Re Hospital Benefit Fund of Western Australia Inc v the Minister of Health, Housing and Community Services [1992] FCA 599; (1992) 111 ALR 1 (1992) 39 FCR 225, (1992) 16 Aar 566 (1992) 28 (4 December 1992)

FEDERAL COURT OF AUSTRALIA

Re: THE HOSPITAL BENEFIT FUND OF WESTERN AUSTRALIA INC
And: THE MINISTER FOR HEALTH, HOUSING AND COMMUNITY SERVICES
No. WA G99 of 1992
FED No. 911
Number of pages - 21
Statutory Interpretation
[1992] FCA 599; (1992) 111 ALR 1
(1992) 39 FCR 225, (1992) 16 AAR 566
(1992) 28 ALD 50

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Wilcox(1), Burchett(1), French(1) JJ.

CATCHWORDS

Statutory Interpretation - Hospital Benefit Fund - construction of s. 78 of the National Health Act 1953 - whether power conferred upon the Minister by s. 78(4) is a power which must be exercised within a reasonable time - basis for construing a statutory power as subject to an unexpressed implication - change of rules of Hospital Benefit Fund by the adoption of a waiting period of five years for IVF cases - power of Administrative Appeals Tribunal to determine whether the decision being reviewed was invalid in law - dictum that where such a question arises it may well be appropriate for the Tribunal to leave an applicant to his judicial remedy or refer a question of law to the court under s. 45 of the Administrative Appeals Tribunal Act - whether the Tribunal should have considered whether the correct or preferable decision, rather than a decision under s. 78, was to leave the Minister free to give a direction under s. 73BE of the National Health Act - whether s. 73BE authorizes a direction fixing a waiting period for a benefit - whether under s. 78(4)(b) the Minister is concerned with the effect of the change of the rules only as at the date of the decision - whether if the Minister forms the opinion specified under s. 78(4) the making of a declaration necessarily follows.

Administrative Appeals Tribunal Act 1975, ss. 25, 43, 45.

National Health Act 1953, ss. 73BE, 74B, 78.

Freeman v. Secretary, Department of Social Security (1988) 19 FCR 342.

Collector of Customs (NSW) v. Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307

Cooper Brookes (Wollongong) Pty Ltd v. Commissioner of Taxation of the

Commonwealth of Australia [1981] HCA 26; (1981) 147 CLR 297

Saraswati v. R. [1991] HCA 21; (1991) 100 ALR 193

HEARING

PERTH
4:12:1992

Counsel for the Applicant: Mr D.H. Solomon of Messrs Solomon Brothers

Solicitors for the Applicant: Messrs Solomon Brothers

Counsel for the Respondent: Mr D.R. Williams QC with Mr S. Bohjani

Solicitor for the Respondent: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:
1. The appeal be allowed with costs.

2. The decision of the Administrative Appeals Tribunal be set aside.

3. The matter be referred back to the Administrative Appeals Tribunal to be dealt with according to law.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

DECISION

WILCOX, BURCHETT AND FRENCH JJ. The National Health Act 1953 contains, among other things, a code for the operation of hospital benefit funds, and for their regulation. By s. 67, what is described as "health insurance business" is strictly confined to registered organizations. Section 68 and succeeding sections provide for the registration of these organizations. In particular, by s. 72A(c), the Minister shall take into account "the rules of the organization relating to (its) fund or (its) funds and, in particular, whether those rules contain appropriate provisions, having regard to the provisions of (the) Act". Section 73 makes it clear that the grant of an application for registration is discretionary and "subject to such terms and conditions (if any) as the Minister thinks fit". Upon registration, the organization becomes subject, not only to conditions the Minister sees fit to impose at that time, but also to statutory conditions, including those set out in Schedule 1 to the Act and referred to in s. 73BA. In addition, s. 73B(1) provides:
"The Minister may, at any time:

(a) revoke or vary a condition imposed by the Minister as a
condition to which the registration of an organization is
subject; or
(b) impose a condition or a further condition as a condition to
which the registration of an organization is subject."

2. Yet further powers of the Minister include a power to give directions to a registered organization, under s. 73BE(1), with respect to a number of matters including the following:

"(b) the scope and level of benefits that are to be available to
contributors, or to contributors included in a class of
contributors, to a health benefits fund conducted by the
organization".

Section 74B makes it clear that a direction prevails over the constitution and rules of the organization, as does a condition of registration, whether imposed initially or under s. 73B.

3. It is against the background of the tight regulation of registered organizations by these and other provisions of the Act that s. 78, the central provision with which this appeal is concerned, must be understood. Section 78 relevantly provides:

"(1) If, after the registration of an organization under this Part,
the registered organization changes:
(a) the constitution of the organization;
(b) the articles of association of the organization; or
(c) the rules of the organization;
the registered organization shall, within 7 days after the change is
made, furnish to the Secretary notification, in writing in a form
approved by the Minister, of the change.
(2) The notification shall:
(a) identify the change; and
(b) show that the change is consistent with this Act and the
conditions of registration of the organisation.
(3) Where subsection (1) or (2) is not complied with in relation
to a change, that change shall not be taken to have come into
operation.
(4) Where the Minister is of the opinion that a change:
(a) would or might result in a breach of this Act or of a
condition of registration of an organisation;
(b) imposes an unreasonable or inequitable condition affecting the
rights of any contributors; or
(c) might, having regard to the advice of the Council, adversely
affect the financial stability of a health benefits fund;
the Minister may, by declaration in writing, declare that the change
shall not be taken to have come into operation.
(5) The Secretary shall tell the Council of any declaration made
by the Minister under paragraph (4)(c).
(6) Where the Minister makes a declaration under subsection (4) in
relation to a notification by an organisation, the Secretary shall
tell the organisation of the declaration."

4. The first question in the appeal, which can be considered without any reference to its particular facts, is whether the power conferred upon the Minister by s. 78(4) is a power which must be exercised within a reasonable time of notification of the change of the constitution, articles of association or rules of the organization, or whether the changed provision remains permanently vulnerable to an adverse decision of the Minister. The question must be answered upon the true construction of the section, in its setting, and having regard to the integrity of the scheme for which the Act provides.

5. Many considerations seem to us to combine in pointing to the answer. Although the argument concentrated on sub-s. 4(b), s. 78 must be considered as a whole. Its subject matter is change, a concept related to a time, whether precise or approximate. The changes in question are fundamental; they include, not only the rules of the organization, but its constitution and articles of association. The legislature cannot have contemplated that these would be left uncertain for possibly years. That the legislature in fact intended to avoid the unnecessary persistence of doubt is emphasised by the provision for extremely prompt notification. If notification is not given, or does not comply with the requirements of the Act, the "change shall not be taken to have come into operation". These words must mean that the change did not have effect. It is impossible to imagine that the legislature intended a change in, for example, the constitution, which was not consistent with the Act or with the conditions of registration of the organization, should have operated for any period. The expression, "to have come", involving the past participle "come", was plainly used in its strict grammatical sense. Of course, the extremely brief time limit of seven days ensures that there will be no significant period when, because of a failure to give a notice, the terms of the constitution, articles or rules may be in doubt. Sub-section (4) uses the same language in expressing the result of a declaration by the Minister - it is a declaration "that the change shall not be taken to have come into operation".

6. Each of the opinions, any one of which is a sufficient condition of the power to make a declaration, is expressed with the same sense of immediacy. None of them refers to what has happened, as would be natural if the forming of an opinion after some period of operation of the change were contemplated by the legislature. Under para. (a) the Minister forms an opinion whether a breach of the Act or of a condition of registration "would or might result", not whether any has resulted; under para. (b) he considers whether the change "imposes an unreasonable or inequitable condition affecting the rights of any contributors", not whether any contributor has suffered a loss by reason that his rights have been affected; and under para. (c) the Minister considers the possibility of adverse effect on the financial stability of a fund, not whether there has been any effect. The last matter is perhaps particularly significant, since the Minister, if proceeding on that basis, has to have regard to the advice of the Council established by s. 82B; if the legislation contemplated anything other than advice given prospectively and before the change had had time to demonstrate its actual effects, the use of the expression "might ... adversely affect", rather than "has affected or might adversely affect", would seem very unlikely. The choice, too, of the expression "the change", rather than an expression referring to the provision the subject of the change, indicates what the draftsman has in mind - a declaration nullifying "a change" at a time before that when it would be appropriate to refer to the impact of the declaration upon the constitution, articles or rules. Consistently with this dynamic perception of the Minister's intervention, not as affecting a change which has been made so as to become entrenched, even for a brief period, in the constitution, articles or rules, but as intercepting the operation of the change, the declaration is described in sub-s. (6) as being "in relation to a notification by an organization"; it is not even described as being in relation to a change in its constitution, articles or rules. The occasion of the declaration is not something in the constitution, articles or rules, which happens to have been inserted there by a change, but is the notification itself.

7. The language of the section is thus quite contrary to what would be expected if Parliament intended to create anything other than a power to be exercised promptly upon receipt by the Minister of the requisite notification. Furthermore, the expression of the section in this way is consistent with the scheme of the legislation. The Act makes provision by the scheme which we have briefly outlined, and particularly by s. 68A(b), ensuring that the Minister will have been able to satisfy himself concerning the constitution, articles and rules (and shall in particular have taken the rules into account under s. 72A(c)) at the time of registration of the organization. The Act also provides that the Minister shall be afforded an opportunity to prevent any change in the constitution, articles or rules coming into effect in the circumstances set out in s. 78. Neither in the one case nor in the other is there a specific power to delete what has once become a provision of the constitution, articles or rules of a registered organization, upon the grounds set out in s. 78(4). To construe the sub-section as conferring such a power, uniquely in the case of a provision introduced by amendment, would create an unaccountable disharmony. It would also do violence to the language of s. 78, which plainly contemplates a power to prevent an amendment ever coming into operation, not a power to delete a provision which has come into operation.

8. In the case alike of an original provision and of an amended provision, which has come into force, there are remedies provided by the legislation. The Minister may act under s. 73B(1), or under s. 73BE(1), that is to say, he may impose a condition, or he may give a direction, which in either case will prevail over the constitution, articles and rules of the organization.

9. Although s. 78 does not contemplate the removal, from the constitution, articles or rules of an organization, of a provision which has had some period of operation, the question remains whether the veto upon the coming into effect of a change, for which it does provide, may be the subject of indefinite delay. That would be a highly inconvenient view. It would mean that the organization, having notified the Minister in accordance with the Act, would thereafter always have to conduct its affairs under the sword of Damocles of the possible formation of an adverse ministerial opinion. In the case of some rule changes, this might be very destabilizing. If the Minister is not bound to form his opinion within a reasonable time, the organization could do nothing about it. But upon a long delayed opinion being formed, the disallowance ab initio which would be involved might lead to the necessity to reassess numerous claims spanning a period of, perhaps, years.

10. When all these factors are taken into account, we cannot entertain any doubt that the power conferred by s. 78 is subject to an implied limitation that the declaration in writing of the Minister referred to in sub-s. (4) "in relation to a notification by an organization" shall be made within a reasonable time of receipt of the notification. This is implicit both in the language of s. 78 and in the scheme of which it forms part. We do not think this reading should be regarded as the solution to a difficult problem, or as involving any straining of the language of the section. On the contrary, we think all the factors to which we have pointed make the intention of the provision quite plain. If, however, it be thought that authority is needed for such an approach, then that authority is to be found in the joint judgment of Mason and Wilson JJ. in Cooper Brookes (Wollongong) Pty Ltd v. Commissioner of Taxation of the Commonwealth of Australia [1981] HCA 26; (1981) 147 CLR 297 at 320-321. As their Honours there remark, the rules of statutory interpretation are "no more than rules of common sense". In finding an unexpressed implication in the statutory provision they had to construe in that case, they said:

"If the judge applies the literal rule it is because it gives
emphasis to the factor which in the particular case he thinks is
decisive. When he considers that the statute admits of no
reasonable alternative construction it is because (a) the language
is intractable or (b) although the language is not intractable, the
operation of the statute, read literally, is not such as to indicate
that it could not have been intended by the legislature.
On the other hand, when the judge labels the operation of the
statute as 'absurd', 'extraordinary', 'capricious', 'irrational' or
'obscure' he assigns a ground for concluding that the legislature
could not have intended such an operation and that an alternative
interpretation must be preferred. But the propriety of departing
from the literal interpretation is not confined to situations
described by these labels. It extends to any situation in which for
good reason the operation of the statute on a literal reading does
not conform to the legislative intent as ascertained from the
provisions of the statute, including the policy which may be
discerned from those provisions.
Quite obviously questions of degree arise. If the choice is
between two strongly competing interpretations, as we have said, the
advantage may lie with that which produces the fairer and more
convenient operation so long as it conforms to the legislative
intention. If, however, one interpretation has a powerful advantage
in ordinary meaning and grammatical sense, it will only be displaced
if its operation is perceived to be unintended."

See also Saraswati v. R. [1991] HCA 21; (1991) 100 ALR 193 at 207-208, per McHugh J.

11. The circumstances in which the construction of s. 78 arises for the purposes of the present appeal may now be briefly set out. The applicant is a registered organization carrying on the business of health insurance in Western Australia. By letter dated 20 June 1989, it notified the respondent Minister of changes to its rules which were to take effect on 1 July 1989. There has never been any suggestion that the notification failed in any respect to meet any applicable requirement of sub-ss. (1) and (2) of s. 78. It may be noted that the requirement of para. (b) of sub-s. (2) was not applicable when the notification was given, since it only became law on 28 June 1989, by virtue of Act no. 95 of 1989. While no issue was raised by the respondent's case under that provision, the applicant, for its part, was content to accept the applicability generally of the section in its present form, despite the extensive amendments made by Act no. 95 after the adoption of the changes. What gave rise to dispute was the insertion of a new para. (e) in rule 24, as follows:

"Notwithstanding anything herein to the contrary, Basic Hospital
Benefits only shall unless and to the extent the Board in its
absolute discretion otherwise determines be paid:
(i) in respect of In-Vitro Fertilization cases, unless the
Contributor has been a contributor to a table providing Intermediate
Hospital Benefits or Top Hospital Benefits for a continuous period
of five years prior to commencement of the programme."

There was also a definition of the expression "in-vitro fertilization case" inserted in rule 2, as follows:

"'In-Vitro Fertilization case' means all aspects of a programme of
in-vitro fertilization including treatment leading up to and during
pregnancy, confinement and neo-natal care for any baby born as a
result of the programme."

12. It will be seen at once that the effect of what was done was to provide a waiting period before certain hospital benefits could be obtained by a contributor in respect of hospital treatment commonly referred to as IVF treatment. The rules already provided for waiting periods of respectively one year and nine months in relation to pre-existing illnesses and pregnancies, but the new waiting period for IVF cases was five years. The justification claimed by the organization was the great expense of IVF and of its consequences, and the fact that IVF patients generally have a long period of prior notice of the prospect that they may require such treatment. Indeed, it was suggested that, without a significant waiting period, a right to benefits in respect of IVF treatment would cease to have the true character of insurance against a hazard, and would become an opportunity to purchase, for a relatively small total amount of contributions, a very valuable right in respect of a requirement to obtain treatment which had become certain or virtually certain. The organization contended that this would be fundamentally contrary to the nature of health insurance, would be unfair to other contributors, the level of whose contributions would have to pay for the benefits in question, and would place a serious financial burden upon the organization.

13. So far as the evidence reveals, the Minister, upon receipt of the notification, did absolutely nothing. But almost a year later, perhaps (although this is not established by any finding) as a result of a submission from some person or body, the question of the change made in the rules of the organization was agitated. On 12 November 1990, almost a year and a half after the notification, a delegate of the Minister made a declaration under s. 78(4)(b) that the change should not be taken to have come into operation. But on 25 March 1991 this declaration was revoked, apparently on the ground that it was not appropriate, and a declaration was made under s. 78(4)(a) to the same effect. Pursuant to s. 105AB(5), which provides for review by the Administrative Appeals Tribunal of a decision made under s. 78(4), the organization lodged an application for review of the delegate's decision. As a result of this application, the declaration under s. 78(4)(a) was set aside by consent on 19 August 1991, it being accepted by the Minister that para. (a) was not available to be applied in this case. Then, on 1 October 1991, the rule change was, for the third time, declared inoperative. On this occasion, the delegate of the Minister returned to his first thoughts, and made the declaration pursuant to s. 78(4)(b). A further application to the Administrative Appeals Tribunal followed, the dismissal of which has led to the present appeal to this Court.

14. At the hearing before the Tribunal, one of the many issues raised on behalf of the applicant was the following submission:

"Section 78(4) must, because of (its) retrospective effect, be
construed as only enabling the power to be exercised within a
reasonable time (authority was cited). Neither the time up to the
first declaration nor the time up to the third declaration was
reasonable. Even if the exercise of the power is not contrary to an
implied requirement for exercise within a reasonable time, it was
still wrong to exercise the power after that time, with
retrospective effect, when a far more appropriate power was
available (reference was made to s. 73BE)."

This submission, quoted here from the applicant's written submissions to the Tribunal, was also urged orally. However, the association of a submission that a direction under s. 73BE was the appropriate course with a submission that a declaration under s. 78 was not an appropriate course seems to have led the Tribunal to miss the primary question, whether it was too late for the power under s. 78 to be exercised. Assuming it was capable, in the circumstances, of being overlooked, the point was nevertheless quite definitely taken. The failure to deal with it constitutes an error of law, and of course it is an error that goes to the heart of the decision. If, in fact, a reasonable time had elapsed before the declaration was made, there was no power to make it.

15. The decision of the Full Court in Kuswardana v. Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 (see especially the judgment of Bowen C.J. at 194-195) makes it plain that an error of law may be committed by the Tribunal by the ignoring of such a central issue, even if no submission at all is directed to the Tribunal on the point; a fortiori, a less than perfectly clear submission will not justify a failure to consider the matter. Since it was objected that the point had not been clearly taken, it is only fair to those representing the applicant to add that a passage directly in point was cited to the Tribunal from Pearce and Geddes, Statutory Interpretation in Australia, 3rd ed., p 23 (para. 2.13). In that passage the learned authors say:

"One example of a gap (i.e. in legislation) which has consistently
been filled by the courts is where an Act requires something to be
done but does not specify the time for doing it. In R. v. Scurray
(1967) 86 WN (Pt. 1) (NSW) 1; DFCT v. Ganke (1975) 1 NSWLR 252 and
Re O'Reilly; Ex parte Australena Investments Pty Ltd (1984) 58 ALJR
36 the courts were prepared to interpolate 'within a reasonable
time' into the relevant provisions to fill the hiatus."

16. Early in the history of the Administrative Appeals Tribunal, the question was raised whether its power to review a decision "made in the exercise of powers conferred by (an) enactment" (s. 25 of the Administrative Appeals Tribunal Act 1975) could authorize it to consider whether the decision founding its jurisdiction ought to be set aside on the ground that it was legally a nullity, having been made entirely without power. In Collector of Customs (NSW) v. Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307, this question was answered in the affirmative. Bowen C.J. at 317 said:

"As I have said, in my opinion an applicant to the Tribunal has
standing and the Tribunal has jurisdiction provided there is a
decision in fact and provided further that the decision purports to
have been made in exercise of powers conferred by an enactment
whether or not as a matter of law it was validly made and whether or
not action on the basis there was power to make the decision was
right or wrong.
...
The Tribunal had jurisdiction and was entitled to determine the
legal question raised before it."

Smithers J. at 339 said:

"The decisions in respect of which the object of the Administrative
Appeals Tribunal Act requires review are essentially those whose
relationship to the relevant act (scilicet Act) is that the
administrator who made the decision actually made it in purported or
assumed pursuance thereof."

At 340, Smithers J. concluded that the Tribunal was entitled to review a decision "on the ground, inter alia, that it was a decision the (administrator) was not authorized to make".

17. It follows that, in the present case, the Administrative Appeals Tribunal should have entertained the applicant's point that the Minister lacked power to make a declaration under s. 78.

18. Of course, it would have been open to the Tribunal, having considered and understood the point, to exercise a discretion in relation to the proper course to be pursued. Bowen C.J. in Collector of Customs (NSW) v. Brian Lawlor Automotive Pty Ltd at 317 said:

"It may be that the nature of the legal question raised will be such
that the Tribunal, although it has jurisdiction, may consider it
proper that the applicant should first approach a court for decision
of the question. It may, in its discretion, decide to defer hearing
the application until this is done. An appeal involving a
constitutional question might well be such a case. However, this
would not be because the Tribunal lacked jurisdiction."

Deane J., who dissented as to the precise question involved in that case, remarked at 343:

"An administrative tribunal will ordinarily have no authority to
transcend the limits of the jurisdiction conferred upon it by
hearing an application aimed not at invoking the jurisdiction which
it possesses, but at securing an authoritative determination of
questions of fact or law anterior to the existence of that
jurisdiction."

Where a question arises of the kind raised by the present matter, it may well be appropriate for the Tribunal to follow the suggestion made by Bowen C.J., or alternatively to refer a question of law to the court under s. 45 of the Administrative Appeals Tribunal Act.

19. The applicant advanced two other, quite separate, arguments in relation to the Tribunal's decision. First, as will have been appreciated, it had contended, before the Tribunal, that, even if s. 78 was available as a matter of power, the more appropriate remedy for any perceived problem with the applicant's changed rules was to issue a direction under s. 73BE. Such a direction, it was pointed out, could have been tailored to the precise requirements of the situation; it need not necessarily have had an annihilating effect of the kind produced by s. 78. But the Tribunal did not consider whether the correct or preferable decision, in the exercise of its discretion, was to set aside the decision under s. 78, leaving the Minister free to give a direction under s. 73BE. It did not do so because it reached the conclusion, which was a conclusion of law, that the Minister could not have given a direction under s. 73BE in terms appropriate to meet the case. The Tribunal held:

"The Minister (or delegate) is not empowered by the Act to determine
the appropriate length of waiting periods for benefits and,
accordingly, the Tribunal has no power to do so. The fixing of
waiting periods for benefits is a matter for the registered
organisation concerned (in this case, the applicant), subject to
such provisions as s. 73BA (and Schedule 1) and, of course, s. 78(4)
of the Act."

20. The conclusion that the Minister was not empowered to utilize s. 73BE is one that the respondent was unable to support in argument. Section 73BE(1)(b), which has earlier been quoted, is wide enough to authorize a direction that the scope and level of benefits, to be available to persons who have been contributors for the period of three years thought appropriate by the Tribunal, should extend to the benefits in question in these proceedings. The Tribunal erred in law in holding otherwise; and its error led it to fail to take into account a relevant matter which it should have taken into account, namely, the question whether desirably the perceived unreasonableness or inequity of the rule should, under the circumstances, be left to the Minister to remedy by a direction under s. 73BE, instead of being remedied by the application of s. 78. That question was a real question, even if a reasonable time had not elapsed for the making of a declaration under s. 78 when the Minister purported to make the declaration the subject of the review; for a considerable time had elapsed, and the complete undoing of the rule and all that had been done in reliance upon it had obvious disadvantages.

21. It is unnecessary, for the purposes of this case, to decide whether the Tribunal's powers under s. 43 of its Act enabled it to make any substituted decision under a provision other than s. 78. But assuming that they did not, it must have been open to the Tribunal to take into account the existence in the Minister of other powers enabling him to deal with the situation. Section 43 must involve at least that the Tribunal can stand in the shoes of the decision-maker in deciding whether, among the powers available to be exercised, those under s. 78 should in fact be availed of. See Fletcher v. Commission of Taxation (1988) 19 FCR 442 at 452; Secretary, Department of Social Security v. Hodgson [1992] FCA 338; (1992) 108 ALR 322 at 330.

22. The second separate criticism of the Tribunal's approach which was made by the applicant concerns the admission of evidence relating to developments in IVF techniques, and their consequential costs reductions, after 1 July 1989. The applicant argues that the question for the Minister, in exercising power under s. 78(4)(b), is whether the change "imposes" an unreasonable or inequitable condition affecting the rights of any contributors. The use of the present tense, it is said, emphasizes the point that the Minister is concerned with the effect of the change as at the date when it is made; or, perhaps, when it takes effect. It is inconsistent with that situation, the applicant says, for the Minister's decision to be set aside by reference to events which occurred after that day. If later events could be taken into account, a change which did not impose an unreasonable or inequitable condition when made would be liable to be set aside because later events made it appear unreasonable or inequitable.

23. We think that this argument is sound. It is, of course, well established that the Tribunal determines what was the correct or preferable decision having regard to the whole of the evidence placed before it. It is not confined to the evidence which was before the primary decision maker. The Tribunal is, however, obliged to address the same question as was before the primary decision maker. This distinction was spelled out by Davies J. in Freeman v. Secretary, Department of Social Security (1988) 19 FCR 342.

24. In the present case, the question before the primary decision maker (the delegate of the Minister) was whether, at the time it took effect, the change imposed an unreasonable or inequitable condition; not whether, in the light of developments over the ensuing three years until the Tribunal hearing, the effect of the rule change was to occasion a state of unreasonableness and inequity to contributors. Of course, in considering the position as at the date of the rule change, the Tribunal is not confined to the historical position. It is entitled to receive evidence as to prospective developments in relation to IVF, as they appear at the date of the rule change. The reason is that, in evaluating the effect of the change as at that date, account may be taken of predictable developments. But the evidence must be related back to the date of the change.

25. It is apparent that, in the present case, the Tribunal not only received a considerable body of evidence concerning IVF developments after 1 July 1989, not shown to have then been predictable; it was influenced by that evidence in reaching its ultimate conclusion. This was a further error of law requiring the setting aside of the Tribunal's decision.

26. While it is not necessary to deal with a number of other criticisms made by the applicant of the reasons given by the Tribunal, some of which raise issues involving questions of fact, there is a matter of construction of s. 78 the importance of which requires that it be noticed. The Tribunal appears to have taken the view that if the Minister or his delegate was rightly of an opinion specified in sub-s. (4), the making of a declaration "necessarily" followed. This view is not correct. The formation of the requisite opinion is a condition of the power to make a declaration, but when that condition has been fulfilled, the sub-section provides that "the Minister may" make the declaration. A discretion is conferred. The fact that it is a discretion would be particularly important in a case where, although a reasonable time for the making of a declaration had not elapsed, sufficient time had elapsed, in the particular circumstances, to produce special difficulties in the event of a change in the constitution, articles of association or rules of the organization being nullified.

27. The appeal should be allowed with costs; the decision of the Tribunal should be set aside; and the matter should be referred back to the Tribunal to be dealt with according to law.