Case: Minister for Immigration &amp; Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Outcome: discussed
The relative invalidity school argues that invalidity is required to be established by judicial, not administrative, determination and any decision tainted by jurisdictional error is valid and effective in law until such a determination is made. Examples are to be found in Forbes v New South Wales Trotting Club Ltd [1979] HCA 27 ; (1979) 143 CLR 242 at 277 per Aikin J; Ousley v R per Gummow J at 130-131; R v Balfour; ex parte Parkes Rural Distributors Pty Ltd (1987) 17 FCR 26 at 33. It too has support amongst commentators: M Taggart, "Rival Theories of Invalidity" in M Taggart (ed), Judicial Review of Administrative Action in the 1980s Problems and Prospects (Oxford University Press and the Legal Research Foundation Inc, 1988) at p 70; Aronson and Dyer in Judicial Review of Administrative Action (2 nd ed, LBC, 2000) conclude on this issue at p 499: The truth is that there is no such thing as a complete nullity; it always takes a court decision to say so. Kirby J cites other strong support both judicial and from legal commentators in Minister for Immigration &amp; Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [103]-[104]. 37 The concept of absolute invalidity has been rejected by the High Court, at least in the context of judgments and orders of federal courts declared by legislation to be "superior courts" of record: Bhardwaj per Kirby J at [108]; Residual Assco Group Ltd v 39 The question of invalidity and its consequences was considered by the High Court in Bhardwaj. The respondent, whose student visa was cancelled by a delegate of the Minister for Immigration and Multicultural Affairs applied to the Immigration Review Tribunal for a review of the decision. The Tribunal proposed to deal with the matter on 15 September 1998, and invited the respondent to attend a hearing. Late in the afternoon of 14 September 1998 the Tribunal received, from the respondent's agent, a letter stating that the respondent was ill and would be unable to attend the next day, and requesting an adjournment. By an administrative oversight, the letter did not come to the attention of the member of the Tribunal to whom the matter had been assigned. The Tribunal dealt with the matter on 15 and 16 September, adversely to the respondent, and notified the respondent and his agent on 17 September. The reason given for the Tribunal's decision was that the respondent had not provided any information which suggested that the cancellation of his visa was unfair or inappropriate. When the respondent's agent was informed of the decision, the attention of the Tribunal member was drawn to the letter of 14 September. A new hearing date was arranged. The Tribunal heard the respondent's explanation of the conduct which had resulted in the cancellation of his visa, accepted the explanation, and, on 22 October 1998, revoked the cancellation. The issue in the appeal concerned the capacity of the Tribunal to proceed as it did thereby correcting its own error. The Minister contended that the power of the Tribunal to review the delegate's decision was spent after it made the decision in September. 43 Likewise, the error in Bhardwaj might be characterised as "flagrantly invalid" to use the language of Cooke J in Blenheim . In their joint judgment, Gaudron and Gummow JJ referred to the decision as one which "clearly involved a failure to exercise jurisdiction". Hayne J said that it was not seriously disputed in the Courts below or in the High Court that due to an oversight, the Tribunal had not given the respondent the opportunity to appear and give evidence and present arguments which s 360(1)(a) of the Migration Act 1958 (Cth) required he be given before the Tribunal made the September decision. This was the jurisdictional error involved. 46 In Bhardwaj Hayne J in the same vein said: If there is no challenge to the validity of an administrative act or decision, whether directly by proceedings for judicial review or collaterally in some other proceeding in which its validity is raised incidentally, the act or decision may be presumed to be valid. But again, that is a presumption which operates, chiefly, in circumstances where there is no challenge to the legal effect of what has been done. Where there is a challenge, the presumption may serve only to identify and emphasise the need for proof of some invalidating feature before a conclusion of invalidity may be reached. It is not a presumption which may be understood as affording all administrative acts and decisions validity and binding effect until they are set aside. 47 Whether an administrative decision ought be presumed to be valid until set aside by a court will depend upon the particular case having regard always to the particular legislation under which the decision was made. 48 In my opinion, the presumption in this case cannot be displaced, merely at the instance of the Authority, in the face of factual questions, the resolution of which is necessary before determining the legal validity or otherwise of the several decisions to approve and to register. It is a fact that incorrect information was given to the Authority by Imtrade concerning the name and address of the manufacturer. Evergreen was a fictitious name. The factual question whether this affected induced or procured the several decisions is disputed. The Authority cannot determine that question for itself. 49 There is a further reason why curial disposition is necessary in this case. The presumption of validity is of particular importance here because the legislation involves a system of approvals and registration affecting innocent third parties. Approvals and registrations require by s 52(1) and (2) respectively to be published by the Authority, at least in the Gazette. The position under s 53 in respect to variations and s 55 in respect to suspensions or cancellations is the same. Approval and registration confers important rights upon third parties such as suppliers and purchasers of chemical products. It also protects them against criminal liability. For example, supply and possession with the intent to supply unapproved active constituents and unregistered chemical products are offences under the Code: ss 74 - 78 . Some offences are indictable offences: s 170 and may involve imprisonment: ss 162 , 163 . Conviction for offences under the Code may involve forfeiture of property: s 150. Part 7A of the Agricultural and Veterinary Chemicals (Administration) Act 1992 deals with importation, manufacture and export of chemicals. Under Part 7A , it is an offence to import into Australia an active constituent that has not been approved or a chemical product that is not registered: s 69B(1). The removal of the approvals and registrations by merely deleting these electronically has the very real potential to expose innocent third parties to prosecution as well as financial loss. The system of recorded approvals and registrations enables third parties to organise their affairs accordingly. 50 Compliance with the Code may also be the subject of injunctions, as well as action involving the execution of search warrants with Inspectors having powers of entry and seizure. 51 Furthermore, Part 2 , Div 5 of the Code empowers the Authority in certain circumstances to suspend or cancel approvals and registrations. Upon cancellation, the Authority must give written notice to interested and approved persons as defined in s 3 and to any other person it believes notice should be given: s 45A(1). After such notice, that person is taken to have been issued with a permit to "possess, have custody of, use or otherwise deal" with the constituent or product for a certain period of time: s 45A(5). A penalty applies for not acting in accordance with the instructions contained in the notice: s 45A(6), ss 74 - 78 . Accordingly, s 45A(5) protects, for a period of time, third parties affected by the cancellation. That protection is not available to them in the circumstances which presently exist. The Authority issued a recall notice to Imtrade under s 101 of the Code. I will consider this in more detail below. It is relevant in the present context to note that under Clause 2 of the Notice, which sets out various definitions, there is included the word "Permit". It is stated to mean a permit under Part 7 of the "Agvet Codes". There is however no operative clause in the Notice concerning permits. A consideration of Part 7 of the Code immediately demonstrates that its provisions are not apt to the circumstances of this case. 52 The observations of Hayne J at [143] and Kirby J at [122] in Bhardwaj are relevant to these third party considerations. 53 In my opinion, it is for this Court to decide the legal question involving as it does a preliminary factual enquiry. Indeed, the Authority seeks declarations from this Court that each approval and each registration was of no legal effect because each was affected, procured or induced by fraud. I will now consider those questions.