Case: Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 
Outcome: applied
The word "decision" in the Code has, by virtue of s 167(4) the same meaning as in the AAT Act . There was no suggestion that the removal of the approvals and registrations by the Authority was other than a "decision" for the purposes of the wide definition of that word provided in s 3(3) of the AAT Act . The issue is whether for the purposes of s 25(1)(a) of the AAT Act it was a "decision(s) made in the exercise of powers conferred by ..." s 167 of the Code. The meaning of "decision" in s 25 of the AAT Act was considered in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307. The majority construed "decision" as including one in purported exercise of powers conferred by the enactment: Brian Lawlor per Bowen CJ at 317 and Smithers J at 339. 84 A number of decisions, using that word loosely, were made by the Authority. It made a decision to remove the approvals and registrations from the Record and Register respectively. This was the consequence of its earlier decision to treat these approvals and registrations as of no legal effect: a decision that, at law, it had made no decisions to approve under s 19 or to register under s 20 of the Code. 85 The question here is whether the Authority's decision to regard the various approvals and registrations as of no effect at law and to implement that decision by "removing" those approvals and registrations from the Record and the Register constituted a purported exercise of powers conferred by the enactment and therefore reviewable pursuant to s 167 of the Code by the AAT. This test is an objective one. I would respectfully adopt what Bowen CJ said on this point in Brian Lawlor at 314-315: It seems inappropriate to interpret s 25 so as to make this dependent upon the state of mind of the official. It would, if adopted, appear to introduce a false issue and to impose upon the person aggrieved the burden of proving it. He could well be the very person, who was ignorant of that state of mind. Perhaps also it would involve the consequence that if the evidence on an appeal to the Tribunal showed that an official did not honestly believe he was acting in the exercise of powers conferred by the enactment, the appeal would have to be dismissed notwithstanding that the absence of honest belief might not affect the legal standing of the decision. ... in the ordinary course, it would be reasonably clear from the objective facts under which enactment or in the exercise of which statutory powers an official had purported to act. The adoption of this view would mean that the Administrative Appeals Tribunal would have jurisdiction to entertain an appeal from a decision in fact made, which purported to be made in the exercise of powers under an enactment. It could then proceed to determine whether the decision was properly made in fact and in law. (Emphasis added) In my opinion it did not. The Authority took no step provided for under Div 5 of Part 2 of the Code directed to cancellation of approvals and registrations. 86 Section 35 of the Code provides that the Authority must not cancel an approval or registration unless it has first given notice and then waited for an adequate period thereafter as provided under s 35(a) and (b). The Authority did not give any such notice(s). It did not make entries in the Record or Register provided for under s 45 following cancellation under the Code . Nor did it give any notice under s 45A. This was not by reason of error or omission on the part of the Authority. This is not a case involving a "colourable exercise of actual power": Brian Lawlor at p 342 per Deane J. The Authority deliberately took no steps to cancel the approvals and registrations under the Code. Here, the Authority placed no reliance, actual or purported, upon the Code to remove the approvals from the Record and the registrations from the Register. Indeed it stated in correspondence to Imtrade that as a result of fraud arising from the provision of the false name and address in respect of Evergreen the relevant active constituents were "unapproved" and the relevant chemical products were "unregistered". 87 The Authority did issue a recall notice to Imtrade under s 101 of the Code. It was not a pre-condition to doing so that the Authority must first have cancelled the registrations under Division 5 of Part 2 of the Code. It is open to the Authority to issue a recall notice where a chemical product is not registered: s 101(1)(a). The Authority considered that the various chemical products were unregistered because the registrations, vitiated by fraud, had been "removed" from the Register. 88 Accordingly it is, I think, wrong to characterise its conduct, as Imtrade does, as, in effect, cancellation of the approvals and registrations under the Code.