I am often surprised that there are so many cases about defective “statutory notices” and it really shows that any notice your client receives should be scrutinised to make sure it is compliant.
In Lewis v Minister [2022] FCA 205 (another 501CA character cancellation matter) two invitations to make representations to revoke the cancellation were issued, some few weeks apart. The invitations were materially identical except for their date. Both required receipt from the applicant of any representations within 28 days. The applicant made representations within 28 days of the second invitation, but not the first. The Minister’s delegate treated those representations as having being made within the period but refused to revoke the cancellation. On review, the Minister changed his position and argued that the s 501CA(4) power to revoke had not in fact been enlivened, because representations should have been made within 28 days of the first invitation (there being no power to issue a second invitation and so practically extend the 28 day period).
Allsop CJ found both notices were invalid because they wrongly specified the time for response as being “received within 28 days”. The Full Court in Stewart v Minister [2020] FCAFC 196 held that the representations responding to the invitation referred to in s501CA(3)(b) be “made” within the 28-day period does not mean “received” but “dispatched” (by the Applicant).
Stewart has been applied in in EPL20 v Minister [2021] FCAFC 173 (which was subject to an unsuccessful special leave application) and Sillars v Minister [2021] FCAFC 174.
One of the admin law thorny issues (which wasn’t necessary to decide) related to the AAT which affirmed the revocation because it found that the representations were out of time (based on the first notice). However, as Allsop CJ points out, did it have power to review an invalid decision at all?
Creative commons acknowledgment for the photograph.
