01 Sep 2008

Remaking administrative decisions - when can it be done?

by John Carroll

A decision can be remade if this is consistent with the legislation that is the source of decision-making power or if the decision contains a jurisdictional error.

The law does not limit the remaking of a decision to instances where it has been brought before a court for judicial review. In this article, we look at when an administrative decision can be remade by a decision-maker. Even if the original decision is validly made, it still might be appropriate to remake the decision if this action is consistent with the legislation that is the source of decision-making power, is warranted in the circumstances, and promotes good administration and fairness.

Jurisdictional error

Despite considerable judicial and academic attention to the issue of decision-makers’ capacity to remake decisions, there is a lack of clarity surrounding the circumstances in which this can occur. When it appears that a decision might have been "wrong", the first issue to consider is whether it was affected by jurisdictional error. If it was, this may mean that the decision can be ignored or remade.

A jurisdictional error may arise if the decision-maker has not properly exercised their powers or duties under the relevant legislation. For example, in SZFDE v Minister for Immigration and Citizenship (2007) 237 ALR 64, the Refugee Review Tribunal had found against the applicant in her claim for refugee status without the applicant having attended a hearing. Although the Tribunal had invited her to the hearing, her (disqualified) migration agent had fraudulently advised her not to attend. The Court held that on the particular facts of this case, the agent’s fraud led the Tribunal to fail to properly discharge its statutory functions. The Tribunal’s jurisdiction remained constructively unexercised and the decision was invalid.

Finding a jurisdictional error enables the courts to circumvent the traditional principle of functus officio (that a decision-making power is exhausted once exercised). As the relevant jurisdiction is constructively unexercised, there is nothing to prevent it from being exercised subsequently. Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 187 ALR 117 is the leading authority on this issue. In that case, the Immigration Review Tribunal cancelled Mr Bhardwaj’s student visa. At the time of making the decision, because of an administrative oversight by the Tribunal, it was not aware that Mr Bhardwaj had requested an adjournment of the hearing because of illness. Could it remake the decision when it discovered this fact? The High Court found that the initial failure to provide a hearing breached the procedural fairness requirements of the Migration Act 1958, constituting a failure to properly exercise the decision-making power. As a result of this jurisdictional error, the first decision could be ignored. The second decision was validly made.

While the circumstances in Bhardwaj enabled the Tribunal to ignore the first decision, a decision flawed by jurisdictional error may still have practical effect. The legal and factual consequences of a decision, if any, will depend upon the particular statute (Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 204 ALR 55).

Remaking decisions that are simply "wrong"

Even if a decision does not appear to be affected by jurisdictional error, it may still be open to the decision-maker to remake it. This will primarily depend upon the relevant legislation.

As a matter of legal principle, there is nothing to automatically prevent the remaking of a "wrong" decision that is, nonetheless, within jurisdiction. Further, in some circumstances a rigid application of the principle of functus officio will be inconsistent with good administration and fairness.

Where circumstances appear to warrant a new decision being made, the central question is whether the legislation that confers the decision making power contains an intention to permit or prohibit reconsideration. Section 33 of the Acts Interpretation Act 1901 is a useful tool in this context, particularly subsection (1) which says "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." Accordingly we should not presume that a power can only be exercised once. Rather, we must determine whether the legislation reveals that this was Parliament’s intention, or not.

In undertaking the task of statutory interpretation, first consider whether the legislation provides an express power to remake the decision. If there is no express power, consider whether the legislation implies that the decision can be remade. In Comptroller-General of Customs v Kawasaki Motors Pty Ltd (1991) 103 ALR 661, Justice Beaumont identified in the relevant legislation implied powers to rescind and remake a decision, the validity of which had been challenged on substantial grounds. These powers were implied because the removal of genuine doubts about the validity of decisions was necessary for the effective operation of the legislative scheme. The exercise of the power to make a new decision impliedly exercised a power to revoke the previous one. While the case related to legal validity, this analysis is also relevant to circumstances in which there are substantial doubts about the merits of a decision. Legislation may contain an implied power to remake a decision the merits of which are in substantial doubt, if this is necessary to ensure the effective operation of the scheme.

Alternatively, by reference to section 33(1) of the Acts Interpretation Act 1901, the legislation may reveal an intention that the decision making power should not be exercised more than once. This issue of contrary intention was considered in Minister for Immigration and Multicultural and Indigenous Affairs v Watson (2005) 88 ALD 115. That case related to the validity of decisions made by the Minister to cancel, reinstate and again cancel Mr Watson’s visa under section 501(2) of the Migration Act. In determining that the subsequent exercises of power were invalid, the Court found that the Act did not contain an express power to remake the decision. Furthermore, it revealed a contrary intention, so that the power in section 501(2) could only be exercised once. Thus, the Minister did not have the power to revoke the original cancellation decision. The Court came to this conclusion by considering the immediate statutory context in section 501 of the Migration Act, as well as provisions regulating visas more generally.

When is it appropriate to remake a decision?

If a decision is unsuitable and the legislation does not prevent it from being remade, the next issue is whether remaking the decision is preferable in the factual circumstances and promotes good administration and fairness. The following points may provide guidance:

  • Consider the operational effect of the decision. If not disturbed, might the decision have harsh, unwarranted or unintended consequences?
  • Determine the attitude of the affected party. Remaking the decision may assist in avoiding unnecessary litigation.
  • Find out whether the decision has wider implications. Who is likely to be affected if the decision is remade? Remaking the decision might be more appropriate if this will not adversely affect anyone else.
  • Look at whether reconsideration will foster good administration. Take into account, for example, finality, consistency, fairness, flexibility and accountability.


The existence of jurisdictional error in a decision may allow it to be reconsidered. In addition, there is no legal principle that prevents a decision that is within jurisdiction from being reconsidered and, if its merits are substantially flawed, replaced. In all cases, however, a decision can only be remade if this is consistent with the legislation that is the source of decision-making power. Careful consideration should also be given to the factual background and competing principles of good administration before a decision is remade. Making a new decision should seek to promote the efficacy of the legislative scheme and fair outcomes for all involved.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.