AAT bound to consider Direction in force at time of AAT application?

Section 7 of the Acts Interpretation Act 1901 (Cth) provided as follows:

Effect of repeal or amendment of Act

…

No effect on previous operation of Act or part

(2)    If an Act, or an instrument under an Act, repeals or amends an Act (the affected Act) or a part of an Act, then the repeal or amendment does not:

…

(c)    affect any right, privilege, obligation or liability acquired, accrued or incurred under the affected Act or part; or

(d)    affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the affected Act or part; or

(e)    affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability …

Any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the affected Act or part had not been repealed or amended.

Note: The Act that makes the repeal or amendment, or provides for the instrument to make the repeal or amendment, may be different from, or the same as, the affected Act or the Act containing the part repealed or amended.

Interpretation

(3)    A reference in subsection (1) or (2) to the repeal or amendment of an Act or of a part of an Act includes a reference to:

(a)    a repeal or amendment effected by implication; and

(b)    the expiry, lapsing or cessation of effect of the Act or part; and

(c)    the abrogation or limitation of the effect of the Act or part; and

(d)    the exclusion of the application of the Act or part to any person, subject-matter or circumstance.

(4)    A reference in this section to a part of an Act includes a reference to any provision of, or words, figures, drawings or symbols in, an Act.

Some of the questions to the Full Court of the Federal Court (FCAFC) were as follows:

Question 1: Even if Ministerial Directions issued under s 499(1) of the Migration Act 1998 (Cth) are neither legislative instruments nor notifiable instruments, does the Acts Interpretation Act 1901 (Cth) still apply to the interpretation of those Direction as if they were an Act and as if each of their provisions were a section of an Act?

Question 2: Is there a common law presumption of statutory construction “that a statute is not to be read as disturbing substantive rights, vested as the result of past events, unless it clearly appears that it is intended to do so”?

Question 3: If the answer to Question 2 is 'yes', is there little if any substantive difference between the common law presumption and s 7(2) of the Acts Interpretation Act 1901 (Cth) in situations to which s 7(2) applies?

Question 4: In relation to the concepts of “obligation” and “legal proceedings” that appear in s 7(2) of the Acts Interpretation Act 1901 (Cth), can it be said that "the Tribunal would only have “acquired” or “incurred” an “obligation” to determine [the Appellant's] application for merits review in accordance with Direction 65 (as opposed to any later Direction in force at the time of the decision) if [the Appellant] had an accrued “right” to have the review determined in accordance with Direction 65, and vice versa"?

Question 5: Is the effect of s 7(2)(e) Acts Interpretation Act 1901 (Cth) to provide for the continuation of legal proceedings in which preserved rights or obligations are in issue?

Question 6: Can it be said that no question of construing the Directions so as to preserve a “legal proceeding” can arise in this case, as "the proceedings before the Tribunal are provided for by s 500(1)(b) of the Migration Act and by the AAT Act, not by any Direction, and there has been no repeal or amendment of s 500(1)(b)"?

Question 7: Is the Tribunal required to apply the Direction in force at the time when the application for merits review is made, instead of the Direction in force at the time when the Tribunal makes its decision?

Question 8: Is the Minister required to apply the Direction in force at the time when the application for merits review is made, instead of the Direction in force at the time when the Tribunal makes its decision?

Question 9: Does the exercise of the power in s 501CA(4) of the Migration Act 1958 (Cth) involve the formation of a subjective evaluative judgement by the decision-maker which is highly analogous to the discretion exercisable under s 501(1)?

Question 10: Can it be said that "a material failure to comply with a clear obligation imposed by the applicable Direction will be jurisdictional error, because such obligations are inviolable limitations imposed by s 499(2A)" of the Migration Act 1958 (Cth)?

Question 11: Can it be said that “to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case” would “be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker”?

Question 12: Does 499(2) of the Migration Act 1958 (Cth) expressly provide what would otherwise be implicit, namely that s 499(1) does not empower the Minister to give directions that would be inconsistent with the Migration Act?

Question 13: Can Ministerial Directions require "a decision-maker to consider certain matters which they would otherwise be free to ignore; to give more or less weight to certain matters which they would otherwise be entitled to weigh as they think fit; or to treat as serious certain matters which they might otherwise regard less seriously"?

Question 14: When selecting the day on which a new Direction is to come into effect, is it open to a Minister to delay the commencement of the Direction having regard to practical considerations such as s 500(6L) of the Migration Act 1958 (Cth), which required the AAT to make its decision within a strict time limit?

Question 15: Could it realistically be suggested that a person might “order their affairs” differently by refraining from committing offences involving domestic violence, in reliance on the content of a particular Ministerial Direction?

Question 16: Can the Tribunal remit a matter for reconsideration, instead of re-exercising the discretion under s 501(1) of the Migration Act 1958 (Cth) for itself?

The FCAFC answered those questions as follows: