IN THE FEDERAL COURT OF AUSTRALIA JUDGMENT No. «8. Zsntul cocunde VICTORIA DISTRICT REGISTRY GENERAL DIVISION ~~ ~~ wv ww BETWEEN: MAYOR COUNCILLOR AND CITIZENS OF AND The Court THE CITY OF DONCASTER AND TEMPLESTOWE THE COURT: Sweeney, Keely and Ryan JJ. PLACE : Melbourne DATE : 23 June, 1987 REASONS FOR JUDGMENT NO. VG 101 of 1987 Applicant THE MINISTER FOR COMMUNITY SERVICES Respondent -4 APR 2005 "= LIBRARY "RNG The Administrative Appeals Tribunal ("the Tribunal") pursuant to s.45 of the Administrative Appeals Tribunal Act 1975, has referred to this Court a question of law formulated as follows:- "Whether section 39 of the Nursing Homes and Hostels Legislation Amendment Act 1986 ("the Amending Act") requires the Tribunal, after the commencement of that section and section 32 of the Amending Act, in considering an Application made before the commencement of those sections for review of a decision made and affirmed under sub-sections 3A(3) and 11A(4) of the Nursing Homes Assistance Act 1974 ("the Principal Act") before' the commencement of the sections 32 and 39 of the Amending Act, to apply - (a) the provisions of the Principal Act as in force immediately before the commencment of sections 32 and 39 of the Amending Act; (b) the provisions of the Principal Act as amended by Amending Act; or (c) the provisions of the Principal Act as amended in some other, and, if so, what, manner?". Section 39 of the Amending Act provides as follows - "39. Notwithstanding the amendments of the Principal Act made by sections 32 and 33, the Principal Act continues to apply, after the commencment of this section, in relation to applications for review by the Administrative Appeals Tribunal made before the commencement of this section". Sections 32 and 33 of the Amending Act provide - "32. Section 11A of the Principal Act is amended — (a) by omitting from sub-section (1) the definition of "reviewable decision" and substituting the following definition: 'reviewable decision" means a decision of the Minister, or of a delegate of the Minister, under sub-section 4(7), section 6, sub-section 9(1A) or (1B), section 11 or sub-section (2) of this sub-section.'; (b) by omitting from sub-section (2), 'not being a decision under sub-section 3A(1), (2), (3) or (4),'3 (c) by omitting sub-section (2A); and (d) by omitting from sub-section (5) for(2A)'. 33. Section 11B of the Principal Act is amended by omitting from paragraph (1)(a) 'or (2A), as the case may be'." The relevant parts of section 3A of the Principal Aet provide - "3A. (1) Upon application made in accordance with the appropriate authorized form by a person who is, or who proposes to become, the proprietor of a nursing home, the Minister may, in his discretion, by notice published in the Gazette, invite interested persons to apply, by such date, being not less than 28 days after the date of publication of the notice, as is specified in the notice, under whichever of sub-sections (2) or (3) is specified in the notice, for a certificate in respect of premises situated in an area specified in the notice. (2) ... (3) Upon application made in accordance with the appropriate authorized from in response to an invitation under sub-section (1) by the proprietor of an approved nursing home who proposes to make an alteration of addition to the premises occupied by the nursing home, the purpose of which is, or the effect of which will be, to enable the number of beds available in the nursing home for qualified nursing home patients to be increased, the Minister may, in his discretion, grant to the applicant a certificate in writing- (a) approving that alteration or addition; (b) stating that if, within the period of 12 months after the grant of the certificate, the alteration or addition so approved is completed in accordance with the specifications (if any) set out in the certificate and the applicant applies under sub-section 9(1) of this Act for the Minister to alter the conditions applicable to the nursing home by substituting for the number of beds determined in relation to the nursing home for the purposes of paragraph 4(6)(a) of this Act a number of beds not exceeding such other number as is specified in the certificate, that last-mentioned application will not be refused; and (c) in a case where the Minister considers it appropriate to do-stating that if the Minister so alters the conditions applicable to the nursing home, the admission of persons to the nursing home as qualified nursing home _ patients " (whether or not those patients occupy the beds to which the alteration or addition relates) will be in accordance with a special purpose of the nursing home specified in the certificate." The relevant parts of section 11A, of the Principal Act before the amendments effected by s.32 of the Amending Act, were in the following terms:- "11A. (1) In this section - "decision" has the same meaning as in the Administrative Appeals Tribunal Act 1975; Wreviewable decision" means a decision of the Minister, or of a delegate of the Minister, under sub-section 3A(1), (2), (3) or (4) or 4(2), (3), (3A0, (4), (5), (6), (7) or (10), section 6, 8, 9 or 11 or sub-section (2) of this section. (2) ... (2A) A person affected by a_ reviewable decision, being a decision under sub-section 3A(1), (2), (3) or (4), who is dissatisfied with the decision may, by notice in writing given to the Minister within the period of 28 days after the date of publication of the notice under sub-section 3A(1) or (12) in relation to the decision, request the Minister to reconsider the decision.'; (3) ... (4) Upon the receipt of the request, the Minister shall reconsider the decision and may affirm or revoke the decision or vary the decison in such manner as he thinks fit. (5) ... (6) ... (7) Applications may be made to the Administrative Appeals Tribunal for review of- (a) reviewable decisions that have been affirmed or varied under sub-section (4); Or (b) a decision under sub-section (4) to revoke a reviewable decision." As set out above the Amending Act, inter alia, omitted sub-s (2A) and references thereto thereby removing the right of a person affected by a decision under' s.3(A)(3) from seeking a reconsideration by the Minister. The history of the matter as set out in facts which preface the question of law may be summarised as follows - 1. By application dated 21 December 1984 the applicant applied for a Certificate of Approval in Principle under sub-s 3A(3) of the Principal Act for the addition of thirty beds to the nursing home owned and operated by it. 2. On 31 January 1986 the delegate of the respondent refused to grant the Certificate which decision was notified to the applicant by letter dated 28 February 1986. 3. By letter dated 27 March 1986 the applicant requested the respondent to reconsider the decision of the delegate. 4. By letter dated 18 September 1986 the respondent advised the applicant that he affirmed the decision. 5. On 15 October 1986 the appliant applied to the Tribunal for a review of the decision of the delegate. 6. The Amending Act was assented to on 24 November 1986 when ss.32 and 39 came into operation. It is common ground between the parties that s.39 of the Amending Act is effective to preserve the application for review by the Tribunal which was instituted by the applicant on 35 October 1986. However, the issue which the framers of the question set out above seek to have resolved is what legislative provisions should be applied by the Tribunal in hearing and determining the application. In our view it is inappropriate for the Court to attempt to resolve that issue at this stage of the proceedings in the Tribunal, and upon the present formulation of what is said to be the question of law. The facility for the Tribunal to refer a question of law to this Court is afforded by s.45 of the Administrative Appeals Tribunal Act which provides: "45(1) The Tribunal may, of its own motion or at the request of a party, refer a question of law arising in a proceeding before the Tribunal to the Federal Court of Australia for decision but- (a) in the case of a proceeding before the Tribunal constituted by 2 or more members at which a presidentail member presides-a question shall not be so referred without the concurrence of that presidential member; or (b) in the case of a proceeding before the Tribunal at which a presidential member does not preside-a question shall not be so referred without the concurrence of the President. (2) The Federal Court of Australia has jurisdiction to hear and determine a question of law referred to it under this section and that jurisdiction shall be exercised by that Court constituted as a Full Court. (3) Where a.question of law arising in any proceeding has been referred to the Federal Court of Australia under this section, the Tribunal shall not, in that proceeding- (a) give a decision to which the question is relevant while the reference is pending; or (b) proceed in a manner, or make a decision, that is inconsistent with the opinion of the Federal Court of Australia on the question.". By s.3 of the same Act "Tribunal" means "the Administrative Appeals Tribunal established by this Act and includes a member or member exercising powers of the Tribunal". By s.19, the powers of the Tribunal are exercisable by it in Divisions and by s.20 the President of the Tribunal is empowered to give directions as to the arrangement of the business of the Tribunal and as to the- persons who are to constitute the Tribunal for the purpose of particular proceedings. Guidance for the exercise of that power is afforded by s.20(3) which provides:- "In giving a direction as to the persons who are to constitute the Tribunal for' the purposes of a particular proceeding, the President-— (a) shall have regard to the degree of public importance or complexity of the matters to which that proceeding relates; and (b) shall have regard to the status of the position or office held by the person who made the decision that is to be reviewed by the Tribunal.". Moreover the number of ways in which the Tribunal may be constituted is limited as follows by s.21(1):- "Subject to sub-section (1A) and to any other provision made in this Act or in any other enactment with respect to the constitution of the Tribunal in relation to particular proceedings, the Tribunal shall, for the purpose of the exercise of its powers in relation to a matter, be constituted by- (aa) a presidential member who is a Judge and 2 other members (not being Judges); (a) a Deputy President and 2 non-presidential members; (b) a presidential member alone; (c) 3 non-presidential members of whom at least one is a senior member; or (d) a non-presidential member alone.". On 3 April 1987 Mr. Deputy President Thompson decided of his own motion to refer the present question to this Court in the course of a directions hearing of the kind contemplated by s.33(2). That sub-section provides:- "For the purpose of sub-section (1), directions as to the procedure to be followed at or in connection with the hearing of a proceeding before the Tribunal may be given- (a) where the hearing of the proceeding has not commenced-by the President or by a member authorized by the President to give directions for the purposes of this paragraph; and (b) where the hearing of the proceeding has commenced-by the member presiding at the hearing or by any other member authorized by the member presiding to give such directions.". If we assume, without deciding, that a member of the Tribunal authorized by the President to give directions as envisaged in s.33(2) constitutes the Tribunal for the purpose of exercising the power to refer a question of law under s.45, it will rarely, if ever, be appropriate as a matter of discretion for that power to be exercised in the course of, or as a result of a directions hearing. For one thing the Tribunal may be differently constituted for the hearing of the substantive application. It may, for example, be constituted in accordance with s.21(1)(aa) by a presidential member who is a Judge and two other members, one or both of whom are legally qualified. The Tribunal so constituted in the light of its knowledge of-the relevant facts may well chosse to make its own decision on any question of law which may arise. Indeed the Tribunal has generally chosen to do so, however difficult the question of law may have appeared to be. In the second place, the resolution at first instance of questions of law by the Tribunal has the advantage of expedition and of leaving the decision of whether to appeal against that resolution to be made by the unsuccessful party having regard to the financial and other consequences for that party of an adverse decision. Experience suggests that an assessment of that kind can only usefully be made by such a party. Thirdly, the Tribunal constituted to hear the substantive application will usually be much better placed to identify when, and in what factual context a question of law should be referred if that course becomes appropriate. The prematurity of the present reference is demonstrated by the the fact that the TRribunal has not yet heard any evidence, or received any agreed statement of facts from the parties. Moreover, it has been accepted before us by Counsel for both the applicant and the respondent that, the application for review will not be concluded by the resolution in one way or another of the present question of law. Accordingly we decline to answer the question and leave the application to continue its normal course before the Tribunal as it may be constituted by the President.