Regulating the discretion to extend time: applying statutory extension of time provisions

Insights17 July 2024

At its core, administrative law is concerned with keeping those with power (be it the judiciary or the executive) within the limits of the conferral of that power. If a limit to power is exceeded in a way that is material, then it lacks authority and is therefore invalid.

Among the limits placed on judicial and executive power are specific legislative time limits that apply to applications seeking merits and judicial review of the actions of State and Commonwealth executive officers.

These time limits exist in most Australian jurisdictions for merits and judicial review of administrative decisions and appeals. Some key examples in Australian federal law include:

Sections 29(2) and 44(2A), Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act);
Section 11, Administrative Decisions Judicial Review Act 1977 (Cth) (ADJR Act); and
Sections 347(1)(b), 412(1)(b), 477(1), 477A(1), and 500(6B), Migration Act 1958 (Cth) (Migration Act).

The purpose of time limits

The public interest requires that there be an end to litigation directed at the acts or decisions of public bodies or officials.^[1]Time limits foster this public interest objective by providing certainty in administrative decisions because, at the expiry of the prescribed timeframe, it can be assumed that a decision is final and can be relied on. This certainty benefits individuals affected by a decision, decision-makers, the wider government and the general public.

However, time limits that apply to applications for judicial review also restrict the general right of access to the courts. It is not difficult to imagine that, in some circumstances, strict enforcement of the relatively short time limits discussed below may disadvantage a prospective applicant. In many cases, the limitation period is the general rule and an extension is an exception to it.^[2]

The discretion to extend time

In some (but not all) cases, there is a discretion to extend time:

Section 29(2) of the AAT Act requires that an application for review of a decision that is reviewable by the Administrative Appeals Tribunal (the Tribunal) must be filed within 28 days from when the applicant is notified of the decision. However, Section 29(7) affords the Tribunal a broad discretion to extend time for making an application for review if satisfied that ‘it is reasonable in all the circumstances to do so‘.
Section 44(2A)(a) of the AAT Act requires that an appeal, on a question of law, from any decision of the Tribunal must be instituted ‘not later than the twenty‑eighth day after the day on which a document setting out the terms of the decision of the Tribunal is given to the person or within such further time as the Federal Court of Australia (whether before or after the expiration of that day) allows‘.
Under s 24Z of the AAT Act, s 29 does not apply to the conduct of proceedings in the Migration and Refugee Division of the Tribunal under parts 5 and 7 of the Migration Act. The Tribunal has no discretion to extend the time limits prescribed under ss 347(1)(b) and 412(1)(b) of the Migration Act.
Section 477(2) of the Migration Act confers a discretion on the Federal Circuit and Family Court of Australia to extend the time in which an applicant can apply for judicial review of a migration decision, if an application is made in writing and the Court is satisfied that it is necessary, in the interests of the administration of justice, to make an order extending time.
Section 477A(2) of the Migration Act is cast in similar terms to s 477(2) and permits the Federal Court of Australia to extend the time for filing an application for review in the Court’s original jurisdiction.
Under ss 11(1) and 11(3) of the ADJR Act, an application to the Federal Court or the Federal Circuit and Family Court of Australia for an order of review of a decision made by a person exercising a public function must be made within 28 days after the decision is furnished to the applicant. However, the court has an unfettered discretionary power to extend time under s 11(1)(c).^[3]

The considerations relating to the exercise of the discretion to extend time

Although these statutory regimes provide little guidance on the matters that should inform the exercise of the discretionary power, it is generally accepted that the following matters are relevant:

the length of the applicant’s delay;
the explanation for any delay;
the merits of the proposed substantive application or appeal; and
the prejudice to the other party or parties.^[4]

The ultimate object to be secured by the exercise of a discretion to extend time is the interests of justice.^[5]

Regulating the discretion

The exercise of the discretion to extend time is not immune from review, and jurisdictional error has been established in the exercise of the discretion where:

the refusal to extend time was made without considering the merit of a proposed ground of judicial review.^[6]
the primary judge failed to consider evidence that was adduced to explain the delay.^[7]
the primary judge proceeded on the mistaken assumption about the date the application was filed and that a written application for the extension of time, as required by section 477(2)(a), was not made.^[8]

Conclusion

Statutory time limits promote certainty in administrative action but can infringe upon the general right of access to the courts. Where there is a discretion to extend the time for commencing judicial review proceedings, it is usually the decision maker that will determine what considerations should be taken into account in the exercise of the discretion. Where the decision makers proceed on a fundamental misunderstanding of the nature of the discretion conferred, the decision will be affected by jurisdictional error.

Please join us on 22 July 2024, when we will discuss these issues in the fifth webinar of our 2024 Administrative Law webinar series.

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[1] Re Commonwealth; Ex parte Marks [2000] HCA 67; (2000) 177 ALR 491; (2000) 75 ALJR 470 at [15].
[2] Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 553.
[3] Norouzi v The Director of the Professional Services Review Agency [2020] FCA 1524 at [20] per Logan J.
[4] Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 per Wilcox J; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ.
[5] Jarvis-Lavery v Commissioner of Taxation [2023] FCA 1382 at [9], citing Brown v Commissioner of Taxation [1999] FCA 563 at [47].
[6] CKX16 v Judge of the Federal Circuit Court of Australia [2018] FCA 400.
[7] Huynh v Federal Circuit Court of Australia [2019] FCA 891.
[8] CZA19 v Federal Circuit Court of Australia [2021] FCAFC 57.