Jurisdiction - amendments to Judiciary Act and to Federal Court Rules ~- retrospective operation of s5.39B and Order 54 - whether amendments attached new legal consequences - identification of original jurisdiction of Federal Court as including any matter in which a writ of mandamus is sought against an officer of the Commonwealth - whether amendment procedural Judiciary Act 1903 s.39B Federal Court Rules 0.54A, r.26 No. WA G15 of 1984 APPLICATION for a Writ of Mandamus against ROLAND PATRICK HASSELL, Deputy President, DESMOND MATTHEW TEHAN, Services Member and STANLEY McLEISH HARRIS, Member, a Repatriation Review Tribunal ex parte: HONORA MARY PRIDE No. WA G16 of 1984 APPLICATION for a Writ of Mandamus against ROLAND PATRICK HASSELL, Deputy President, DESMOND MATTHEW TEHAN, Services Member and STANELY McLEISH HARRIS, Member, a Repatriation Review Tribunal ex parte: ELYS FRANCES NORMAN Toohey J. Perth 9 March 1984 IN THE FEDERAL COURT OF AUSTRALTA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION JUDGE MAKING ORDER DATE OF ORDER WHERE MADE wee eww No. WA G15 of 1984 APPLICATION for a Writ of Mandamus against ROLAND PATRICK HASSELL,Deputy President, DESMOND MATTHEW TEHAN, Services Member and STANLEY McLEISH HARRIS, Member, a Repatriation Review Tribunal Ex Parte HONORA MARY PRIDE Prosecutor No. WA G16 of 1984 APPLICATION for a Writ of Mandamus against ROLAND PATRICK HASSELL, Deputy President, DESMOND MATTHEW TEHAN, Services Member and STANELY McLETSH HARRIS, Member, a Repatriation Review Tribunal Ex Parte ELYS FRANCES NORMAN Prosecutor oO R D FE R Toohey J. 9 March 1984 Perth THE COURT ORDERS THAT: The time for making an application for a writ of mandamus in terms of the application annexed to the affidavit of Gavin David Crocket filed in the proceedings is, in the case of each of these matters, extended until 16 March 1984. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION CORAM: TOOHEY J. 9 March 1984 No. WA G15 of 1984 APPLICATION for a Writ of Mandamus against ROLAND PATRICK HASSELL,Deputy President, DESMOND MATTHEW TEHAN , Services Member and STANLEY McLEISH HARRIS, Member, a Repatriation Review Tribunal Ex Parte HONORA MARY PRIDE Prosecutor No. WA G16 of 1984 APPLICATION for a Writ of Mandamus against ROLAND PATRICK HASSELL, Deputy President, DESMOND MATTHEW TEHAN, Services Member and STANELY McLEISH HARRIS, Member, a Repatriation Review Tribunal Ex Parte ELYS FRANCES NORMAN Prosecutor REASONS FOR JUDGMENT Order 54A of the Federal Court Rules came into force on 31 January 1984. That order deals with mandamus, prohibition and an injunction against an officer or officers of the Commonwealth. Order 54A ¢.26 requires an application for a writ of mandamus to a tribunal to hear and determine a matter to be made "within 28 days of the date of the refusal to hear or within such further time as is, under special circumstances, allowed by the Court or a Judge". The Court has before it two applications for extension of time in which to file an application for a writ of mandamus against three persons who together comprise a Repatriation Review Tribunal under the provisions of the Repatriation Act 1920. The conduct under challenge took place on 17 November 1983, hence the need to obtain an extension of time. The conduct in each case was a refusal to state a case to the Federal Court under sub-s.107VZZG(1) of the Repatriation Act and also concerned the compellability of each prosecutor as a witness at the instance of the Tribunal. Those matters were the subject of appeals to this Court pursuant to s.107VZZH of the Repatriation Act but objection was taken that there was no "decision" from which an appeal could lie. Apparently accepting that there is some force in the objection, the prosecutors now seek to proceed under 0.54A. The members of the Tribunal, who will be the respondents to an application for a writ of mandamus if an extension of time 1s granted, do not oppose an extension of time and I am satisfied that there are special circumstances why an extension should be granted. The machinery of 0.54A was simply not available on 17 November 1983. My reason for reserving decision on each of the applications was some concern as to whether, having regard to the timing of events, the Court had power to do what was asked. Order 54A came into existence to implement s.39B of the Judiciary Act 1903, sub-s.(1) of which reads: "The original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth". Section 39B was introduced as part of Schedule 1 to the Statute Law (Miscellaneous Provisions) Act (No. 2) 1983 which was expressed to come into operation on the 28th day after the day on which it received the Royal Assent. It was assented to on 22 November 1983; hence it came into operation on 20 December. Thus, on 17 November 1983, which is the date of the conduct in respect of which mandamus is sought, there was no jurisdiction in the Federal Court to grant that relief. The question is - do s.39B and 0.54A operate so that this Court may, by extension of time, review conduct anterior to the grant of jurisdiction? A useful starting point is the dictum of Fullagar J. in Fisher v. Hepburn Ltd. (1960) 105 CLR 188 at p.194: "There can be no doubt that the general rule is that an amending enactment - or, for that matter, any enactment - is prima facie to be construed as having a prospective operation only. That is to say, it is prima facie to be construed as not attaching new legal consequences to facts or events which occurred before its commencement". In my view, to grant these extensions of time, so as to allow applications for mandamus to be brought, is not to give s.39B of the Judiciary Act or 0.54A of the Federal Court Rules retrospective operation. Section 39B does not create a new right or obligation or impair an existing right or obligation. It does not, in the language of Fullagar J., attach new legal consequences to events occurring before its commencement. What it does is to identify the original jurisdiction of this Court as including any matter in which a writ of mandamus is sought against an officer of the Commonwealth. In so doing it confers on this Court a jurisdiction which already exists in the High Court by virtue of $.38 para. (e}) of the Judiciary Act. Counsel for the prosecutors submitted that s.39B was merely procedural and that therefore, in accordance with a line of authority which includes Maxwell v. Murphy (1956-1957) 96 CLR 261, there was no presumption against retrospective operation. In that case Fullagar J. commented at p.286: "A consideration of the cases generally cited in this connexion has led me to think that the distinction is probably best stated by saying that it is between statutes which create or modify or abolish substantive rights or liabilities on the one hand and statutes which deal with the pursuit of remedies on the other hand. In the former class of case there is a presumption against retrospective operation in the sense explained above. In the latter class of case there is no such presumption: on the contrary, the presumption is that the enactment applies in all proceedings commenced after it became law, and it may be right to construe it as applying even in proceedings commenced before it became law". His Honour acknowledged that the distinction did not represent "a logical dichotomy" but pointed out that "it has been accepted and applied again and again". Thus, while there are difficulties in the way of describing s.39B as procedural, in the ordinary sense of that word, the section does, I think, deal with the pursuit of remedies rather than the creation of substantive rights. It presupposes that there is conduct in respect of which mandamus or prohibition or an injunction would ordinarily lie and confers jurisdiction upon the Federal Court to deal with such conduct. In my view, once s.39B came into operation it empowered the Federal Court to entertain an application of the sort there mentioned, even in respect of conduct anterior to the grant of jurisdiction. Of course 0.54A ¢r.26 imposes a time limitation on an application for a writ of mandamus to a tribunal but that is no bar in the circumstances of the present cases. There will be in each case an order in terms of para. 1 of the application for extension of time and an order for leave to file an application for a writ of mandamus in terms of the form of application annexed to the affidavit of Gavin David Crocket filed in the proceedings. I certify that this and the five preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Toohey Associate Dated: 9 March 1984