Registrar - Consideration of application of s3 and s48 of the Interpretation Act 1984 (WA) - Relevant authorities examined - Nature of the power to direct examined - Limits of administrative discretionary powers considered - Statutory construction - Issue of "functus officio" - Duty of courtesy of counsel - Application for leave to discontinue dismissed

Legislation:
Industrial Relations Act 1979 (WA) (as amended), s6(a), (b), s7, s8(2), s12, s25(1)(c), s26(1)(a), s32, s42C(4), s44, s44(6), (6a), s77, s80ZH(2), s82(1), (2), (3), s82A, s83, s83B, s83D, s83E, s84A, s84A(1)(b), s84A(4)(b), s90(1), s93, s93(9), s96(10), (11), s97VX(4), s97WE(2)

Industrial Relations Commission Regulations 2005, r16(5), r60(1), (2), (3)

Interpretation Act 1984 (WA), s3, s48, s56

Result:
Application for leave to discontinue dismissed
REPRESENTATION:
Counsel:
APPLICANT : MR R BATHURST (OF COUNSEL), BY LEAVE
RESPONDENT : MR D SCHAPPER (OF COUNSEL), BY LEAVE
Solicitors:
APPLICANT : STATE SOLICITOR’S OFFICE
RESPONDENT : MR J NICHOLAS, LHMU


Case(s) referred to in reasons:

A-G (Queensland) v AIRC (2002) 213 CLR 485
Allianz Australia Insurance Ltd v Crazzi [2006] NSWSC 1090
Attorney General (WA) v Marquet (2003) 217 CLR 545
Australian Broadcasting Tribunal v Bond Corporation Holdings Ltd and Others (1989) 86 ALR 424
Australian Conservation Foundation v Forestry Commission (1988) 79 ALR 685
Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651
Burgess v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 58
Clarke v Vanstone (2004) 211 ALR 412
Comeau’s Sea Foods Ltd v The Queen in right of Canada (1997) 142 DLR (4th) 193
CWC v Canada (Attorney General) [1989] 1 FC 643 (FCTD)
Day v Hunkin (1938) 61 CLR 65
Dinsdale v R (2000) 202 CLR 321
Dutton v Republic of South Africa (1999) 162 ALR 625
Export Development Grants Board v EMI (Australia) Ltd (1985) 9 FCR 269
FAI Insurances Ltd v Winneke and Others (1982) 151 CLR 342
Federal Commissioner of Taxation v Citylink Melbourne Limited (2006) 80 ALJR 1282
Firearm Distributors v Carson (2001) 2 Qd R 26
Gerlach v Clifton Bricks Pty Ltd (2002) 188 ALR 353
Goldie v Commonwealth [2002] FCA 261
Gorman v Health Care Complaints Commission and Medical Board of NSW [2000] NSWSC 1228
Harris v Attorney General (Cth) (1994) 52 FCR 386
Helm v Hansley Holdings Pty Ltd (In liq) (1999) 118 IR 126
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438
In re Davis (1947) 75 CLR 409
In Re Her Honour Warden Richardson SM; Ex Parte Precious Metals Australia Ltd [2006] WASC 192
Kabourakis v The Medical Practitioners Board of Victoria [2006] VSCA 301
Lawrie v Lees (1881) 7 App Cas 19
Minister for Aboriginal Affairs and Another v Peko-Wallsend Ltd and Others (1986) 162 CLR 24
Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Minister for Immigration and Multicultural Affairs v Bhardwaj (2000) 99 FCR 251
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration and Multicultural and Indigenous Affairs v Watson (2005) 145 FCR 542
Minister of Labour for Ontario v CUPE (2003) 226 DLR (4th) 193
Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273
NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 223 ALR 171
North Australian Aboriginal Legal Aid Service Inc v Bradley and Another (2002) 192 ALR 701
North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595
Parkes Rural Distributions Pty Ltd v Glasson (1986) 7 NSWLR 332
Pfeiffer v Stevens (2001) 209 CLR 57
Ping v Medical Board of Queensland (2004) 1 Qd R 282
Pyrenees Shire Council v Day and Another (1998) 192 CLR 330
Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26
R v Anderson; ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177
R v Barlow (1997) 188 CLR 1
Re 56 Denton Road, Twickenham [1953] 1 Ch 51
Re Bolton and Another; Ex parte Beane (1987) 162 CLR 514
Re City of Joondalup; Ex Parte Mullaloo Progress Association Inc [2003] WASCA 293
Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board (1982) 41 ALR 467
Scarfe v FCT (1920) 28 CLR 271
Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429
Sue v Hill and Another (1999) 199 CLR 462
The Registrar of the Western Australian Industrial Relations Commission v Liquor, Hospitality and Miscellaneous Union, Western Australian Branch (2007) 87 WAIG 126
VQAR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 900
WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 210 ALR 190
Walter Construction Group Ltd v Fair Trading Administration Corporation [2004] NSWSC 158
Walter Construction Group v Fair Trading Administration Corporation [2005]) NSWCA 65
Watson v MIMIA [2006] HCA Trans 138
Weiss v R (2005) 224 CLR 300


Case(s) also cited:

No additional cases cited.


Reasons for Decision

RITTER AP:

1. The Issue
1 The key issue which is required to be addressed in these reasons is whether a Commissioner, after proceedings have commenced, has the power to revoke a direction to the applicant for the enforcement of an order, given under s84A(1)(b) or s93(9) of the Industrial Relations Act 1979 (WA) (the Act).

2. The Context of the Issue
2 The issue arises in the following way.
3 The substantive application to the Full Bench is an application by the Registrar of the Western Australian Industrial Relations Commission (the Registrar; the Commission) commenced following a direction to do so by the Commission pursuant to s84A(1)(b) or s93(9) of the Act. The application is for the enforcement of an order made by Commissioner Harrison on 1 December 2006, following conferences pursuant to an application under s44 of the Act. Section 84A(1)(b) provides that the application may be made “at the direction of the Commission”. Section 93(9) of the Act also provides relevantly that subject to the Act “the Commission may direct the Registrar or a deputy registrar to make an application under section…84A …”
4 As required by s84A(1)(b) the application was made in the manner prescribed. This is set out in regulation 60(1) and Form 12 of the Industrial Relations Commission Regulations 2005 (the regulations).
5 The Commission as defined in s7 and set out in s8(2) of the Act includes the commissioners appointed to their offices. Commissioner Harrison, in this capacity, made the relevant direction to the Registrar on 19 December 2006. The application was then commenced on 12 January 2007. The application was listed for hearing on 30 and 31 January 2007 but these dates were vacated by order of the Full Bench on 24 January 2007.
6 The application was re-listed for a hearing to take place on 28 March 2007. On 9 March 2007 the Registrar filed, by his solicitor, a notice of application for leave to discontinue the application in the form of Form 1 of the regulations.
7 That application was specified as being based on the revocation of the direction. The date of the revocation was not provided in the application. The application to discontinue was heard on 28 March 2007. As stated the key issue was whether the Commission, at that time, had the power to revoke the direction which had been made.
8 As will be later set out, in my opinion, the answer to this question lies in a consideration of the nature of the power to direct in the context of the Act as a whole, and having regard to the content of s48 and s3 of the Interpretation Act 1984 (WA) (the IAWA).

3. Factual and Procedural Background
9 The relevant factual and procedural background is:-
(a) The background to the commencement of the substantive application is fully set out in my reasons for adjourning the hearing of the application; agreed to by Beech CC and Scott C (the adjournment reasons). (See The Registrar of the Western Australian Industrial Relations Commission v Liquor, Hospitality and Miscellaneous Union, Western Australian Branch (2007) 87 WAIG 126).
(b) The application to the Full Bench under s84A(1)(b) was for the enforcement of paragraph [3] of the order of Commissioner Harrison dated 1 December 2006 in matter C 89 of 2006. A copy of the order was attached and marked Annexure 1 to the application.
(c) Application C 89 of 2006 was lodged by the Director General of the Department of Education and Training (the Director General) pursuant to s44 of the Act on 25 October 2006. The application was allocated to Commissioner Harrison. In the application the Director General sought the assistance of the Commission to lift bans put in place by the respondent and its members. The Commission was advised that the respondent’s members had voted to immediately impose bans at a mass meeting held on 30 November 2006. The bans were set out in paragraph [7] of the adjournment reasons.
(d) An order lifting the bans was made by Commissioner Harrison on 1 December 2006. In a detailed preamble to the making of the order, the Commissioner said she had “formed the view that the bans that the respondent and its members have in place which were voted on by the respondent’s members on 30 November 2006 and confirmed in a notice to the respondent’s members on 30 November 2006 should be lifted”. The Commissioner said in reaching this conclusion she had taken into account “the interests of those person [sic] directly involved in this dispute, particularly students, will be compromised if the bans are not lifted”.
(e) The terms of the order made by Commissioner Harrison were set out in paragraph [11] of the adjournment reasons. In making the order the Commissioner said she had regard for “the interests of the parties directly involved, the public interest and to prevent the further deterioration of industrial relations.”
(f) The order which was later sought to be enforced was order 3. This was that “the respondent, its officers, agents and employees are to take reasonable steps to inform its members about the terms of this order and direct its members to comply with this order”.
(g) The direction to the Registrar was contained in a Memorandum dated 19 December 2006. In its substantive terms it said: “Further to my memo of 6 December 2006, after having received and read your report dated 13 December 2006 I have concluded that the respondent and its members have failed to comply with a number of requirements of the Order which issued on 1 December 2006. In accordance with the powers vested in me under s84A(1)(b) of the Industrial Relations Act, 1979 I therefore direct you to make application in the prescribed manner to the Full Bench for enforcement of the order issued by me on 1 December 2006.” The direction was, as stated, made under s84A(1)(b) of the Act. The Full Bench was not provided with the Memorandum dated 6 December 2006 or the Report dated 13 December 2006.
(h) The substantive application was filed on 12 January 2007 by the Registrar. The direction was attached to application FBM 1 of 2007.
(i) As stated in paragraphs [13] and [14] of the adjournment reasons, the Registrar was advised that the dates for the hearing of the substantive application would be 30 and 31 January 2007.
(j) That hearing was adjourned upon the application of the respondent, on the basis that an application for leave to appeal out of time and if granted an appeal against the orders which were the subject of the enforcement proceedings had been filed on 17 January 2007 together with appeal books. Subsequent to the adjournment being granted, the application for leave to appeal and the appeal were dismissed on 2 March 2007 on the basis of the filing of a notice of discontinuance on 28 February 2007.
(k) On 6 February 2007 the substantive application was relisted for hearing on 28 and 29 March 2007.
(l) The application for leave to discontinue the substantive application was filed on 9 March 2007 in accordance with Form 1 of the regulations. The notice of application was signed by Mr Bathurst for the State Solicitor who had been retained to act for the Registrar. The application stated as the grounds of the application: “The direction to the Applicant under section 84A(1)(b) of the [Act] has been revoked. The Applicant no longer wishes to proceed with the application. The Respondent consents to the application being discontinued”.
(m) On 13 March 2007, Mr Bathurst telephoned my associate to make an enquiry which will be set out in a moment. The enquiry was answered by a letter from my associate to Mr Bathurst dated 14 March 2007. This was sent on my instructions. The letter from my associate, in numbered paragraphs, set out some of the background to the application. Paragraph [6] of the letter set out the enquiry by Mr Bathurst. This was:-
“6. Yesterday you telephoned me to enquire:-

(a) Whether the Full Bench could act on the application to discontinue.

(b) Whether the Full Bench was satisfied there was jurisdiction or power for the Commission to withdraw a direction under s84A(1)(b) of the Industrial Relations Act 1979 (the Act).

(c) Whether the Full Bench would accept or require written submissions on (a) and (b).”

(n) The letter from my associate said it was the intention of the Full Bench to convene to hear the application to discontinue on 28 March 2007. My associate had also made it clear to both parties, that the substantive hearing would not take place on 28 March 2007 in the event that the application to discontinue did not succeed.
(o) Paragraphs [9]-[12] of my associate’s letter dated 14 March 2007 were in the following terms:-
“9. The Acting President has requested that, prior to the hearing you, or the respondent, may make written submission on issues, (a) and (b) above, which the Acting President and/or other members of the Full Bench may well have raised in any event.

10. In addition, the Acting President has requested that he would welcome written submissions, by you or the respondent on:-

(a) Whether the Full Bench has the power to make an order for the discontinuance of the application, as opposed to an order for the dismissal of the application; and if so the source(s) of the power of the Full Bench to make an order for discontinuance and/or dismissal.

(b) Whether in the circumstances of this application, it makes any material difference to the parties if the Full Bench were to make an order for dismissal as opposed to an order for discontinuance.

(c) Irrespective of whether the Commission has the power to revoke the direction, is it the alternative position of the Registrar that he will in any event not proceed to call any evidence in support of the application and therefore will contend that the application should, in any event, be dismissed for that reason.

11. As the Director-General of Education was the entity in whose favour the order, the subject of the direction by the Commission, was made and because the Director-General was previously provided with all relevant correspondence in relation to the adjournment application, I have been instructed to advise the Director-General of Education of the date of the hearing of the application to discontinue the enforcement application.

12. The written submissions referred to above should be filed and served by 4:00pm on Wednesday, 21 March 2007.”

(p) A copy of the letter from my associate to the Registrar’s solicitor was sent to the respondent.
(q) The Director General did not file any submissions in response to the letter from my associate. The respondent filed submissions which agreed, other than with respect to point (iv) in the next paragraph, with those filed by the Registrar.
(r) The Registrar’s outline of submissions in support of the application for leave to discontinue was filed on 19 March 2007. In summary, it was submitted:-
(i) Commissioner Harrison was empowered to revoke her direction on 19 December 2006, made under s84A(1)(b) of the Act, because of the contents of s48 of the IAWA.
(ii) The Full Bench had the power to order the substantive application to be discontinued or dismissed pursuant to regulation 16(5) of the regulations.
(iii) Whether the matter was discontinued or dismissed did not make any practical difference to the Registrar.
(iv) If the Full Bench was not of the view that Commissioner Harrison had the power to revoke her direction dated 19 December 2006, the Registrar would proceed with the enforcement application.
(s) A copy of the purported revocation of the direction by Commissioner Harrison, or the reasons for the purported revocation were not provided to the Full Bench. The Full Bench was however provided with a copy of an order made by Commissioner Harrison on 21 February 2007 which revoked the order issued on 1 December 2006. The Commissioner did not purport to revoke the order retrospectively.
(t) In the order made on 21 February 2007, Commissioner Harrison again set out in some detail in the preamble, the relevant background as follows:-
(i) A report back conference occurred on 18 January 2007 where the respondent applied to have the order revoked. Written submissions about the application were subsequently provided to Commissioner Harrison and a conference was then convened on 25 January 2007.
(ii) There was no agreement between the parties about whether the order should be revoked at the conclusion of the conference so the matter was set down for hearing and determination on 29 January 2007.
(iii) On 25 January 2007 the respondent withdrew its application for the order to be revoked and the hearing date was vacated.
(iv) At a further report back conference on 16 February 2007 the respondent again sought to vary the order by deleting “revoked or varied by the Commission” in order 7 and inserting in lieu “16 February 2007”. The parties were requested to put their positions in writing on this application to vary the order, by close of business on 16 February 2007.
(v) By email received on 16 February 2007 the respondent maintained its position that the order should be varied as no work bans or restrictions on the performance of work by the respondent and its members were in place and none were foreseen or planned given the positive negotiations taking place between the parties. Also by email received on 16 February 2007 the Director General advised the Commission it did not object to the revocation of the order as opposed to the variation of the order proposed by the respondent on the basis that the parties were bargaining in good faith and the respondent had indicated to the Director General that no industrial action was foreshadowed or imminent.
(vi) The Commissioner then said that having considered the respective positions of the parties and taking into account “equity and good conscience the Commission has formed the view that the Order should be revoked, which has the same effect as the Order being varied as proposed by the respondent …”. The Commissioner said that this was based on three dot points. These were in summary, substantial progress being made with respect to finalising industrial agreements for education assistants, cleaners and gardeners; the parties were close to finalising the industrial agreements and no further industrial action had taken place in the past month by the respondent and its members and none was foreshadowed.

4. The Statutory Framework
10 As has been set out, the Director General made an application for a conference pursuant to s44 of the Act. This was also the section under which Commissioner Harrison made the order on 1 December 2006. Section 44 of the Act is contained within Division 2C of Part II of the Act. Division 2C is headed “Holding of compulsory conferences”. Part II is headed “The Western Australian Industrial Relations Commission” and comprises ss8-80 of the Act.
11 Section 84A, to which reference has already been made, is contained in Part III of the Act which is headed “Enforcement of Act, awards, industrial agreements and orders”. This part is comprised by ss81-84A.
12 Section 93 of the Act, to which reference has also already been made, is contained within Part V of the Act which is headed “The Registrar and other officers of the Commission”. The other “officers of the Commission” are administrative officers as opposed to the members of the Commission.
13 Section 44 is headed “Compulsory conference”. Pursuant to s44(1) the Commission constituted by a Commissioner may summon any person to attend, at a time and place specified in the summons, at a conference before the Commission. As stated above in this instance a summons was issued by the Commission on the application of the Director General. Subsections 44(5a), (6), (6a) and (8), provide the Commission with an array of measures which can be utilised to try and resolve the subject matter of the conference. Orders may be made by the Commission under subsection 44(8) where at a s44 conference agreement is reached between the parties or any of them in relation to any industrial matter.
14 Section 44(6) and (6a) of the Act are in the following terms:-
“(6) The Commission may, at or in relation to a conference under this section, make such suggestions and give such directions as it considers appropriate and, without limiting the generality of the foregoing may — 
(a) direct the parties or any of them to confer with one another or with any other person and without a chairman or with the Registrar or a deputy registrar as chairman;
(b) direct that disclosure of any matter discussed at the conference be limited in such manner as the Commission may specify;
(ba) with respect to industrial matters, give such directions and make such orders as will in the opinion of the Commission — 
(i) prevent the deterioration of industrial relations in respect of the matter in question until conciliation or arbitration has resolved that matter;
(ii) enable conciliation or arbitration to resolve the matter in question; or
(iii) encourage the parties to exchange or divulge attitudes or information which in the opinion of the Commission would assist in the resolution of the matter in question;
(bb) with respect to industrial matters —
(i) give any direction or make any order or declaration which the Commission is otherwise authorised to give or make under this Act; and
(ii) without limiting paragraph (ba) or subparagraph (i), in the case of a claim of harsh, oppressive or unfair dismissal of an employee, make any interim order the Commission thinks appropriate in the circumstances pending resolution of the claim;
and
(c) exercise such of the powers of the Commission referred to in section 27(1) as the Commission considers appropriate.
(6a) An order made under subsection (6)(ba) or (bb) — 
(a) binds only the parties to the relevant conference under this section; and
(b) may vary the operation of an existing award or industrial agreement in respect of the parties referred to in paragraph (a).”

15 The order made by Commissioner Harrison on 1 December 2006 was stated to be made pursuant to subsections 44(6)(ba)(i) and (ii) and subsection 44(6)(bb)(i).
16 The Act clearly envisages that orders made by the Commission must be followed and provides a mechanism for their enforcement. This is as stated contained in Part III of the Act. Pursuant to ss81-81F of the Act, Industrial Magistrate’s Courts are established and have as one of their functions the enforcement of certain orders made by the Commission. Section 84 provides for appeals to the Full Bench from decisions of the Industrial Magistrate’s Court.
17 Pursuant to s82(1) of the Act, the Full Bench has jurisdiction to hear and determine any application made to it under s84A. Pursuant to s82(2) an application for the enforcement of a provision of the Act or a direction, order or declaration made or given under s32, s44(6) or s66 shall not be made otherwise than to the Full Bench. Section 82A provides, relevantly, that an application under s84A shall be made within 6 years from the time of the alleged contravention or failure to comply. Section 82(3) provides that subsection 82(2) does not apply to the enforcement of a civil penalty provision or a provision of the Act, if a contravention of or failure to comply with the provision constitutes an offence against the Act. The jurisdiction to hear proceedings for offences and civil penalty provisions lies with the Industrial Magistrate’s Court pursuant to ss83D and 83E of the Act.
18 Section 84A in full is as follows:-
“84A. Proceedings before Full Bench for enforcement of this Act
(1) Subject to this section, if a person contravenes or fails to comply with — 
(a) any provision of this Act (other than section 42B(1), 44(3), 51S or 74) or an order or direction made or given under section 66 — 
(i) the Minister;
(ii) the Registrar or a deputy registrar;
(iii) an industrial inspector; or
(iv) any organisation, association or employer with a sufficient interest in the matter;
or
(b) section 44(3) or a direction, order or declaration given or made under section 32 or 44, the Registrar or a deputy registrar at the direction of the Commission,
may make application in the prescribed manner to the Full Bench for the enforcement of that provision, order, direction, declaration or section.
[(2) repealed]
(3) Subsection (1) does not apply to a contravention of or a failure to comply with —
(a) a civil penalty provision; or
(b) a provision of this Act if the contravention or failure constitutes an offence against this Act.
(4) In dealing with an application under subsection (1) the Full Bench — 
(a) shall have regard to the seriousness of the contravention or failure to comply, any undertakings that may be given as to future conduct, and any mitigating circumstances; and
(b) before proceeding to a hearing of the application, shall invite the parties to the application to confer with it, unless in the opinion of the Full Bench such a conference would be unavailing, with a view to an amicable resolution of the matter to which the application relates.
(5) On the hearing of an application under subsection (1) the Full Bench may — 
(a) if the contravention or failure to comply is proved — 
(i) accept any undertaking given; or
(ii) by order, issue a caution or impose such penalty as it considers just but not exceeding $2 000 in the case of an employer, organisation, or association and $500 in any other case; or
(iii) direct the Registrar or a deputy registrar to issue a summons under section 73(1);
or
(b) by order, dismiss the application,
and subject to subsection (6), in any case with or without costs, but in no case shall any costs be given against the Minister, the Registrar, a deputy registrar, or an industrial inspector.
(6) In proceedings under this section costs shall not be given to any party to the proceedings for the services of any legal practitioner or agent of that party unless, in the opinion of the Full Bench, the proceedings have been frivolously or vexatiously instituted or defended, as the case requires, by the other party.
(7) Where the Full Bench, by an order made under this section, imposes a penalty or costs it shall state in the order the name of the person liable to pay the penalty or costs and the name of the person to whom the penalty or costs are payable.
(8) The standard of proof to be applied by the Full Bench in proceedings under this section shall be the standard observed in civil proceedings.”

19 As set out earlier, s84A is the last section of Part III of the Act.
20 The relevant features of s84A are:-
(a) It sets out the people or entities who may make an application for enforcement.
(b) Some enforcement applications, including the present application to enforce an order made under s44, may only be made by the Registrar or a deputy registrar “at the direction of the Commission”. (For ease of reference I will, except in quotations, refer in the balance of these to only the Registrar as being the potential recipient of the direction by the Commission).
(c) Ordinarily in dealing with an enforcement application the Full Bench shall confer with the parties with a view to an amicable resolution of the matter to which the application relates.
(d) The Full Bench may dismiss the application or, if the contravention or failure to comply is proved, exercise one of the discretionary powers set out in s84A(5).
(e) In dealing with the application the Full Bench shall have regard to the matters set out in s84A(4) of the Act.
(f) The standard of proof to be applied in proceedings under the section is the civil standard.

21 Procedurally the method of enforcement is that, relevantly, if a person allegedly contravenes or fails to comply with an order made under s44 the Registrar at the direction of the Commission may make application in the prescribed manner to the Full Bench for the enforcement of that order. The “prescribed manner” is contained in regulation 60.
22 Regulation 60(1) to (3) of the regulations are as follows:-
“60. Proceedings before the Full Bench for enforcement of the Act
(1) An application for enforcement under section 84A of the Act must be in the form of a notice of application in Form 12.
(2) Where the application is made by the Registrar to enforce a direction, order or declaration made under section 32 of the Act, or in respect of a contravention or failure to comply with section 44(3) of the Act, a copy of the direction given to the Registrar is to be attached to the summons.
(3) A direction to the Registrar or Deputy Registrar referred to in sections 84A(1)(b) and 93(9) of the Act is to be given by the Commission in writing.”

23 It can be seen that regulation 60(3) contemplates a direction being issued under s84A(1)(b) as well as s93(9) of the Act.
24 As stated earlier, s93 is within Part V of the Act. The heading to s93 is “Appointment and duties of officers”. The section provides for the appointment of the Registrar and other administrative officers of the Commission. Section 93(8) provides for the Commission to “direct the Registrar or any other officer of the Commission to make such investigations and reports in relation to any matter within the jurisdiction of the Commission as it deems necessary”.
25 Section 93(9) of the Act is in the following terms:-
“(9) Subject to this Act, the Commission may direct the Registrar or a deputy registrar to make an application under section 77, 83, 83B, 83E or 84A or to institute proceedings for an offence against this Act.”

26 Section 93(9) was not, in the direction of Commissioner Harrison dated 19 December 2006, set out as the basis for the making of the direction; s84A(1)(b) was. Neither was it relied on for this purpose by Mr Bathurst, at least until the Chief Commissioner pointed the subsection out to him during the course of the hearing. Apart from s84A(1)(b) the other sections listed in s93(9) do not say anything about directions by a Commissioner. Section 77 is about proceedings for a breach of duty by an official of an organisation; s83 is about the enforcement of industrial instruments; s83B is about the enforcement of an unfair dismissal order; and s83E is about the contravention of a civil penalty provision.

5. The Registrar’s Submissions
27 I have already summarised in general terms the Registrar’s submissions.
28 At the hearing of the application, Mr Bathurst emphasised, as one would expect, that the Registrar wanted to follow “what is the legally correct approach”. (T17). Mr Bathurst then agreed with the proposition I put to him that the “notice of application for leave to discontinue states the reason, which is the revocation”. (T18). Mr Bathurst also agreed with the proposition that the Full Bench, to accede to the application for leave to discontinue, would need to accept that the power to revoke existed. (T18). Mr Bathurst confirmed the Registrar’s position was that if “the power to [revoke] exists, then my client wishes to withdraw. If it doesn’t, then my client wishes to proceed”. (T18).
29 The Registrar’s written submissions at paragraphs [6]-[8], were as follows:-
“6. Section 48 of the Interpretation Act 1984 provides:
“Where a written law confers a power or imposes a duty, the power may be exercised and the duty shall be performed from time to time as occasion requires.”
7. A power, such as the power of direction under s84A(1)(b) of the Industrial Relations Act, which is exercisable from time to time may be exercised so as to add to, subtract from or reverse the result of a previous exercise of the power. The donee of such a power is never functus officio.
Lawrie v Lees (1881) 7 App Cas 19 at 29;
Parkes Rural Distributions Pty Ltd v Glasson (1986) 7 NSWLR 332 at 335-6.
8. Accordingly, Commissioner Harrison was empowered to revoke her direction of 19 December 2006.”

30 Prior to the hearing, my associate on my instructions sent an email to bring to the attention of the parties the decision of the Court of Appeal of Victoria in Kabourakis v The Medical Practitioners Board of Victoria [2006] VSCA 301. This placed some doubt upon the reasoning of Lawrie v Lees (1881) 7 App Cas 19 and Parkes Rural Distributions Pty Ltd v Glasson (1986) 7 NSWLR 332, as applicable to the Victorian equivalent to s48 of the IAWA.
31 Accordingly, at the hearing, Mr Bathurst relied upon other authorities. He submitted that these authorities supported the submission made in the written submissions about the power to revoke. None of these authorities involved s48 of the IAWA or the power to issue a direction of the relevant type. They did however involve decisions of other jurisdictions where there is a similar section in an interpretation act to that of s48. I will set out in a moment the authorities relied upon. The authorities relied upon are not all of the relevant authorities which have touched upon the issues relevant to the mooted power of revocation in the present application. In making this comment I am not being critical of Mr Bathurst. I will refer later to the other authorities.
32 Mr Bathurst acknowledged and made submissions about s3 of the IAWA. This is as follows:-
“3. Application
(1) The provisions of this Act apply to every written law, whether the law was enacted, passed, made, or issued before or after the commencement of this Act, unless in relation to a particular written law — 
(a) express provision is made to the contrary;
(b) in the case of an Act, the intent and object of the Act or something in the subject or context of the Act is inconsistent with such application; or
(c) in the case of subsidiary legislation, the intent and object of the Act under which that subsidiary legislation is made is inconsistent with such application.
(2) The provisions of this Act apply to this Act as they apply to an Act passed after this Act commences.
(3) A reference in section 17, 25, 43(6), 45, 50 or 64 to an Act, written law, enactment, or subsidiary legislation passed or made after the commencement of this Act shall be construed so as not to include any enactment which continues or directly amends, but does not repeal entirely, the text of an existing written law.”

33 The other authorities relied on by the Registrar were Australian Broadcasting Tribunal v Bond Corporation Holdings Ltd and Others (1989) 86 ALR 424, a decision of the Full Federal Court; Comeau’s Sea Foods Ltd v The Queen in right of Canada (1997) 142 DLR (4th) 193, a decision of the Full Court of the Supreme Court of Canada; Pyrenees Shire Council v Day and Another (1998) 192 CLR 330 (limited to an observation by Gummow J at [146]); Gorman v Health Care Complaints Commission and Medical Board of NSW [2000] NSWSC 1228; North Australian Aboriginal Legal Aid Service Inc v Bradley and Another (2002) 192 ALR 701, a decision of the Full Federal Court; and Kabourakis. Mr Bathurst made thorough submissions about each of these authorities.
34 It is appropriate to set out quite fully the submissions made on behalf of the Registrar at the hearing to do justice to them. Also, to fully comprehend and later assess the submissions I will, at times, refer to the facts and reasons of the authorities cited in greater detail than in Mr Bathurst’s submissions. Following this I will set out the questions or issues which, with respect, troubled Mr Bathurst at the hearing.
35 The submissions made at the hearing on behalf of the Registrar were:-
(a) The general presumption, because of s48 of the IAWA, was that when a person is given a statutory power, such as the power to direct enforcement action to occur, that power can be exercised more than once and the person who holds the power can reverse a previous exercise of the power. (T3).
(b) To the extent that an ability to reverse or revoke the exercise of the power reads words into s48 of the IAWA, it is supported by the authorities relied upon. (T3).
(c) Lawrie v Lees involved the construction of s3 of Sir H Meux’s Settled Estate Act 1863. This section was about the Lord Chancellor being entitled to take certain actions on behalf of Sir Henry Meux “from time to time, so long as the said Sir Henry Meux and his estate shall continue to be subject to the jurisdiction in lunacy …”. Reference was made to the reasons of Lord Penzance at page 29. His Lordship there referred to the relevant issue, which was the Lord Chancellor taking action purportedly under the relevant Act with respect to the business of a brewery. Lord Penzance said at that page “… the words ‘from time to time’ are words which are constantly introduced where it is intended to protect a person who is empowered to act from the risk of having completely discharged his duty when he has once acted, and therefore not being able to act again in the same direction. The meaning of the words ‘from time to time’ is that after he has made one order he may make a fresh order to add something to it, or take something from it, or reverse it altogether … [‘the words should not be narrowed’] by any construction which would throw impediments in the way of carrying on the business, whereas the object of the Act was to facilitate it”.
(d) (i) Lawrie v Lees was adopted and applied by the New South Wales Court of Appeal in Parkes Rural Distributions Pty Ltd v Glasson. That decision involved s8(3) of the Petroleum Products Subsidy Act 1965 (NSW) (the PPSA) which gave an authorised officer who was satisfied that an amount paid under the PPSA had not been payable to a person or exceeded the amount which was payable to a person, the authority to issue a certificate in writing that the amount paid or the amount of the excess was repayable by that person to the State. The Court of Appeal was required to consider the legal consequences of the issuing of two successive certificates under s8(3) of the PPSA. (See page 335). The first, issued on 2 February 1982, certified that the amount of $152,317.70 was repayable by the plaintiff to the State. The second, dated 13 November 1984, issued by a different authorised officer certified the amount of $134,065.27 was repayable by the plaintiff to the State.
(ii) It was argued that authorised officers did not have the power to enable this to be done. Glass JA did not accept this, given the then s32 of the Interpretation Act 1897 (NSW) which was the equivalent of s48 of the IAWA. Glass JA said the section elaborated upon the power to issue certificates granted by s8(3) of the PPSA and permitted “its exercise from time to time. It has been held that a power exercisable from time to time may be so exercised as to add to, subtract from or reverse the result of the previous exercise ...”. (Page 335). Lawrie v Lees was then cited and Glass JA at 336 said that “the donee of such a power is never functus officio. Accordingly the existence of the first certificate does not render void a second certificate issued in lieu of it”. (Page 336). (T4/5).
(e) Given the presence of s3 of the IAWA, the question was one of statutory interpretation. The starting point was a presumption that s48 applies, but you must look at the statute you are dealing with to see whether there is something in the context of that Act that either expressly excludes it or by implication from the statutory scheme excludes it. It was submitted that if that approach was not adopted there was a “ridiculous conclusion” that a power could just be exercised over and over again. (T5).
(f) It was accepted that the power to issue the direction by the Commissioner under s84A(1)(b) of the Act was an administrative power and action. (T6, T17).
(g) In Australian Broadcasting Tribunal v Bond Corporation Holdings Ltd and Others the respondent sought extensions of time to dispose of interests which they held in breach of the then cross-media restrictions in the Broadcasting Act 1942 (Cth) (the Broadcasting Act). The Australian Broadcasting Tribunal granted a shorter extension than was sought and refused a second request for an extension on the basis that the Broadcasting Act enabled one extension only. At page 430, Burchett J relied on s33 of the Acts Interpretation Act 1901 (Cth) (the equivalent to s48 of the IAWA) and said it “may enable” the relevant power to be exercised from time to time as occasion requires. Parkes Rural Distributions Pty Ltd v Glasson was cited and contrasted with Scarfe v FCT (1920) 28 CLR 271 where his Honour said a contrary intention appeared from the terms of the legislation. His Honour said it was difficult to see a contrary intention in the Broadcasting Act for the relevant power, given that the inherent complexity of the transactions involved and the difficulty of fixing a period for them in advance were the major reasons for conferring the discretion upon the tribunal. The other members of the court agreed with the reasons of Burchett J.
(h) (i) The reasoning in Lawrie v Lees was also applied by the Supreme Court in Canada in Comeau’s Sea Foods. This decision involved the powers of the relevant Minister under s7 of the Fisheries Act, RSC, 1985. Under s7 the Minister in his absolute discretion could issue or authorise leases and licences for fisheries. By s9 the Minister could suspend or cancel a licence in certain circumstances. In this instance the Minister had given an assurance in September 1987 that the appellant would receive a licence. Three months later the Minister advised the appellant he had authorised the issue of four licences. Given this, the appellant incurred expenses in adapting a fishing vessel. In April 1988 the Minister announced the licences would not be issued. The Canadian Supreme Court held the Minister had the power to revoke the authorisation at any time prior to the issue of a licence, subject only to the requirements of natural justice.
(ii) Major J, who delivered the reasons for judgment of the court, at paragraph [41] page 202 quoted s31(3) of the Interpretation Act, RSC, 1985 which provided that where “a power is conferred or a duty imposed, the power may be exercised and the duty shall be performed from time to time as occasion requires”. Major J referred to the forerunner of that provision in the Interpretation Act 1889 (UK), 52 and 53 Vict, c63, s32(1). Major J said the sections:-
“… abolished the common law rule that a power conferred by statute was exhausted by a single exercise of the power (Halsbury’s Statutes of England and Wales, 4th ed. (London: Butterworths, 1995) (reissue), vol 41, “Statutes” at p991).”

(iii) Major J referred to the “classic definition” of the meaning of the phrase “from time to time” and quoted from the reasons of Lord Penzance in Lawrie v Lees at page 29. At paragraph [42], page 203, Major J referred to the observations in Administrative Law, Wade and Forsyth, Oxford Clarendon Press, 7th Edition 1994 at paragraph 26-62 which said that in applying this “interpretive rule”, one must distinguish between continuing powers and powers restricted to a single case. Major J quoted from part of what was contained in Wade which was read to the Full Bench by Mr Bathurst. Major J at [43] said the authorisation to issue the licence by the Minister did not confer upon the appellant an irrevocable legal right to a licence. Major J said until the licence was issued there was no licence and therefore no permission to do what was otherwise prohibited, which in this instance was to fish for lobster in the offshore. Major J said until the Minister issued the licence he possessed a continuing power to reconsider his earlier decision to authorise or issue the licence.
(iv) At paragraph [44], pages 203/204, Major J dismissed an argument that the Minister was functus officio once he had authorised the issuance of the licence. Major J quoted from the reasons of Denault J in CWC v Canada (Attorney General) [1989] 1 FC 643 (FCTD) at 652 where it was said that, “[i]n all cases where the authority to act is given by a statute or other instrument, it is a matter of interpretation whether the power may be exercised only once or more than once”.
(v) At paragraph [49], page 204, Major J said that it was only after a licence had been issued that the Fisheries Act imposed a limit upon the Minister’s discretion and that no such limits were imposed upon the Minister’s authorisation of a fishing licence. In the absence of any words or an indication of legislative intent to the contrary, none should be imposed. (From my research Comeau’s Sea Foods has not been overruled by a subsequent decision of the Supreme Court of Canada).
(vi) Mr Bathurst was critical of the paragraph quoted from Wade. Wade said the words of s12 of the Interpretation Act 1978 (UK) (the equivalent of s48 of the IAWA) to allow statutory powers and duties to be exercised or performed “from time to time as occasion requires” gives a misleading view.
(vii) Wade said a first category of case occurred where the power is one to decide questions affecting legal rights Wade said in those cases the courts are strongly inclined to hold that the decision, once validly made, is an irrevocable legal act and cannot be recalled or revised. Wade said the same arguments which require finality for the decisions of courts of law applied to the decisions of statutory tribunals, Ministers and other authorities.
(viii) Secondly there was a distinction between powers of a continuing character and those which once exercised are fully expended. Wade distinguished, for example, between a duty to maintain highways or a power to take land by compulsory purchase against a case where there needed to be a determination about the amount of compensation or to fix the pension of an employee. Wade argued there were reasons for imposing finality because citizens whose legal rights are determined administratively are entitled to know where they stand.
(ix) Wade said there was a third class of case where there was an inherent power to vary an order or power to entertain fresh proceedings and make a different decision. Mr Bathurst submitted the second category referred to by Wade was not helpful because it simply restates the problem. (I interpolate that the latest edition of Wade contains substantially the same commentary on this issue; see Administrative Law, HWR Wade and CF Forsyth, Ninth Edition, 2004, pages 229/30).
(i) Mr Bathurst referred to Pyrenees Shire Council and the reasons of Gummow J at paragraph [146], page 382, where reference was made to an argument that there were a number of statutes which provided the Shire with powers to take certain actions about a defective fireplace and chimney after a fire had occurred. Gummow J said the powers were of a continuing character and were exercisable from time to time as the occasion required. In a footnote there was cited the Interpretation of Legislation Act 1984 (Vic), s40, Lawrie v Lees and Comeau’s Sea Foods. At paragraph [168] Gummow J referred to, in the context of the Shire having a duty of care, its statutory powers exercisable from time to time to pursue the prevention of fire at the relevant fireplace and chimney. The other members of the High Court did not consider the meaning of “from time to time”.
(j) (i) Mr Bathurst then referred to Gorman. Mr Bathurst submitted this case involved a useful analogy for the construction of the Act. (T9). Gorman involved the powers of the Medical Board constituted under the Medical Practice Act 1992 (NSW). A complaint was made against Dr Gorman by the Commissioner of the Health Care Complaints Commission (HCCC). This was referred to the Professional Standards Committee (PSC) of the Medical Board. The Medical Practice Act conferred a duty on the Medical Board and the HCCC to refer a complaint to the Medical Tribunal if either, at any time, formed the opinion that the complaint if substantiated may provide grounds for the suspension or deregistration of a medical practitioner.
(ii) The issue before the Supreme Court was whether the Medical Board could refer a complaint to the Medical Tribunal, having previously decided to refer it to the PSC which had less power than the Tribunal. Mr Bathurst submitted the case was significant because the referral to the PSC had actually occurred although the PSC had not made a decision on whether there had been misconduct by the doctor. The PSC had however held three preliminary hearings about procedural matters.
(iii) O’Keefe J at paragraph [33] said there was nothing in the Medical Practice Act or the context or subject matter of the section prescribing the courses of action available to the Medical Board in respect of a complaint made to it which displaced the application of s48 of the Interpretation Act 1987 (NSW). This section of the Act was quoted and at paragraph [34] O’Keefe J, citing Lawrie v Lees and quoting Parkes Rural Distributions Pty Ltd v Glasson at 336, said that in “relation to a power that is exercisable from time to time it has been held that it may be so exercised as to add to, subtract from or reverse the result of the previous exercise”. His Honour concluded at paragraph [36] that the Medical Board had the power to refer the complaint to the Tribunal notwithstanding that it had previously referred the same complaint to the PSC.
(k) Mr Bathurst then referred to paragraphs [227]-[228] of the reasons of Drummond J in North Australian Aboriginal Legal Aid Service Inc v Bradley and Another. This involved the validity of the appointment of the Chief Magistrate of the Northern Territory. One issue was whether, for the appointment to be valid, there had to have been at the time of appointment a determination of his remuneration and allowances, as required by s4 and s6 of the Magistrates Act (NT). Section 6 provided that an appointed Magistrate shall be paid remuneration and allowances and hold office on the terms and conditions as the administrator (as defined) “from time to time, determines”. Drummond J dissented on the issue with respect to s6 of that Act. At paragraph [227] his Honour said that where the phrase “from time to time” is found in a provision conferring a power on a repository “the provision is well capable of being read as intended to ensure that the power of determination conferred by the provision will not be exhausted by its initial exercise”. His Honour quoted from Lawrie v Lees and Parkes Rural Distributions Pty Ltd v Glasson. His Honour said the reason for Interpretation Act provisions of the kind contained in s41(1) of the Interpretation Act (NT) was to ensure that a statute that confers power on a repository to do something will not generally be interpreted as being exhausted by its initial exercise, though that may be one interpretation the wording of the provision is capable of bearing.
(l) (i) Mr Bathurst then referred to Kabourakis. That case involved Dr Kabourakis, the Medical Practitioners Board of Victoria and the Medical Practice Act 1994 (Vic). Notification was given to the Medical Practitioners Board about the treatment by Dr Kabourakis of a patient who had died. The Board then gave notice to Dr Kabourakis of an informal hearing pursuant to s41 of the Medical Practice Act. At the informal hearing the panel found Dr Kabourakis had not engaged in unprofessional conduct. The person who had first notified the Board complained about the matter to the Ombudsman who recommended the Board reopen its investigation.
(ii) The Medical Board Panel, when it made its decision, did not have the advantage of a medical report of another doctor about the treatment by Dr Kabourakis of the patient. The Board then gave notice to Dr Kabourakis of a further hearing under s41. The doctor through his solicitors informed the Board it was “functus officio” and then sought declaratory relief from the Supreme Court. A trial judge dismissed the proceedings and Dr Kabourakis appealed against that order. The appeal was allowed.
(iii) The primary reasons were written by Nettle JA. His Honour’s reasons for allowing the appeal were agreed with by Warren CJ and Chernov JA who both also wrote short reasons of their own. At paragraph [40] of the reasons of Nettle JA he explained the thrust of the case of Dr Kabourakis before the Supreme Court. This was that the first informal hearing led to a final and binding finding or determination that he had not engaged in professional misconduct. It was submitted the decision could not be revisited in a second preliminary hearing or otherwise except on appeal or by review after jurisdictional error. Jurisdictional error had not however been alleged. It was submitted the Board could not revisit the determination of the first informal hearing on the basis that the panel at the first hearing did not have the opinion of the other doctor.
(iv) At first instance it was held that the Board did have the power within the Medical Practice Act to establish a second panel to undertake a second informal hearing and it could do so to correct a mistake, in accordance with the “principles” set out by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597. The power was said at first instance to be based upon the presence of s25(7) in the Medical Practice Act. Section 25 was quoted in paragraph [29] of the reasons of Nettle JA. That section set out the powers and duties of the Board with respect to the commencement of investigations. Section 25(7) provided the Board could of its own motion decide to conduct, with or without a preliminary investigation, variously stated hearings or reviews about a registered medical practitioner.
(v) Nettle JA at paragraph [42] also said the judge at first instance had made reference to s40 of the Interpretation of Legislation Act 1984 (the equivalent of s48 of the IAWA) and stated that although his Honour said his conclusion did not depend upon the operation of s40, he said it gave the Board an implied power to exercise and re-exercise its power under s25(7) in respect of a matter as many times as may be needed.
(vi) At paragraph [43] Nettle JA said that the judge had erred because the principles in Bhardwaj’s case did not apply. This was because Bhardwaj was decided on the basis that the Immigration Review Tribunal had committed a jurisdictional error, and so the Tribunal was able to make another decision with respect to the same application. Nettle JA quoted from the reasons for decision of members of the High Court in Bhardwaj who said the position would have been different if there was a case of non-jurisdictional error because such a decision remained final and binding until set aside on appeal or judicial review. Nettle JA at paragraph [46] said it was not contended the first panel had committed a jurisdictional error and that even if there was an error in the panel’s failure to consider the second doctor’s opinion it was an error about the panel’s finding of fact and did not concern the legality of the finding but merely its merits.
(vii) At paragraph [47] Nettle JA said this conclusion did not necessarily end the matter, because whether the error was jurisdictional or non-jurisdictional, the question of whether the decision may be reopened to correct an error turned on the meaning of the statute under which the decision was made. His Honour then said that unlike the judge at first instance he thought that the effect of the Medical Practice Act, properly understood, was that a finding of the panel was final and binding except on appeal or review.
(viii) At paragraph [48] his Honour said that an administrative decision has only such force and effect as is given to it by the law pursuant to which it is made. His Honour also referred to the “logic” and good administration of the need for finality, including people who were affected by decisions knowing where they stand. His Honour said the statutory scheme evinced an intention inconsistent with capacity for self correction of non-jurisdictional error.
(ix) To support this opinion his Honour cited and quoted from a number of authorities. The authorities were Re 56 Denton Road, Twickenham [1953] 1 Ch 51, Walter Construction Group Ltd v Fair Trading Administration Corporation [2004] NSWSC 158, Export Development Grants Board v EMI (Australia) Ltd (1985) 9 FCR 269, Firearm Distributors v Carson (2001) 2 Qd R 26 and Ping v Medical Board of Queensland (2004) 1 Qd R 282. Nettle JA also cited Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, but said that it was of little assistance. His Honour then separately referred to revenue cases.
(x) His Honour then considered the construction of Part 3 of the Medical Practice Act and concluded in paragraph [80] that there would be inconsistency and uncertainty if the Board had the power under s25(7) to revisit a finding of the panel. Accordingly once the powers of the Board under s39 of the Act had been invoked and resulted in a preliminary hearing making a finding, there was no power under s25(7) to refer the matter to a second hearing.
(xi) His Honour considered s40 of the Interpretation of Legislation Act. Nettle JA referred to the trial judge’s reliance upon Parkes Rural Distributions Pty Ltd v Glasson. Nettle JA said that on one view of the matter “Parkes suggests that an exercise of the power under s25(7) of the Act to refer a matter to a second hearing has the effect of reversing the effect of previous exercise of power under s39 and with it the results of the first hearing”. ([81]). Nettle JA did not accept this as nothing in Parkes suggested “the power to exercise a statutory power from time to time imports a power to rescind and replace previous exercises of a different statutory power”. ([82]).
(xii) At paragraph [83] Nettle JA said he doubted some of the reasoning in Parkes. His Honour referred to the reasons for judgment of Glass JA and the support drawn from Lawrie v Lees. At paragraph [84] Nettle JA referred to the context of the decision of Lawrie v Lees, which his Honour described as the powers of the Lord Chancellor under s3 of the relevant Act to make orders from time to time for “the purposes of administering the affairs of the partnership of which Sir Henry Meux was a member before he became a lunatic. With respect, it is drawing a long bow to conclude that, because the Lord Chancellor’s power to make orders from time to time for the purposes of the administration of a lunatic’s estate imported power to add to vary or revoke a previous order, the effect of s32 of the Interpretation Act was to enable to the repository of the power to issue certificates under a provision like s8(3) of the Petroleum Products Subsidy Act to revoke and replace an issued certificate”. Nettle JA said the decisions he cited earlier suggested the contrary. (Although I note here that Nettle JA did not consider whether or to what extent any equivalent to s48 of the IAWA was cited or considered in these authorities).
(xiii) At paragraph [86] Nettle JA said that in any event s40 of the Interpretation of Legislation Act would only enable the Board to exercise from time to time the power conferred by s25(7). It did not provide the Board with power to annihilate the effects of a finding made by a panel in the determination of a hearing.
(m) Mr Bathurst submitted about Kabourakis that:-
(i) Section 48 of the IAWA or the equivalent Victorian section did not support a rehearing of a decided matter one year after it has been heard. Accordingly the conclusion reached by the Court of Appeal in Kabourakis was not surprising.
(ii) Nettle JA had missed an important point of Lawrie v Lees which was that the observations made about the expression “from time to time” were not context specific. There was no reason to read down the breadth of the equivalent of s48 of the Interpretation of Legislation Act to reach the conclusion that the facts and legislation in Kabourakis could not lead to a conclusion that a second investigation could occur.
(iii) With respect to the other authorities Nettle JA cited, Mr Bathurst said he had insufficient time to look through all of them. (I make the point however that Mr Bathurst did not seek the opportunity to provide supplementary written or oral submissions). Mr Bathurst submitted that Nettle JA did not refer to the other authorities which he had gone through which supported “the Parkes approach”. With respect to Bhardwaj, it was a different type of case because it did not involve applying a “section 48 type power”, as there had been a jurisdictional error, so there had been no exercise of the power.
(n) On the basis of the submissions he made about the relevant principles and authorities, Mr Bathurst submitted, with respect to directions under s84A(1)(b) or s93(9) of the Act that:-
(i) Section 48 of the IAWA applied unless it was displaced.
(ii) The power to direct the Registrar was solely the power of a Commissioner which was suggestive that the process was to be under the control of the relevant Commissioner.
(iii) In exercising their powers Commissioners are to try to promote the objects of the Act including in s6(a) (promoting goodwill in industry) and s6(b) (encouraging and providing means for conciliation with a view to amicable agreement).
(iv) The power to commence enforcement proceedings is just one tool at the disposal of the Commissioner in dealing with industrial matters and if for whatever reason the Commissioner in question feels it is no longer needed there is nothing in the Act to indicate the process cannot be stopped before it reaches finality. The Registrar submitted however that the Act would not allow the Commissioner to revoke a direction after the Full Bench had determined the substantive application.
(v) With respect to the authorities cited, the present case was most analogous to Gorman.
(vi) Section 48 of the IAWA displaced the rule of functus officio; and there was nothing within the Act to indicate s48 should not apply.
(viii) The direction given to the Registrar was not a final and binding decision because s48 of the IAWA in effect says it can be exercised from time to time which includes a capacity to reverse the decision or change the mind.

36 Issues raised at the hearing which, with respect, Mr Bathurst had difficulty in providing an adequate answer to were:-
(a) The extent to which a Commissioner could change their mind as to the issuing and revocation of the relevant direction. Mr Bathurst was asked whether if his submission about revocation was correct, the Commissioner could on a daily basis change her mind and issue and revoke the direction. Mr Bathurst submitted that there would come a point where there would be an abuse of process. As to whether there could be an abuse of process if the Commissioner was simply exercising a power that she has, Mr Bathurst submitted that the issue would come down to what the statute in question (in this instance the Act as affected by the Interpretation Act) allowed to occur. (T5).
(b) At what point in time was it open for the Commission to revoke her direction? It was submitted that if the Full Bench had made a decision, revocation could not occur, but there was nothing within the Act which showed the Commissioner who had the discretion to act or not act, by issuing a direction, should not be able to keep control of that process, at least until it had reached finality. Mr Bathurst was asked what the position would be if the matter had been heard by the Full Bench and they had reserved on a decision on a substantive application. Mr Bathurst submitted that he/we “don’t have to answer that very difficult question in this case”. (T14). It was put to Mr Bathurst that the Full Bench might need to do so to test the principle. Mr Bathurst submitted it was a difficult question and there was no easy answer to it. It was also submitted there were “shades of grey” and “ultimately we are searching for a legislative intent and I think it’s not giving away any State secrets when I say, really, there’s nothing very clear within the Act one way or the other on this”. (T14).
(c) Again, with respect to whether there was some terminus as to when a Commissioner could or could not change their mind and revoke or reissue a direction it was submitted that when things were “taken to extremes they started to fall apart” and there was the “hope” that Commissioners would not be “arbitrarily chopping and changing their mind every five minutes”, although there would be “an argument eventually that if things kept moving back and forth capriciously that either by appeal to the Full Bench or perhaps even through prerogative relief that you’d have to say that enough is enough and this just can’t continue”. (T15).
(d) Later it was submitted by Mr Bathurst that the problem of a Commissioner regularly changing their mind on issuing and revoking a direction was that the correct interpretation of the power to direct is that it is a power that can be exercised and the mind can be changed if there is a “reasonableness element” to it and that it is not one that can be changed for “arbitrary or different reasons”. (T16).

37 In my opinion the above demonstrates there was some shift in position by Mr Bathurst on the more difficult issues. I will later consider the effect of these questions and issues on whether the power to revoke exists.
6. The Respondent’s Submissions
38 As set out earlier, the respondent in its written submissions did not do other than adopt the submissions made in writing by the Registrar about the power to revoke a direction. At the hearing of the application to discontinue, the respondent was represented by Mr Schapper. In commencing his submissions, Mr Schapper said that “whilst these various questions that have been the subject of discussion this morning are doubtless interesting to lawyers, they are not of any interest at all to my client [and involve] a very considerable expense that it does not wish to incur. It is all too unfortunate that the legal system … puts parties to expense that they do not want to incur by reason of entanglement within itself in a certain narcissistic approach to its own task. Now, to some extent of course, that’s inevitable and I can see that the answer to my client’s concerns would be, well, you know, if there’s no power for the Registrar to discontinue the application, these things have to be grappled with. But the fact is that the current proceedings before the Commission are proceedings, it seems to us that the applicant doesn’t wish to continue and my client doesn’t wish to see continued and, therefore, whilst one might allow some short period to discuss the manner in which the thing might be put to an end, to have incurred now some hours of argument and some now considerable expense to my client is, to say the least, unfortunate”. (T18). I will refer later to the submission in this passage about the attitude of the Registrar to the continuation of the substantive proceedings. In my opinion however the reference to the “narcissistic approach” of the legal system to its task and entanglement within itself was unduly discourteous. The issue before the Full Bench arose out of the basis of the application to discontinue and had to be determined by it in the proper performance of its duties. This is not done to satisfy any narcissistic desire for undue reflection or legal navel gazing. Whilst it might be assumed that these submissions were, given Mr Schapper’s duties to the court and to his client, made on the express or implied instructions he held, counsel must not simply be the mouthpiece for the views of their clients if to do so they transgress the bounds of reasonable professional conduct. In saying this I take into account what might be regarded as the robust paradigm of industrial relations, that the Full Bench should not be unduly sensitive and that counsel must be given leeway to make expansive, novel or brave submissions in the circumstances of a particular case. But it remains that the Full Bench should be accorded due courtesy.
39 Later, during Mr Schapper’s submissions about an issue I was discussing with him he said that there might be “some abstract theoretical jurisprudential difficulty with that … [but from] … my client’s point of view, which is interested in getting on with the business of representing interests of workers, there is none”. (T22). I then put to Mr Schapper, which he accepted, that the Act could not be sidestepped. I then said: “if we can’t support the argument on the basis of what Mr Bathurst puts and what you put, we don’t have some pub rules sort of discretion to say, well, this isn’t in the best interests of the Union and the representation of its workers, so we will allow the application”. (T23). Mr Schapper then said that he would continue with his submissions.
40 The submission made about the disinterest of the respondent in participating in the debate and its desire to represent workers and not be involved in matters of jurisprudential difficulty may express their position but is not relevant to the task of the Full Bench. The substantive application is serious and carries a possible penalty. The Full Bench can only decide the present application on the basis of legal principle. As indicated in my response to Mr Schapper’s submissions in the second quoted passage, the Full Bench cannot do what the respondent or any other party before it in this or any other matter thinks is best on the basis of some sort of “pub rules”.
41 In this context it is sometimes submitted that s26(1)(a) of the Act provides the Commission with some discretionary flexibility in exercising its jurisdiction. Section 26(1)(a) of the Act provides:-
“(1) In the exercise of its jurisdiction under this Act the Commission — 
(a) shall act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms;”

42 Section 26(1)(a) does not however assist in determining the question before the Full Bench. The subsection does not provide license for a Commissioner or the Full Bench to ignore limits upon the exercise of the powers or jurisdiction of the Commission; or to avoid or mould legal principles to a conclusion thought desirable about the Commission’s jurisdiction.
43 In the article, Procedure and evidence in ‘court substitute’ tribunals, Professor Neil Rees, Australian Bar Review, Volume 28, No. 1, page 41, there is a traced history of sections like s26(1)(a) and the present understanding of their meaning by Australian courts. At page 83, Professor Rees concludes:-
“In earlier times ‘equity and good conscience’ clauses were intended and interpreted to mean that the recipient of the power had some latitude to depart from the rules of substantive law which would have governed proceedings in the courts. They seem to permit ‘a sort of rough and ready local justice to litigants in small cases’. That view of these powers is no longer sustainable.”

44 Earlier at page 63, Professor Rees referred to Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 and the joint judgment of Gleeson CJ and Handley JA. Professor Rees cited the observation by their Honours at page 29 that “[t]he words “equity, good conscience and the substantial merits of the case” are not terms of art and have no fixed legal meaning independent of the statutory context in which they are found”. However, Professor Rees also referred to the conclusion by their Honours that such a clause did not give the New South Wales Equal Opportunity Tribunal license to depart from “the obligation to apply rules of law in arriving at its decisions”. (Page 29). Professor Rees also referred to the rationale for this conclusion by their Honours which was that if it permitted the Tribunal to do anything other than apply the general law “there would have been no point in conferring a right of appeal to the Supreme Court on a question of law”. (29). Professor Rees said that this rationale was compelling.
45 On this issue it is noted that under s90(1) of the Act, an appeal lies to the Industrial Appeal Court from any decision of the President, the Full Bench or the Commission in Court Session, on, amongst other things, the ground that the decision was erroneous in law in that there had been an error in the construction or interpretation of any act, regulation, award, industrial agreement or order in the course of making the decision appealed against.
46 At pages 64/65 Professor Rees referred to the reasons for decision of the High Court in Sue v Hill and Another (1999) 199 CLR 462 where in a joint judgment, Gleeson CJ, Gummow and Hayne JJ at paragraph [42] said that provisions of this type “do not exonerate the court from the application of substantive rules of law …”. Professor Rees also referred to the similar observations by Gaudron J at paragraph [149].
47 Other decisions referred to by Professor Rees were Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 and NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 223 ALR 171. In the latter, Gummow J at [34] referred to s420 of the Migration Act which is in not dissimilar terms to s26(1)(a) of the Act. By reference to the reasons of the court in Eshetu, his Honour at [35] said that the section “does not delimit boundaries of jurisdiction”.
48 In summary, s26(1)(a) does not give license to either a Commissioner or the Full Bench to do other than act according to law and construe the limits of the jurisdiction or the powers of the Commission other than on the basis of legal principle.
49 The submissions of Mr Schapper which were of greater force were in summary:-
(a) Support for the submissions of the Registrar about ss48 and 3 of the IAWA.
(b) That “ultimately the whole matter comes down to a question of statutory interpretation …”. (T18).
(c) In other paragraphs of s84A, private individuals were entitled to bring enforcement applications. It was submitted that such private people could withdraw an enforcement application and their decision to withdraw the application would not be reviewable. It was therefore questioned, rhetorically, why would a decision of a public official to do precisely the same thing be reviewable. As the proceedings for enforcement were civil they could be discontinued at will either by a public official instituting them or the private individual instituting them. If the Registrar sought, as being an appropriate way of resolving enforcement proceedings to simply withdraw them it could not be that it was not open to do that because they were brought at the direction of Commissioner Harrison. (T18-20).
(d) It was submitted that s93(9) of the Act did not add anything to s84A(1)(b) of the Act. Mr Schapper submitted that even without s93(9) of the Act, s84A(1)(b), to be given effect to, would have to include an implied power for the Commission to give the direction mentioned in the paragraph. (T20).
(e) For the proceedings to be prosecuted, the continuing existence of the direction must always underlie the proceedings in order for them to be valid. It was submitted that if this was so then it must necessarily be the case that the direction could be revoked because otherwise the Registrar must necessarily prosecute the proceedings to a conclusion, which was inconsistent with the nature of s84A, given that it is simply talking about who can bring proceedings. (T23).
(f) It was then submitted that if the Commission purports to withdraw a direction but cannot do so because of a lack of power, the Registrar was then in the position of having to prosecute proceedings when he knows that the actuating force for the commencement of the proceedings has said “don’t do it”. It was questioned rhetorically “how is he to amicably resolve the matter to which the application relates … when he’s really only in a representative capacity when the Commission itself can hardly be an applicant. The Registrar is there at direction, almost an agency type relationship and the principal, being the Commissioner doesn’t want [him] to be there …”. (T23).
(g) It was generally submitted that there was nothing in the Act which was inconsistent with the notion that the power to direct also contains a power to revoke whether it be by the application of s48 of the IAWA or independently of that Act simply by implication arising out of the nature of s84A itself, being about the commencement of proceedings.
(h) The enforcement of an order under s44 “may impact upon and be an element in the conduct of industrial relations between the parties”. It was submitted that “if, at some point, it is apposite to enforce an order, but subsequently becomes inapposite to do so, why wouldn’t it be entirely consistent with the nature of the Act, the scheme of the Act, to say, well, you can make a direction that you commence proceedings and you can make a direction that those proceedings cease or be withdrawn?” (T24).

50 Before considering the submissions of the parties, and as a means to partly address them, I will next review authorities in addition to those cited by the Registrar.
51 I will do so in the following groups:-
(a) Authorities Arising from the Registrar’s Submissions.
(b) Other High Court and Western Australian Authorities.
(c) Authorities Cited in Kabourakis.
(d) Other Federal Court Authorities.
(e) Other Supreme Court of New South Wales Authorities.

7. Authorities Arising from the Registrar’s Submissions
(a) North Australian Aboriginal Legal Aid Service Inc v Bradley and Another in the High Court.
(i) Although not referred to by Mr Bathurst, there was an unsuccessful appeal to the High Court against the decision of the Full Court; North Australian Aboriginal Legal Aid Service Inc v Bradley and Another (2004) 218 CLR 146. The appeal was dismissed unanimously. Gleeson CJ wrote separate reasons and there were joint reasons published by McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ. Gleeson CJ at paragraph [7] said that s6 of the Magistrates Act (NT) involved a power and a duty and was not expressed in terms that were permissive or obligatory. The Chief Justice said the section conferred on the administrator an authority to make a determination in respect of any appointee. The Chief Justice said the administrator was obliged to make at least one determination of the remuneration to be paid to a Chief Magistrate. The Chief Justice then referred to s41 of the Interpretation Act (NT) which provided that where an Act confers a power or imposes a duty, the power may be exercised and the duty shall be performed from time to time as the occasion requires. The Chief Justice said the administrator was entitled to make further determinations of such remuneration from time to time as the occasion requires, and there might be circumstances giving rise to an obligation to do so. At paragraph [11] the Chief Justice said the making of a two year determination did not exhaust either the power or the duty of the administrator under s6. His Honour said the section contemplated determinations from time to time as the occasion required. His Honour said when the two year period expired the administrator was obliged to make a fresh determination. This could have been the same as or different from the remuneration fixed for the two year period. The Chief Justice said it was not necessary to decide whether it could have been less.
(ii) In the joint reasons at paragraph [52], s6 was referred to and it was said it conferred upon a magistrate appointed the right to receive certain remuneration and allowances. Their Honours said the section did not in terms repose in the administrator the power or authority to make determinations. Their Honours then said that “consistently with a line of authority in this court, the provision should be construed as impliedly conferring on the administrator the statutory authority to make ‘from time to time’ the determinations of which s6 speaks. That power to make determinations necessarily carries a power of revocation”. The footnote following this sentence only cites the authority of In re Davis (1947) 75 CLR 409. In my opinion, as set out below, this case does not support a proposition this broad for all administrative decision-makers. Further, I do not take this observation in the joint reasons to be other than fact and legislation specific. This is because the sentence refers to “the administrator” and “the determination”.
(iii) At paragraph [53] their Honours said the phrase in s6 “from time to time” was to be determined having regard to s62A of the Interpretation Act (NT) which required a construction that promotes the purpose or object underlying the Act, whether the purpose or object is expressly stated in the Act or not, to a construction that does not promote the purpose or object. Their Honours concluded on this issue at paragraph [59] that as the Chief Magistrate had the benefit of the obligations which the legislation imposed upon the administrator to make a determination, pursuant to the implied authority reposed in him under s6, the Chief Magistrate when appointed had, contrary to the appellant’s submissions, rights which were secured.

(b) In Re Davis
(i) This involved a report by the Prothonotary to the Supreme Court of New South Wales about a barrister, who had prior to his admission by the Supreme Court, been guilty of an offence of breaking and entering. In the report it was said that Mr Davis did not mention the conviction in his application to the Barristers Admission Board, and nor was it brought to the attention of the Supreme Court before admission. After receiving the report, the Supreme Court ordered that Mr Davis be disbarred and his name removed from the roll of barristers. Mr Davis then appealed to the High Court. One of the grounds was that having been certified by the Barristers Admission Board as a fit and proper person to be admitted to the Bar, and having been admitted by order of the Full Court, the Court had no power to disbar Mr Davis and remove his name from the roll of barristers.
(ii) The argument was rejected and the High Court dismissed Mr Davis’ appeal. I have considered the reasons of the Court and in particular those pages cited in the footnote in North Australian Aboriginal Legal Aid Service Inc v Bradley and Another. The possible revocation of the exercise of an administrative power, generally, or from time to time did not really feature in the reasons of the Court. Their observations were specific to the facts of the case, the entitlement to revoke an approval of a candidate by the Board and the power of disbarring by the Court. (See for example Starke J at 419, Dixon J at 424 and McTiernan J at 427). Dixon J (Williams J agreeing) at 424 did say the Board’s “approval is a judicial or quasi-judicial determination and like every other ex-parte judicial determination may be recalled if it has been obtained by misrepresentation, non-disclosure or other invalidating means or is based even on misapprehension or error”. At page 425 his Honour said that there was no reason why the Court’s power of disbarring should not be exercised upon a ground that was antecedent to the admission of a barrister or the determination of the Board to approve him as a fit and proper person.
(iii) In my opinion the reasons of the High Court in In re Davis do not provide support for the proposition, in general terms, that an administrative power may be exercised and then revoked.

(c) Day v Hunkin (1938) 61 CLR 65
When asked if the High Court had considered the meaning of a section equivalent to that of s48 of the IAWA, Mr Bathurst referred the Full Bench to this authority, which was cited in the Federal Court decision in North Australian Aboriginal Legal Aid Service Inc v Bradley. However as submitted by Mr Bathurst although s37 of the Acts Interpretation Act 1915 (SA) (the equivalent to s48) was relied on in submissions, the court did not need to consider it for the determination of the appeal. The only explanation of the section was by Latham CJ at 73 who said: “Sec. 37 is not directed to anything more than the exclusion of the old rule that prima facie a power is exhausted when it has been exercised (Halsbury's Laws of England, 2nd ed., vol. 25, p. 567)”.

(d) Bhardwaj
In Bhardwaj, although s33(1) of the Acts Interpretation Act 1901 (Cth) was mentioned in argument, it did not feature significantly in the reasoning of the Court. Bhardwaj involved a situation where the Immigration Review Tribunal, after making a decision to reject an application to review a decision declining to grant a protection visa, realised that there was procedural unfairness in the making of the decision and then made a second decision granting the application. The Minister contended it was beyond power for the Tribunal to make the second decision. In the High Court, a majority upheld the validity of the second decision on the basis that, as the first decision was attended by jurisdictional error (because of the lack of procedural fairness) the Tribunal had not in law made a decision on the first occasion and so accordingly, had acted within the power to make the “second” decision. As a matter of law, this was the first decision made. Accordingly, the Court did not need to consider the scope of s33(1) of the Act. (See for example the reasons of Gaudron and Gummow JJ at [53] and Hayne J at [156].)

8. Other High Court and Western Australian Authorities
(a) Pfeiffer v Stevens (2001) 209 CLR 57
(i) The scope of s23(1) of the Acts Interpretation Act 1954 (Q) was considered by the High Court. This section provided that: “If an Act confers a function or power on a person or body, the function maybe performed, or the power may be exercised, as occasion requires.” It is not therefore identical to s48 of the IAWA because it does not contain the expression “from time to time”. Nevertheless, it is a broadly similar section and observations made by the members of the High Court about the section and its interaction with other legislation are of assistance. The factual situation was that an interim local law of a city council contained a provision that the law would expire 6 months after it commenced or at the end of a longer period gazetted by the Minister. The Minister purported to extend the law twice. Section 860 of the Local Government Act 1993 (Q) provided that a local law proposed under that section must include a sunset clause stating the law would expire 6 months after its commencement or at the end of a longer period gazetted by a Minister. A majority of the High Court (Gleeson CJ, McHugh and Hayne JJ; Gummow and Kirby JJ dissenting) said s860(2) authorised the Minister to extend the operation of an interim local law more than once.
(ii) At paragraph [25], Gleeson CJ and Hayne J described the purpose of an interpretative provision such a s23(1) as being to “permit economy of language”. Their Honours said that “it means that to employ the language of singularity does not indicate an intention to deny plurality. If an intention exists, it must be found elsewhere”. Their Honours decided that there was no contrary intention in the Local Government Act.
(iii) McHugh J at paragraph [56] said an “intention contrary to the Acts Interpretation Act may appear not only from the express terms or necessary implication of a legislative provision but from the general character of the legislation itself.”. His Honour cited authorities supporting this contention including the advice of the Privy Council in Blue Metal Industries Ltd v Dilley (1969) 117 CLR 651 at 656 where it was said that “in considering whether a contrary intention appears there need be no confinement of attention to any one particular section of an Act. It must be appropriate to consider the section in its setting in the legislation and furthermore to consider the substance and tenor of the legislation as a whole”. Additionally, McHugh J quoted from page 658 of Blue Metal Industries where it was said that: “The Interpretation Act is a drafting convenience. It is not to be expected that it would be used so as to change the character of legislation”. At [59], McHugh J concluded that to read the Act as giving the Minister the power to extend the sunset period more than once did not change the character of the legislation. His Honour said that any extension must be made in accordance with and for the purposes of the Act, but that giving the Minister the power to make two or more extensions promoted the rationale of the implied power of extension.
(iv) Although Gummow and Kirby JJ dissented, their Honours both made observations about s23 which are of relevance and not in my opinion undermined by the contrary conclusion of the majority. Gummow J at [79] said that to “determine the applicability of s23(1), it is necessary first to identify the content of the power in question. The provision by which the power is conferred may be so drawn as to contain its own temporal dimension which limits the occasions for the exercise of the power. Section 23(1) of the Interpretation Act can have no operation with respect to a power, the exercise of which is thus constrained”. Kirby J at [124] followed a similar approach. With respect to the issue of a contrary purpose, his Honour, like McHugh J and citing Blue Metal Industries said the rule of construction contained in s23(1) of the Acts Interpretation Act cannot “change the purport or character of the legislation”.

(b) In Re Her Honour Warden Richardson SM; Ex Parte Precious Metals Australia Ltd [2006] WASC 192
(i) In this decision, s48 of the IAWA was referred to by Blaxell J. There was an application for an order nisi for prerogative relief against a decision made by the warden of the Meekatharra Warden’s Court. The warden, having ruled certain objections were invalid, refused applications by the potential objector for extensions of the time limits set by the warden within which to object. Blaxell J had to consider whether there was an arguable case in support of the order nisi. The applicant for the order nisi contended s48 of the IAWA enabled the warden hearing an application for an exemption to extend the time for lodgement of objections.
(ii) At paragraph [39] Blaxell J set out the section and then said:-
“This provision is designed to overcome the functus officio rule, namely that a person exercising a statutory power exhausts that power once it is exercised for the first time. In this regard, Gummow J in Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193, 211, noted that:
"There was 'an inconvenient common law doctrine of somewhat uncertain extent to the effect that a power conferred by statute was exhausted by its first exercise': Halsbury's Laws of England (1st ed), Vol 27, p 131. However, s 33(1) of the Acts Interpretation Act 1901 (Cth) (which was modelled upon s 32(1) of the Interpretation Act 1889 (UK)) provides that where an Act confers a power or imposes a duty, then unless the contrary intention appears, the power may be exercised and the duty shall be performed 'from time to time as occasion requires'. But in any given case, a discretionary power reposed by statute in the decision maker may, upon a proper construction, be of such a character that it is not exercisable from time to time and it will be spent by the taking of the steps or the making of the statements or representations in question, treating them as a substantive exercise of the power. The result is that when the decision maker attempts to resile from his earlier position, he is prevented from doing so not from any doctrine of estoppel, but because his power to do so is spent and the proposed second decision would be ultra vires. The matter is one of interpretation of the statute conferring the particular power in issue."

(iii) Blaxell J then said that the relevant regulations required examination to see if they indicated any intention that the warden’s power to fix a time for lodgement of objections should be exercised once only. At [42] his Honour concluded that it was arguable that s48 of the IAWA applied. This was one of the reasons for granting the order nisi. The quotation of the passage in the reasons of Gummow J in Kurtovic has significance and so Kurtovic and other federal court authorities will be considered later.

9. Authorities cited in Kabourakis
(a) I have already set out these authorities and observed that Nettle JA in Kabourakis did not consider what those authorities may have had to say about the contents of a section corresponding to s48 of the IAWA. I have therefore considered the decisions cited for this purpose.
(b) There are no relevant observations in Re 56 Denton Road.
(c) Export Development Grants Board involved a determination of the amount of the respondent’s incentive grant entitlement for 1978/1979. When calculating the respondent’s entitlement for the 1980/1981 year, the Board, believing that the total of the earlier grant had been paid in error, reassessed the grant for the 1978/1979 year and reduced the respondent’s grant. It then deducted the overpayment of the grant from the respondent’s entitlement for 1980/1981. It was held by the Full Federal Court that what the Board purported to do was beyond power. The Full Court in their reasons at page 278 referred to s33(1) of the Acts Interpretation Act 1901 (Cth). Their Honours held however that the “structure of the Act” was inconsistent with the existence of a general power to reassess and therefore “a contrary intention appears in the Act”.
(d) Firearm Distributors involved s23 of the Acts Interpretation Act 1954 (Q) and s4 of the same Act which contained the relevant “contrary intention” section. It was a decision of Chesterman J of the Supreme Court of Queensland. The context was that the plaintiff had carried on the business of selling firearms and associated products on a wholesale basis. It resolved to stop trading following restrictions on the type of firearm that could be sold to the public. These restrictions followed the murders in Port Arthur, Tasmania. The Australasian Police Ministers’ Council decided that compensation should be payable to firearm dealers who suffered loss of business by reason of the restrictions. Amendments were made to the Weapons Act (Q) to permit compensation in accordance with regulations. An issue for consideration by the Court was whether a decision made by an official, who determined the amount of compensation, was unlawful because the same decision-maker had previously determined the amount of compensation to be a higher sum. It was submitted that the officer was functus officio after the first determination. Chesterman J quoted from the reasons of Gummow J in Kurtovic at page 211. At paragraph [33] Chesterman J said that the cases established “that where the power conferred by statute is to make a decision with respect to the award of financial recompense in specified circumstances the power is exercisable only once. The subject matter of the decision does not permit successive exercises of the power”. His Honour said that in such circumstances the statute conferring the power contained an “intention inimical to the operation” of s23(1) of the Interpretation Act. His Honour cited and discussed a number of authorities included Re 56 Denton Road and Export Development Grants Board. At paragraph [41], Chesterman J said a power of reconsideration or revocation was inconsistent with the requirement of the Weapons Act that a decision be made awarding a finite sum as compensation for loss. His Honour said the process required finality.
(e) Firearm Distributors was cited with approval by Moynihan J in Ping v Medical Board of Queensland [2004] 1 Qd R 282. His Honour held that s164(1) of the Health Practitioners (Professional Standards) Act 1999 (Q) required the Medical Board to decide or elect to conduct disciplinary proceedings against a registrant by way of correspondence or by hearing but did not empower it to abandon a chosen course of action. Proceeding by way of correspondence or hearing were both authorised courses of action for the Board. A resolution by the Board was made to proceed by way of correspondence and this was conveyed by letter to the applicant, the complainant and the Health Rights Commission. About two months later the Board purported to rescind the resolution to conduct the disciplinary proceedings by way of correspondence and proceed by way of hearing. Moynihan J cited Firearm Distributors and said the decision there reached “was because of the construction of the primary legislation that the judge gave effect to”. Moynihan J then said that a “similar situation arises here”. Moynihan J held the Board could not lawfully change its mind because having chosen one course it could not abandon it.
(f) The final authority cited by Nettle JA in paragraph [84] of Kabourakis is Walter Construction Group. The case involved s48 of the Interpretation Act 1987 (NSW), which provided that where an Act or instrument conferred or imposed a function on any person or body “the function may be exercised (or, in the case of a duty, shall be performed) from time to time as occasion requires”. At paragraph [40] Grove J said that he did not “construe that provision as vesting a power to make and unmake decisions infinitely”. His Honour said that “if power does not stretch to infinity, there must be in the circumstances of a particular case and ‘as occasion requires’ a terminus”. On the facts of the case, his Honour said that the terminus was reached by a particular communication by the relevant body. There was an unsuccessful appeal against the decision of Grove J in Walter Construction Group v Fair Trading Administration Corporation [2005] NSWCA 65. Apart from setting out what Grove J decided about s48, there was no discussion of the issue by the Court of Appeal.

10. Other Federal Court Authorities
(a) There has already been reference to and a quotation from Kurtovic above. There the Full Federal Court concluded that the power of the Minister to order deportation under the then s12 of the Migration Act 1958 (Cth) was not spent once used but exercisable from time to time whether or not there had been a change in the relevant facts. Each member of the Court wrote separate reasons. The reasons of Neaves J do not address s33 of the Acts Interpretation Act. Ryan J at page 201 agreed with the conclusion and reasons of Gummow J on the issue. Set out above was a quotation from the reasons of Gummow J at page 211. At page 218 his Honour said there was nothing in the Migration Act which suggested an intention contrary to the presumption embodied in s33(1) of the Acts Interpretation Act 1901 (Cth). His Honour therefore said that “the power to make a deportation order is exercisable from time to time, so as to revoke or revive a deportation order previously made, whether on the same facts as before or otherwise.” His Honour concluded therefore the Minister had not been functus officio.
(b) (i) A somewhat different approach was taken by Branson J in Dutton v Republic of South Africa (1999) 162 ALR 625. This involved extradition proceedings. After being detained for possible extradition, a magistrate determined the applicant was not eligible for surrender to South Africa and ordered his release. This was based upon the terms of the Extradition (Republic of South Africa) Regulations. After amendment to the regulations the South African High Commission again made a request for the applicant’s extradition. Accordingly, a second notice under s16 of the Extradition Act 1988 (Cth) was issued because of the request and the applicant was again arrested. Various proceedings were commenced in relation to the possible extradition of the applicant. The proceedings before Branson J involved motions moved by the respondent for the dismissal of proceedings commenced by the applicant.
(ii) At paragraph [28] Branson J quoted from the Full Court decision of Harris v Attorney General (Cth) (1994) 52 FCR 386 at 389 which explained the stages in extradition proceedings under the Extradition Act. Presently relevant is that the commencement of proceedings was by the issue of a provisional warrant or by the giving of a notice under s16(1) of the Extradition Act. The next stage was the remand of the person. The third stage was the determination by a magistrate of eligibility for surrender and the fourth stage was executive determination that the person was to be surrendered. Accordingly, after arrest, the person was required to be taken before a magistrate and remanded in custody or on bail for such period as was necessary for eligibility proceedings to be taken under s19 of the Extradition Act.
(iii) Branson J said in paragraph [30] that the Attorney General giving a notice under s16(1) was one of the circumstances necessary to enliven the obligation of a magistrate to conduct an extradition proceeding under s19(1) of the Extradition Act. Her Honour noted that s19(1) referred to the fact of the Attorney General having given a notice and not to the fact there had been in existence a s16(1) notice which had not been withdrawn.
(iv) At paragraph [31] Branson J said the statutory scheme did not expressly provide for the withdrawal of s16(1) notice. Her Honour said it was reasonable to conclude that this was because the magistrate to whom an application was made under s19(1c) and the extradition country had obligations and rights under s19, which were dependent upon the giving of a notice under s16(1). Her Honour expressed the opinion that a notice under s16 of the Act, once issued, could not be withdrawn.
(v) At paragraph [32] her Honour said the applicant had placed reliance on s33(1) of the Acts Interpretation Act 1901 (Cth). Significantly then her Honour said that s33(1) “does not refer to the withdrawal or cancellation of the exercise of a power. If it did, I would conclude that [the] Act discloses a contrary intention so far as the power conferred by s16(1) is concerned”. Her Honour then contrasted s33(3) on the Acts Interpretation Act which does include, but only in relation to instruments of a legislative character, a reference to a power to “repeal, rescind [and] revoke”. Her Honour said that this had no application to the notice because it was not an instrument of a legislative character.
(c) Clarke v Vanstone (2004) 211 ALR 412 involved the exercise of powers of suspension from office for misbehaviour of the applicant by the respondent Minister pursuant to s40(1) of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) (ATSICA). A first decision was made to give notice to the applicant that the Minister was considering suspending him from office as a Commissioner. A second decision was then made to suspend him from office for misbehaviour. Gray J held s33(1) of the Acts Interpretation Act enabled the respondent to make a new suspension decision in place of the original decision. At paragraph [59] his Honour having referred to s33(1) said that there were two questions. The first was does a contrary intention appear? The second was does the occasion require the exercise of the power when there has already been an exercise of it? His Honour quoted from the reasons of Gummow J in Kurtovic. Gray J then said there was nothing on the face of s40 of the relevant Act that suggested the powers granted by it were exercisable only on a once at a time basis. His Honour said the powers were not inherently incapable of exercise on more than one occasion even though the events which brought about an earlier exercise were still in progress. (There was a pending appeal against a conviction that led to the first decision). His Honour said the scheme of the section was that multiple exercises may be at least desirable if not necessary. His Honour concluded at paragraph [62] that s40 of the ATSICA did not exhibit a contrary intention such as to oust s33(1).
(d) (i) Section 33(1) was also at the forefront of consideration in the Full Court decision of Minister for Immigration and Multicultural and Indigenous Affairs v Watson (2005) 145 FCR 542. The issue was whether the Minister had the power to revoke her own decision to cancel a visa pursuant to s501(2) of the Migration Act 1958 (Cth). There was no express power in the legislation and the Court had to consider whether the legislation contained an implied power. It was held by the Full Court that there was a legislative intention that the power in s501 could be exercised only once. There was accordingly no power to revoke a decision made by the Minister. Each member of the Full Court, Dowsett, Hely and Lander JJ wrote separate reasons for decision.
(ii) Dowsett J at paragraph [2] referred to the lack of any express power to revoke the cancellation and said that the only source of such a power could be s33(1) of the Acts Interpretation Act. His Honour referred to the “pervasive effect” of the section and quoted from Kurtovic per Gummow J at 211 and Pfeiffer v Stevens per Gleeson CJ and Hayne J at [25]. His Honour said at paragraph [4] that all statutes conferring powers and obligations must be construed in the context created by the existence of s33(1); and also that it may be excluded expressly or by implication. Dowsett J concluded that a broad consideration of the Migration Act persuaded him that there was an intention to exclude the operation of s33(1) of the Acts Interpretation Act.
(iii) Hely J at paragraph [18] referred to two questions which arose. The first was whether s33(1) (assuming it applied) operated so as to effectively empower the Minister to revoke a visa other than as contemplated in s501C(4) of the Migration Act. The second was whether the Migration Act disclosed a contrary intention. In relation to the first issue his Honour at paragraph [19] referred to the observations by Branson J in Dutton that s33(1) does not refer to the withdrawal or cancellation of the exercise of a power. His Honour then said that a broader view of the operation of s33(1) appeared to have been adopted by Gummow J in Kurtovic and in the majority of the Full Federal Court in Minister for Immigration and Multicultural Affairs v Bhardwaj (2000) 99 FCR 251; although Hely J noted the High Court decided Bhardwaj without reliance upon s33. Hely J then referred to the facts and decision in Kurtovic. Hely J at paragraph [22] said the reference by Gummow J to a power to make a second deportation order “so as to revoke or revive” a deportation order were obiter observations as in Kurtovic there was not a second exercise of the s12 power which revoked the first.
(iv) At paragraph [23] Hely J said s33(1) did not have the effect that once there is a valid exercise of the power to cancel a visa under s501(2), the visa can be effectively restored to the former holder by a second exercise of that power. His Honour said that whilst the Minister had a discretion about whether or not to exercise the power, the power in question was simply a power to cancel a visa which, if validly exercised, results in the former holder acquiring the status of an unlawful non citizen. His Honour said there was no occasion for the re-exercise of the power once it had been validly exercised. At paragraph [24] his Honour said that if s33(1) did have that effect he would conclude the Migration Act disclosed a contrary intention to the re-exercise of the power to cancel. This was because there were specific and confined powers of revocation of a decision to cancel a visa under s501(3) or s501A(3), given to the Minister under s501C(4).
(v) Lander J referred to s33(1) in paragraph [46] and at paragraph [50] said the question was one of statutory construction but the answer was not easy. His Honour then reviewed the relevant legislation. At paragraph [117] his Honour returned to consider s33 and said it did not “widen the power given by s501 of the Act or allow it to be exercised more often than the purpose of that section permits”. His Honour then referred to s33(1) having no application if a contrary intention appeared and said, relying upon paragraphs of the reasons in Pfeiffer v Stevens, that the contrary intention may appear not only in the particular legislative provision which creates the power but also the Act as a whole. At paragraph [120] his Honour said that if “on a construction of the Act it would appear that once the power is exercised the power is spent, then it must be said that the Act evinces a contrary intention”.
(vi) His Honour then considered other authorities including Kurtovic, Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429 (in which Lander J said s33 did not appear to have been drawn to the attention of the judge), Burgess v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 58 and VQAR v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 900. Lander J concluded at paragraph [138] that the relevant sections of the Migration Act indicated a contrary intention to the proposition that the power may be exercised from time to time as the occasion requires. His Honour said the scheme of the relevant sections showed the intention was that the power given should be exercised only once.
(vii) An application for special leave to appeal to the High Court against the decision of the Full Court in Watson was refused on 10 March 2006 (Watson v MIMIA [2006] HCA Trans 138). The hearing took place before Gummow, Kirby and Crennan JJ. After, a hearing which lasted about 30 minutes, (consistently with the relevant practice direction), their Honours adjourned and upon resuming about 10 minutes later, Gummow J announced that a majority of the Court refused special leave. His Honour said having regard to matters including “the decision of the Full Court on the issue of contrary intention, this is not an appropriate occasion for this Court to consider questions of principle respecting section 501(2) of the Migration Act 1958 (Cth) and section 33 of the Acts Interpretation Act 1901 (Cth)”.

11. Other Supreme Court of New South Wales Authorities
(a) There is only one other authority from New South Wales which I will refer to. This is Allianz Australia Insurance Ltd v Crazzi [2006] NSWSC 1090. The applicant sought prerogative relief with respect to a certificate issued in favour of Mr Crazzi by a Mr Flynn in his capacity as an assessor for the Motor Accidents Authority of New South Wales, under s94 of the Motor Accident Compensation Act 1999 (the MACA). It was submitted the certificate was invalid and ought to be set aside. The assessor issued a first certificate which did not deal with a claim for interest. The assessor then purported to issue a second certificate after determining the interest claim on the basis that the assessor accepted he had fallen into jurisdictional error. Johnson J at paragraph [118] ff considered s48 of the Interpretation Act 1987 (NSW). At [122] ff Johnson J said he was satisfied that s48 had no application to allow an assessor to revisit the issue of a certificate and statement of reasons under the MACA. His Honour said the power was to be exercised only once by the assessor. In the next paragraph Johnson J referred to an administrative decision involving a jurisdictional error, citing Bhardwaj (HC) and other authorities, and said that the unavailability of s48 of the Interpretation Act did not stand in the way of an assessor, after jurisdictional error, performing their statutory functions under the relevant Act. His Honour then went on to consider that issue. I will later distill from the authorities the principles which I think emerge.

12. Consideration of the Respondent’s Submissions
52 I will now consider the submissions of the respondent at the hearing which I have earlier summarised.
53 In paragraph [38] above I quoted the first submission made by Mr Schapper. In my opinion it was a misstatement to refer to the issue as being whether the Registrar had power to discontinue the application. The Registrar chose to make an application for leave to discontinue the application on the basis of the revocation of the direction. As confirmed by Mr Bathurst in his submissions referred to above, the Registrar wished to proceed with the substantive application, if there was no power for the Commissioner to revoke the direction.
54 I accept the submissions of Mr Schapper as summarised in paragraph [49](b) and (d).
55 As for the submission referred to in [49](c), in my opinion Mr Schapper blurred the issue of a power to revoke a direction with the carrying on by the Registrar of the proceedings initiated because of the direction. The issue before the Full Bench was whether the Commissioner had the power to revoke. This was the issue because of the basis upon which the Registrar sought leave to discontinue the application. In my opinion the Registrar, who has the carriage of the enforcement application, is entitled to make applications to the Full Bench such as to seek leave to discontinue the proceedings. Ordinarily, such a decision would not be “reviewable”. But that is not this case. In this case the applicant seeks leave to discontinue fundamentally on the basis that the direction was revoked and that there was a lawful power to revoke. The issue is whether this power exists as a matter of law.
56 To suggest therefore that both parties do not wish to proceed is an over simplification of the position of the Registrar. As set out earlier, the Registrar only wishes to not proceed if the Commission, as a matter of law, had the power to revoke the direction. The Registrar’s desire not to proceed with the application cannot therefore be divorced from the issue of the power to legally revoke the direction. Accordingly, the Registrar submitted that if the application for leave to discontinue was not granted, on the basis of the revocation, he would not simply lead no evidence so that the application would be dismissed on that basis.
57 I also do not accept the submission summarised in paragraph [49](e). Once a direction has issued, the Registrar is to commence proceedings. Once those proceedings are commenced, the direction having already been made, the proceedings can continue without a “continuing direction”. The concept of a “continuing direction” is not present in s84A. The fact that there needs to be a direction for the proceedings to be instituted does not of itself imply that there is a power to revoke.
58 I do not accept the submission summarised in paragraph [49](f). I do not accept that the Registrar is acting as the agent of the Commission or a Commissioner in instituting enforcement proceedings. Once having received the direction, the Registrar as applicant exercises their own discretion in the running of the application.
59 My consideration of the submissions summarised in paragraph [49](g) and (h) will be covered in my analysis of the submissions of the Registrar.
60 To enable this to properly occur I need to analyse the nature of the power to direct a Registrar to commence enforcement proceedings.
13. The Nature of the Power to Direct and the Purpose of a Direction
61 The powers of the Commission under the Act are both of an administrative and judicial character. (See Helm v Hansley Holdings Pty Ltd (In liq) (1999) 118 IR 126). In my opinion the decision as to whether or not to issue a direction under s84A(1)(b) or s93(9) of the Act is a discretionary administrative decision. So, too, in my opinion, is the action of a Commissioner in giving a direction to the Registrar. Both counsel accepted this.
62 There are limits to the exercise of these powers, like all administrative powers. In Judicial Review of Administrative Action, Aronson and Others, Law Book Company, 3rd Edition, 2004, the authors state at pages 85/86 that the concept of judicial review “…assumes that all public power has its limits … One of administrative law’s mantras is that there is no such thing as an unfettered power … They cannot lawfully be exercised for personal gain or motive, or irrationally, or for purposes which exceed the reasons for their conferral”. In the footnote at the end of the last sentence there are a number of authorities cited including Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 per Brennan CJ, Gaudron and Gummow JJ at 171; Goldie v Commonwealth [2002] FCA 261 per French J at [45]; Gerlach v Clifton Bricks Pty Ltd (2002) 188 ALR 353 at [69]-[70] per Kirby J and Hot Holdings Pty Ltd v Creasy (2002) 210 CLR 438 per Kirby J at 468 and 481. In the present context the reference to the purpose for the conferral of the power is relevant.
63 Kitto J in R v Anderson; ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177 at 189 said:-
“It is a general principle of law, applied many times in this Court and not questioned by anyone in the present case, that a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself: Sharp v Wakefield [1891] AC 173, at p 179…. A case for the granting of mandamus on this principle exists where the officer has taken into account matters "absolutely apart from the matters which by law ought to be taken into consideration": Reg v Cotham [1898] 1 QB 802, at p 806; Randall v Northcote Corporation (1910) 11 CLR 100, at pp 109, 110, or has acted for a purpose other than that for which the discretion exists: Water Conservation and Irrigation Commission v Browning (1947) 74 CLR 492, at pp 496, 498, 499, 500, 504, or has accepted another's direction as to the way in which the discretion should be exercised: R v Stepney Corporation [1902] 1 KB 317; Simms Motor Units Ltd v Minister of Labour and National Service [1946] 2 All ER 201, cf Evans v Donaldson (1909) 9 CLR 140 .” (Emphasis added)

64 Similarly, Mason J in FAI Insurances Ltd v Winneke and Others (1982) 151 CLR 342 at 368 said:-
“The general rule is that the extent of the discretionary power is to be ascertained by reference to the scope and purpose of the statutory enactment.”

65 The same doctrine applies in England and Canada. With respect to the position in England, regard may be had to the texts of de Smith, Woolf and Jowell, Judicial Review of Administrative Action, Fifth Edition, 1995 at page 336 and Wade and Forsyth, Administrative Law, Ninth Edition, 2004 at page 354ff and the cases there cited.
66 The position in Canada was explained by its Supreme Court in Minister of Labour for Ontario v CUPE (2003) 226 DLR (4th) 193. In my opinion this authority is of assistance. The appeal involved the power of the relevant Minister to make appointments of arbitrators as part of a tripartite board to resolve disputes about the negotiation of collective agreements.
67 Binnie J (for the majority) at paragraph [49] said the “Minister, as a matter of law, was required to exercise his power of appointment in a manner consistent with the purpose and objects of the statute that conferred the power”. At paragraph [91] Binnie J said the “Minister does not claim an absolute and untrammelled discretion. He recognizes, as Rand J. stated more than 40 years ago in Roncarelli v. Duplessis [1959] S.C.R. 121 (S.C.C.) at p. 140, 16 DLR (2nd) 689, that ‘there is always a perspective within which a statute is intended to operate’”. At paragraph [94] Binnie J said “perspective” was another way of describing the policy and objects of the statute. On this issue Binnie J concluded at paragraph [112] that “the legislature intended to give the Minister broad but not unlimited scope within which to make appointments in furtherance of [the relevant Act’s] object and purposes”.
68 Also, when making administrative decisions, to comply with the law, decision-makers must not either fail to take into account a relevant consideration or take into account an irrelevant consideration. (See for example Australian Conservation Foundation v Forestry Commission (1988) 79 ALR 685 at 693; Re City of Joondalup; Ex Parte Mullaloo Progress Association Inc [2003] WASCA 293).
69 The Act does not expressly set out the considerations which ought to guide a Commissioner in deciding whether or not to issue a direction. This is not at all unusual for a statutorily conferred administrative power. (See Minister for Aboriginal Affairs and Another v Peko-Wallsend Ltd and Others (1986) 162 CLR 24 per Mason J at 39-40). As explained by his Honour, if the relevant factors “are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act”. (Pages 39-40). It is presently unnecessary to consider what might be all of the relevant considerations for a Commissioner in deciding whether or not to issue a direction.
70 However both counsel supported their submissions in part by reference to a suggested link between the power to issue a direction and the Commission’s resolution of industrial matters. In my opinion the Commission’s role in attempting to resolve industrial disputes and in issuing an enforcement direction are separate. In the first instance the Commission is acting as a conciliator or arbitrator. In the latter the Commission is acting as the procedural catalyst for the taking of enforcement action by the Registrar.
71 The role of the Commission within s84A and s93(9) establishes and maintains this distinction. Section 84A(1)(b) and s93(9) only give the Commission an involvement in the taking of one type of enforcement action of all of those specified in s84A. The role of the Commission is limited to that of the giving of the direction. The direction is to the Registrar. Section 84A(1)(b) says the Registrar “may make application” for enforcement. Although s56 of the IAWA provides that usually the use of “may” in a written law imports a discretion, in this instance, in accordance with s3 of the IAWA, the context necessitates the construction that the Registrar has a duty rather than a discretion. The use of “may” is facultative – providing permission to take enforcement action, but involving a duty to do so where directed. The submissions of both counsel proceeded on the basis that the Registrar did not have a discretion not to commence proceedings following the issuing of a direction by the Commission.
72 This is reinforced by s93(9) which provides for the issuing of the direction to the Registrar to make the application, but not the manner in which the application should be made; which is covered by s84A(1)(b). The use of the word “direction” contemplates, in the context, that the Registrar will do as directed.
73 Once the Commission issues the direction however it is the Registrar who commences the application and is thereafter the applicant. There is nothing in the Act which suggests the Commissioner who has issued the direction has any ongoing role in the enforcement action once commenced.
74 The separation of the conciliatory/arbitral and enforcement roles of the Commission is also made manifest by their contextual separation in the Act. The relevant power to direct is contained in Part III dealing with enforcements and Part V dealing with the appointment and duties of the Registrar and other officers of the Commission. The Commission’s conciliatory and arbitral powers are contained in Part II. Under s84A(1)(b) the only orders (etc) about which the Commission may direct the Registrar are those issued under s44(3), s32 and s44. Section 44(3) is the requirement for a person summonsed to attend for a conference under s44(1). Section 32 is part of Division 2 of Part II, the “General jurisdiction and powers of the Commission”. Section 44 is within Division 2C of the Act, the “Holding of compulsory conferences”.
75 The orders made under s32 are for the purposes specified in the section, being primarily to assist the parties to resolve an industrial matter by conciliation or arbitration (see ss32(2), (3), (4), (8)(a)(ii)) or to prevent the deterioration of industrial relations pending resolution by either of these methods (s32(8)(a)(i)). Orders made under s44 are for substantially similar purposes. (See in particular ss44(5a), (6)(ba), (6)(bb)(ii), (8), (9) and (12d)).
76 In my opinion the choice of the Commission as being the catalyst for enforcement action under these sections is significant. The Commission is well placed to assess, in the context of the industrial matter before it, whether enforcement action should commence for an alleged breach. Once the direction is issued and acted upon however the Commission’s role in enforcement ends. The terms of the direction issued by the Commission in this matter illustrates this. The action commenced by the Registrar is juridical and litigious and is qualitatively different and distinct from any conciliatory or arbitral functions of the Commission.
77 The scheme of the Act is clearly that orders made by Commissioners are required to be observed. This is of course a very obvious point. The authority of the Commission would be undermined if parties could simply flout the orders made by it. As a court of record (s12 of the Act) the Commission would be toothless. There would in such circumstances be little point in the Commission having the powers it does to make orders, hear and decide applications, arbitrate disputes or make awards. Moreover it would be futile for parties to seek to make use of the Commission’s arbitral and albeit perhaps to a lesser extent conciliatory powers.
78 In my opinion, the purpose for which a direction may be issued under ss84A(1)(b) or 93(9) of the Act, derived from the objects and purposes of the Act, including the object of the making of orders under s32 and s44 and the nature of an enforcement application and proceedings, is as follows. It is to reinforce the seriousness of the compliance with orders made by the Commission and to provide a mechanism for the commencement of proceedings so that the Full Bench can decide if there has been non compliance and deal with any person or entity who has not so complied; including by way of the penalties set out in s84A.
79 As stated, the Commission must exercise the discretion reposed in it under s84A(1)(b) in accordance with the scope and purpose of the power. In my opinion the discretionary power could not lawfully be exercised by the issuing of a direction against a party, to endeavour by such an action, to resolve an industrial dispute or matter before the Commission; in either a general or particular way. That is, a direction is not part of the armoury of the Commission which could be used as a big stick or Sword of Damocles, to wave or dangle to try and force the hand of a party to resolve an industrial matter; with the poised stick or dangling sword being tossed away, by the revocation of the direction, if the industrial dispute is resolved. The purpose of the issuing of the direction is, as set out above, for the purpose of the commencement of enforcement proceedings. The use of the power for some other purpose, like to put pressure on a party to resolve a dispute would in my opinion be ultra vires. (See for example Samrein Pty Ltd v Metropolitan Water Sewerage and Drainage Board (1982) 41 ALR 467).
80 Even if the industrial dispute, which led to an order and then a direction being made is resolved, there is a public interest in ensuring that a commenced enforcement application continues. This is especially so given that the actions of the party which led the Commissioner to exercise their discretion to issue a direction were considered at the time to be sufficient cause for this to be done.
81 This element of public interest is in my opinion relevant to the issue of whether a Commissioner has the power to revoke a direction. As stated in paragraph [47] of the adjournment reasons, in the present matter there was “potential for school students, their parents and the public as a whole to be affected by the industrial action which was in turn affected by the orders made by Commissioner Harrison of which enforcement is now sought”.
82 As set out above, the Full Bench has not been provided with a copy of the purported revocation or the reasons for this. Significantly it is not suggested that there was any jurisdictional error in issuing the direction. Moreover as emphasised the Registrar’s position is to proceed with the enforcement action if the present application, based on the putative power to revoke, is not acceded to. This implies an ongoing belief by the Registrar that the evidence exists to support the substantive application.

14. Section 84A(1)(b) and the Relevant Approach to Statutory Construction
83 Kirby J in a series of his reasons in the High Court has emphasised that “the fidelity of a court is to the statutory language”. (This quotation is from R v Barlow (1997) 188 CLR 1 at 43; but see also WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 210 ALR 190 at [89], Attorney General (WA) v Marquet (2003) 217 CLR 545 at [145], [146], and North Ganalanja Aboriginal Corporation v Queensland (1996) 185 CLR 595 at 652). In North Ganalanja, Kirby J cited the joint reasons of Mason CJ, Wilson and Dawson JJ in Re Bolton and Another; Ex parte Beane (1987) 162 CLR 514 where it was stated that the “function of the Court is to give effect to the will of Parliament as expressed in the law”. Therefore in construing both the Act and the IAWA it is the meaning of the relevant words which is the primary reference point. (See Weiss v R (2005) 224 CLR 300, per Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ at [31]). In particular, the Full Bench must not seek to just apply judicial observations about sections like s48 of the IAWA, divorced from a construction of the meaning of the words used in the section. (See Federal Commissioner of Taxation v Citylink Melbourne Limited (2006) 80 ALJR 1282 at [13]; A-G (Queensland) v AIRC (2002) 213 CLR 485 per Kirby J at [113]; Dinsdale v R (2000) 202 CLR 321 per Kirby J at [77], [84], Gaudron and Gummow JJ agreeing at [26]).
84 It is the construction of the section which is required, not simply an application of judicial comments about a similar section.

15. The Role of the Interpretation Act (WA)
85 In the earlier discussion of the authorities there has been some mention of the role of interpretation acts.
86 It is also relevant to refer to Attorney General for the State of Queensland v Australian Industrial Relations Commission (2002) 213 CLR 485 where Gleeson CJ said at paragraph [8]:-
“[8] Acts of Parliament are drafted, and are intended to be read and understood, in the light of the Acts Interpretation Act. A particular Act, and the Acts Interpretation Act, do not compete for attention, or rank in any order of priority. They work together. The meaning of the particular Act is to be understood in the light of the interpretation legislation. The scheme of that legislation is to state general principles that apply unless a contrary intention is manifested in a particular Act.”

87 At paragraph [14] the Chief Justice said the purpose of the Acts Interpretation Act was to resolve not create uncertainties about legislative intent.
88 Kirby J at [131] said with respect to the applicability of a section of the Acts Interpretation Act “unless the contrary intention appears”:-
“That phrase reinforces the duty first to attempt to elucidate the meaning and effect of the supervening legislation. Until that attempt is made, the existence or absence of a contrary intention cannot be stated with any certainty.”

89 It is also necessary to consider with some precision what s48 of the IAWA means. Without doing so it is not possible to assess its interaction with s84A(1)(b) or s93(9) of the Act, or whether there is any contrary intention as referred to in s3 of the IAWA.

16. Functus Officio
90 As set out above, Mr Bathurst submitted s48 of the IAWA displaced the functus officio rule. This reinforces the points made above about statutory interpretation.
91 In broad terms, “functus officio” has been relevantly defined to mean “having discharged one’s duty … having performed the authorised act and being unable to go back to it a second time”. (Butterworths Australian Legal Dictionary, 1997, page 509). Thus expressed, and as stated in the article, Don’t Think Twice? Can Administrative Decision Makers Change Their Mind?, Orr and Briese, Number 35, Australian Institute of Administrative Law Forum, December 2002, 11 at page 14, “functus officio is a conclusion …”. Earlier at page 13, the authors state with respect to the concept of functus officio that “in each case it is necessary to consider what the powers of the decision maker are in this regard. This generally requires the application of administrative law and statutory interpretation principles”. (See also Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273 at [58], which refers to this article).

17. Section 48 of the IAWA – Distillation From the Authorities
92 In my opinion the following can be distilled from or guide a consideration of the authorities referred to earlier:-
(a) The interaction between s48 of the IAWA and the Act both generally and with respect to s84A(1)(b) or s93(9) is as described by Gleeson CJ in Attorney General for the State of Queensland v Australian Industrial Relations Commission.
(b) The terms of s48 need to be considered to ascertain if it applies to a given statutory power/duty. Also s3 of the IAWA has the effect that the context of the statute and power/duty in question need to be considered to see if there is an intention contrary to the application of s48.
(c) Both elements of (b) mean that the question of whether a power/duty can be twice exercised is ultimately one of statutory construction. This does not simply involve the application of past judicial observations.
(d) To determine the applicability of s48 it is necessary to identify the content of the power/duty in question. It could, for example, contain its own temporal dimension which limits the occasion for the exercise of the power. The particular power/duty in question must be considered to see if there is a terminus for its exercise (see Gummow J in Pfeiffer).
(e) Section 48 of the IAWA when it applies, allows a duty or power to be exercised more than once. The deponee of the power/duty is therefore not functus officio after a single exercise of the power.
(f) There is no authority in which it was decided that the exercise of a statutory power may be just revoked without replacement by a second exercise of the power. Comeau’s Sea Foods did not decide this as the statutory power had not yet been invoked. Moreover following Branson J in Dutton, s48 does not in its terms refer to revocation of the exercise of a power. This observation is supported by Hely J in Watson. The outcome in Watson was also, albeit in the context of the particular statutory regime, against an equivalent to s48 authorising mere revocation.
(g) The discussion in Wade is useful as it highlights that an understanding of the nature and effect of the power in question leads to the conclusion of whether it may be exercised more than once. This derives from the statute in question and focuses on the role of the decision-maker and the effect of the decision made. In part this involves considering if a second exercise of the power is inimical to that role or effect and/or would offend a requirement for finality.
(h) A contrary intention for the purposes of s3 of the IAWA can be found in the express or implied terms of the legislation, or its context or character (see McHugh J in Pfeiffer).
(i) Where a discretionary power is of such a character that it is not exercisable from time to time, a decision-maker who purports to resile from an exercise of the power and make a second decision will be acting ultra vires (see Gummow J in Pfeiffer).
(j) Where however a purported first exercise of a power/duty contains a jurisdictional error it may therefore be exercised again, even if ordinarily the power/duty is spent after its first use (see Bhardwaj (HC), Allianz Australia and Kabourakis).

93 In my opinion, the authorities are, generally, reconcilable as:-
(a) There are circumstances where a second exercise of the power is not beyond the functions given to the deponee (eg ABT v Bond, Gorman and North Australian Aboriginal Legal Aid). Although Gorman was heavily focussed on by Mr Bathurst the review of the decision above demonstrates that it was the text and context of the Medical Practice Act and the specified powers of the Medical Board which were crucial.
(b) The nature of some powers, in their statutory context and given the role of the deponee, do not permit a subsequent exercise (eg Ping, Walter, Dutton, Kabourakis).
(c) Where the power involves an assessment of a quantity of money by way of grant or compensation it is generally not exercisable a second time, due to finality (eg Export Development Grants Board, Firearm Distributors).
(d) The exercise of a power which involves or has led to an adjudicated decision may not be re-exercised. I accept therefore Mr Bathurst’s submission that the result in Kabourakis was not surprising.
(e) The cases do not support the mere revocation of the exercise of a power on its own, without its exercise again (eg Dutton, Watson). I note also that Glass JA in Parkes Rural Distributions Pty Ltd v Glasson at page 336 referred to a “second certificate issued in lieu of it” not being void.

94 I also accept, with respect, that there are limits to the usefulness of the reasoning of Nettle JA in Kabourakis. This is partly because his Honour did not consider the role, in the authorities he cited, of the corresponding section to s48 of the IAWA. Nevertheless his Honour’s criticism of the applicability of the reasoning in Lawrie v Lees requires consideration.

18. Construction of Section 48 of the IAWA
95 In my opinion there are, with respect, difficulties with the reasoning of Lord Penzance in Lawrie v Lees. Firstly although his Lordship’s comments were said to be applicable to all statutes containing the expression “from time to time”, the particular facts, question for the court and statutory context within which the comments were made cannot be overlooked.
96 Secondly and more significantly, with great respect Lord Penzance conflates the issues of what may be done and when it may be done. “From time to time” relates only to the latter and not the former.
97 The application of s48 of the IAWA involves the following, having regard to its terms and the effect of s3 of the IAWA:-
(a) Identification of the power/duty.
(b) An understanding of how the power/duty is exercised.
(c) Where there is the absence of an express provision to the contrary and the intent or object of the relevant Act or something in the subject or context of that Act are not inconsistent with its application there is:
(i) Permission for the power to be exercised or the duty performed;
(ii) From time to time;
(iii) As occasion requires.

98 A power/duty may only be exercised from time to time under s48 if the occasion requires it. This requirement places functional limitation on the re-exercise of the power/duty. There cannot be another exercise of the power unless there is an “occasion” which requires it. What will constitute such an occasion will again depend on the nature of the power/duty and the factual circumstances.
99 In its terms, s48 refers only to the exercise of a power from time to time, not the revocation of an exercise of a power. The inclusion of a power of mere revocation into s48 involves the importation of a word into the section. To so import would not involve observing the “fidelity” requirement of Kirby J referred to earlier.

19. Can the Direction be Revoked?
100 In my opinion, having regard to all of the above, the determination of whether the direction could in law be revoked is relatively straightforward.
101 The power to direct was exercised and the direction issued to the Registrar. The Registrar commenced the substantive application as then required.
102 As stated earlier, the functions of the Commission and the Registrar, in the enforcement process, are separate and distinct. Once a direction is issued, a Commissioner’s role in the enforcement proceedings is at an end. The Registrar commences the action and as applicant then has the carriage of it.
103 Having regard therefore to the function of the Commission in the enforcement process and the effect of the exercise of the power to direct, the Act does not intend for there to be a power for the Commission to revoke a direction, at least after it has been acted upon by the Registrar and an application commenced – so that the application must or should then be discontinued or dismissed. The enforcement application by the Registrar is not dependent upon a continuing direction or a direction not revoked until the application is heard and determined.
104 As stated, once the direction is issued, the role of the Commission in the enforcement application is complete. The power is spent and therefore the Commissioner can be said to be functus officio. The exercise of the power has its own functional and temporal terminus. The Commissioner does not after the direction has been issued remain in the arena of the enforcement action either as protagonist or guardian of its continuation.
105 This conclusion is reinforced because there are other sections of the Act which clearly give the Commission powers to revoke. Examples are s25(1)(c) (Chief Commissioner may revoke allocation of an industrial matter); s42C(4) (Commission in Court Session may revoke a code of good faith); s80ZH(2) (Chief Commissioner may revoke the reference of an industrial matter to a member of the “Australian Commission” where he has requested the President of that Commission to deal with an industrial matter); s96(10) and (11) (revocation by the Chief Commissioner or a Commissioner of a direction, determination or order made by the Registrar in the exercise of a delegated function); s97VX(4) (Commissioner may revoke instrument setting out principles and guidelines to be followed by the Registrar “in determining whether an EEA passes the no disadvantage test”) and s97WE(2) (revocation by Commissioner of an order to exempt an EEA from inspection). These sections, not referred to by Mr Bathurst, show that the legislature has given specific attention to the circumstances when administrative actions under the Act may be revoked – and this does not include a direction under s84A(1)(b) or s93(9).
106 This is not to say however that the conclusion I have reached applies to other powers of the Commission under the Act to issue directions or make administrative decisions. As has been emphasised, the question of whether a power once exercised can be revoked is dependent upon a consideration of the specific power. My conclusion does no more than decide that there is no power to revoke a direction under s84A(1)(b) or s93(9), after the commencement of the enforcement proceedings which the Registrar was directed to take.
107 Section 48 of the IAWA does not, in my opinion, contrary to the submission of the Registrar, provide authority for the revocation of the direction. Section 48 refers to the exercise of a power or duty. It is a power which the Full Bench are presently considering. The exercise of the power in question, in s84A(1)(b) or s93(9), is the issuing of a direction. The revocation of a direction is not the exercise of the power and therefore s48 does not permit it to occur from time to time.
108 In any event, in the terms of s3 of the IAWA, there is something in the context of the Act which is inconsistent with the application of s48 to the power to direct. This is, as referred to earlier, the limited function of the Commission in issuing a direction, the separation between the roles of the Commission and the Registrar and the effect of the exercise of the power – to cause an application to be commenced and one in which the Commissioner then has no role to play. To allow the Commission a power to revoke would change the character of this statutory regime.
109 The foregoing answers the submissions of both counsel. In my opinion, also, the issues which Mr Bathurst had difficulty in providing a clear answer to in his submissions, as identified earlier, demonstrate that there are clear difficulties if the Commission had a power to revoke. These include:-
(a) Why and to what extent can the changing mind or actions of the Commissioner fetter or control the way the Registrar, as applicant, conducts enforcement proceedings?
(b) What is the effect of a revocation? Does it mean the action is automatically at an end, or that the Registrar must or should apply for the application to be dismissed/discontinued or may do so in his discretion? If the latter, what considerations ought guide him in making this decision?
(c) How often could a Commissioner change their mind to issue or revoke a direction? Could a genuinely vacillating Commissioner direct and revoke, with respect to the same order and actions of a party, on a daily basis? Would there be an abuse of process if this occurred? If the power to revoke is constrained by an element of reasonableness what are the bounds of reasonableness?
(d) If a power to revoke exists, at what stage does that power cease? Mr Bathurst accepted the power did not exist after a decision on an enforcement application had been made by the Full Bench but struggled with whether there was some earlier terminus. Mr Bathurst accepted this was a difficult question and one ultimately of legislative intent.

110 In my opinion these difficulties assist in showing that the legislative intent is against a power to revoke a direction after the commencement of an enforcement application.
111 Contrary to some of the submissions, this does not mean the Registrar, after commencing an application, is railroaded so that the application must continue to hearing and determination. The Registrar as applicant, but consistently with his implied statutory duty to act with due probity, conducts the application in the manner he sees fit. In an appropriate case this may, for proper reasons, include seeking the application to be dismissed without hearing; or the resolution of the matter at the conference envisaged in s84A(4)(b). The settlement of an industrial matter or the cessation of any industrial activity is no doubt a matter which could guide the Registrar in his attitude to the resolution of the matter at a s84A(4)(b) conference. But this is conceptually different from the same considerations grounding a power for the Commission to revoke a direction.

20. Conclusion
112 In my opinion the application for leave to discontinue the substantive application should be dismissed. This is because the application was solely based upon acceptance by the Full Bench of the Commissioner having the power to revoke a direction. In my respectful opinion the Commissioner had no such power and accordingly the substantive application should, under the stewardship of the Registrar as applicant, at least at present continue.
113 In my opinion it is appropriate to now list the matter for conference pursuant to s84A(4)(b). In my opinion a minute of proposed order should issue that:-
1. The application for leave to discontinue is dismissed.
2. The application be listed on a date to be fixed for a conference pursuant to s84A(4)(b) of the Industrial Relations Act 1979 (WA).

BEECH CC:
114 I have read in advance the Reasons for Decision of his Honour and join with him in his conclusion that there is no power for a Commissioner to revoke a direction under sections 84A(1)(b) and 93(9) after the commencement of the enforcement proceedings.
115 I add that even if there was such a power to revoke, it could not undo what had been done by the Registrar in compliance with the direction.  Time has moved on.  After the commencement of the enforcement proceedings the Registrar became an applicant in his own right to proceedings before the Full Bench under s.84A.  A revocation of the direction is not, and cannot be, an implicit direction to the Registrar not to proceed with the prosecution.  Whether or not to proceed is, and remains, entirely a matter for the Registrar having regard to all of the circumstances.  I agree with the order proposed.

SCOTT C:
116 I have had the benefit of reading the reasons of decision of the Acting President and I agree with those reasons. However, I wish to add some comments.
117 This case was not one where the parties simply agreed that the issue between them was resolved and the applicant sought leave to withdraw. It is one where the applicant sought leave to withdraw on a particular ground namely “the direction to the Applicant under section 84A(1)(b) of the [Act] has been revoked. The Applicant no longer wishes to proceed with the application. The Respondent consents to the application being discontinued.”
118 The applicant’s outline of submissions of 19 March 2007 included that if the Full Bench was not of the view that the Commissioner had power to revoke the direction, then the Registrar would proceed with the enforcement application. Therefore, in those circumstances it was not simply a matter of the parties not wishing to proceed. The applicant’s desire not to proceed was conditional on whether the Full Bench is of the view that there is a power to revoke in these particular circumstances.
119 Had that not been the case, the Commission’s normal role of resolving disputes, finding practical solutions to real problems and promoting good will in industry would, in my view, have overtaken the requirement for the Full Bench to enter into an examination of the Commission’s powers. In those circumstances, where there is no such conditional withdrawal, unlike this case, then the Full Bench would not need to deal with this issue at all. Under normal circumstances in matters before this Commission, parties are not required to give or to justify their reasons for seeking to discontinue. However, the applicant having indicated that its desire to withdraw was conditional, the Full Bench is required to address the issue and therefore the consideration of the Commission’s power to revoke in these particular circumstances was necessary.
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