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Collector of Customs (NSW) v Brian Lawlor

41 FLR 338

(Judgment by: Smithers J)

Collector of Customs (NSW)
vBrian Lawlor

Court:
Federal Court of Australia

Judges: Bowen CJ

Smithers JDeane J

Subject References:
Customs and excise
Licence
Revocation
Collector of Customs
Private warehouse licence
Issued by Collector of Customs
Revocation by
Licensee not 'a fit and proper person' to hold licence
Appeal by licensee to Administrative Appeals Tribunal
Whether revocation in ex-cess of authority
Appeal by Collector against decision of Tribunal
Whether authorization of revocation by Customs Act and Acts Interpretation Act
Jurisdiction of Tribunal to review
Cus-toms Act 1901 (Com) s 81 and Pt V, Div 1
(CTH) Acts Interpretation Act 1901 s 33(3)
(CTH) Administrative Appeals Tribunal Act 1975 ss 3(3), 25(4), 26(2), 44

Legislative References:
Administrative Appeals Tribunal Act 1975 - s 3(3); s 25; s 26; s 44; Schedule 1
Acts Interpretation Act 1901 - s 33(3)
Customs Act 1901 - Pt V; Div 1
Administrative Appeals Tribunal Act 1975 - s 3(3); s 25

Case References:
Banks v Transport Regulation Board (Vic) - (1968) 119 CLR 222
Calvin v Carr - (1979) 22 ALR 417
Anisminic Ltd v Foreign Compensation Commission - [1969] 2 AC 147; [1969] 1 All ER 208
Commissioner of Stamps (Qld) v Wienholt - (1915) 20 CLR 531
Cowell v Rosehill Racecourse Co Ltd - (1937) 56 CLR 605
Crane v Public Prosecutor - [1921] 2 AC 299; [1921] All ER Rep 19
Davidson v Chirnside - (1908) 7 CLR 324
Green v Daniels - (1977) 13 ALR 1
Hamilton v Halesworth - (1937) 58 CLR 369
Heatley v Tasmanian Racing and Gaming Commission - (1977) 14 ALR 519
James Jones & Sons Ltd v Tankerville (Earl) - [1909] 2 Ch 440
James Paterson & Co Pty Ltd v Melbourne Harbor Trust Commissioners - [1961] VR 343
Little v Commonwealth - (1947) 75 CLR 94
Marshall v Watson - (1972) 124 CLR 640; [1972] ALR 641
Meyers v Casey - (1913) 17 CLR 90
Padfield v Minister of Agriculture and Fisheries - [1908] AC 997
Pearlman v Keepers and Governors of Harrow School - [1978] 3 WLR 736
R v Clyne Ex parte Harrap - [1941] VLR 200
R v Hurst Ex parte Smith - [1960] 2 QB 133
R v Lyon - (1906) 3 CLR 770
Reid v Moreland Timber Co Pty Ltd - (1946) 73 CLR 1
Salemi v Minister for Immigration and Ethnic Affairs (No 2) - (1977) 14 ALR
Selmes v Judge - [1871] LR 6 QB 724
Staffordshire Area Health Authority v South Staffordshire Waterworks Co - [1978] 1 WLR 1387
Strickland v Rocla Concrete Pipes Ltd - (1971) 124 CLR 468; [1972] ALR 3
Sullivan v Department of Transport - (1978) 1 ALD 383; 20 ALR 323
Taplin v Florence - (1851) 10 CB 744
Thompson v Goold & Co - [1910] AC 409
Trobridge v Hardy - (1955) 94 CLR 147
Western Australia v Commonwealth - (1975) 134 CLR 201; 7 ALR 159
White v Kuzych - [1951] AC 585; [1951] 2 All ER 435
Wilson v Chambers & Co Pty Ltd - (1926) 38 CLR 131
Winter Garden Theatre (London) Ltd v Millennium Productions Ltd - [1948] AC 173
Wood v Leadbitter - (1845) 13 M & W 838

Hearing date:
Judgment date: 3 May 1979

Sydney

Judgment by:
Smithers J

This is an appeal from the decision of the Administrative Appeals Tribunal, (the Tribunal), given in an application by Brian Lawlor, Automotive Pty Ltd for the review of a decision made on 31 October 1977 by the assistant Collector of Customs, New South Wales, (the Collector) to revoke warehouse licence No 3152 held by the applicant over the premises at 152 Old Pittwater Road, Brookvale and known as Bri-Law Bond. The Tribunal's decision was to review the Collector's decision, set it aside and substitute a decision that no action be taken purporting to revoke the licence: see (1978) 1 ALD 167. The licence in question had been granted on 16 March 1976 by the Collector. It was in writing and was in the following terms:--

WAREHOUSE LICENCE

WHEREAS BRIAN LAWLOR AUTOMOTIVE PTY LTD of 152 OLD PITTWATER ROAD, BROOKVALE has applied for a licence, under Part V of the Customs Act 1901-1975, to use as a warehouse the premises occupied by BRIAN LAWLOR AUTOMOTIVE PTY LTD and known as BRI-LAW BOND and situate in 152 OLD PITTWATER ROAD, BROOKVALE in the State of NEW SOUTH WALES and has paid $304.80 being the licence fee in advance to 30 TH JUNE 1976.
Now THEREFORE I hereby license those premises under and subject to the provisions of that Act and the regulations for the time being in force under that Act. AND THE CONDITIONS AS SPECIFIED ON THE BACK HEREOF.
This licence shall commence on the 12 TH day of MARCH 1976
DATED AT SYDNEY the 16 TH day of MARCH 1976.
(signed) H A FORBES
Collector of Customs for the State of NEW SOUTH WALES as delegate of the Minister of State for Customs and Excise.
CONDITIONS OF LICENCE

(a)
GOODS THE PROPERTY OF BRIAN LAWLOR AUTOMOTIVE PTY LTD ARE TO BE STORED IN THE BOND.
(b)
THE BOND IS TO BE USED AS A STORAGE FACILITY ONLY.
(c)
ALL GOODS ARE TO BE PROPERLY ENTERED FOR WAREHOUSING BEFORE RECEIPT INTO BOND.

On 31 October 1977 one Mr Gallagher acting for the Collector purported to revoke the licence by letter in the following terms to Mr B Lawlor, managing director of Brian Lawlor Automotive Pty Ltd:--

I refer to Warehouse Licence No 3152 of 16 March 1976, issued to Brian Lawlor Automotive Pty Ltd in respect of premises known as Bri-Law Bond, situated at 152 Old Pittwater Road, Brookvale.
Recent enquiries into the operations of Bri-Law Bond have revealed that your company is not, in my opinion, a fit and proper person to hold a customs warehouse licence.
Accordingly, you are advised that Warehouse Licence No 3152 is revoked, the revocation to take effect from 21 November 1977.
Further, in terms of s 94 of the Customs Act, 1901-1976, you are required to remove all underbond goods from Bri-Law prior to 21 November 1977, to some customs general warehouse, or alternatively, to duly enter such goods for home consumption and pay the duty payable thereon prior to that date.

The appeal is brought pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 which provides for an appeal on a question of law from a decision of the Tribunal. In the proceedings before the Tribunal wherein Brian Lawlor Automotive Pty Ltd the present defendant was the applicant it sought a review of the decision of the Collector, the present plaintiff, on the ground, inter alia , that it was in excess of his authority to cancel the licence. It was said for the Collector that there was implied authority to cancel the licence in the terms of the Customs Act 1901 and also that adequate authority to do so was conferred by s 33(3) of the Acts Interpretation Act 1901 (Com). It was also contended that if in law the Collector was not authorized to revoke the licence the applicant was not entitled to seek a review of the decision of the Collector.

The learned President of the Tribunal held that s 33(3) of the Acts Interpretation Act did not operate to confer on the Collector authority to revoke the licence. He held also that although neither express nor implied power to revoke the licence was to be found in the provisions of the Customs Act 1901 nevertheless in revoking the licence the Collector acted in the intended exercise of a power contained in Pt V of the Customs Act. He further held that in view of that circumstance the decision to revoke was a decision under Div 1 of Pt V of the Customs Act within the meaning of that expression in cl 2(b) of Pt XII of the Schedule to the Administrative Appeals Tribunal Act 1975 and accordingly the applicant was entitled to seek a review of that decision by the Tribunal see ss 25(1), (4) and 26 of that Act) and the Tribunal had authority to entertain such an application.

Before this court the Solicitor-General appeared on behalf of the plaintiff and contended that the decision of the Collector was impliedly authorized by the provisions of Pt V of the Customs Act and was also authorized by the provisions of s 33(3) of the Acts Interpretation Act. He contended however, that if this court were of the opinion that the Collector did not have lawful authority to revoke the licence then the application for review of the decision of the collector was not within the jurisdiction of the Tribunal conferred by the Administrative Appeals Tribunal Act and the Tribunal had no authority to entertain the application.

Mr Jucovic who appeared for the defendant contended that the Collector had no authority under the Customs Act or any authority derived from the Acts Interpretation Act to revoke the licence, but that notwithstanding such absence of authority the defendant was entitled to seek and the Tribunal had jurisdiction to proceed to a review of the Collector's decision.

The Acts Interpretation Act 1901

It is convenient to deal first with the contention based on s 33(3) of the Acts Interpretation Act 1901. That provision is in the following terms:--

(3) Where an Act confers a power to make, grant or issue any instrument (including rules, regulations or by-laws) the power shall, unless the contrary intention appears, be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

As the licence which the Collector purported to revoke on 31 October 1977 had been granted pursuant to the provisions of Div 1 Pt V of the Customs Act it is necessary to determine whether the power therein to grant the licence was a power conferred upon the Minister to make, grant or issue an instrument within the meaning of s 33(3). If it were then by virtue of that provision the Collector, as delegate of the Minister, possessed a power, in like manner, to revoke it.

To characterize the nature of the power which is conferred upon the Minister and the Collector, as his delegate, under the Customs Act, reference to relevant sections of Div 1 of Pt V of the Customs Act is necessary. The following references to the provisions of the Division extend beyond what is necessary in the consideration of the question arising under s 33(3) of the Acts Interpretation Act but serves a purpose relevant to the succeeding sections in these reasons. Part V of the Act is headed "The Warehousing of Goods", and Div 1 is headed "Licensed Warehouses". Section 78 is the opening, and to my mind indicative, section of the Division. It provides that dutiable goods may be warehoused in warehouses licensed by the Minister. The procedure for licensing warehouses serves the system of entering and passing entries of dutiable goods under Pt III of the Customs Act and also the provisions of s 68, namely that:--

68 Subject to this Act, imported goods shall be entered --

(a)
for home consumption;
(b)
for warehousing;
(c)
for transhipment; or
(d)
for removal to a place specified in the entry.

It is apparent that the purpose of providing for the warehousing of dutiable goods is to make it convenient for importers to put their dutiable goods in respect of which duty is not yet actually payable in some suitable location. Such location must be under conditions sufficiently under the control of the customs officers to ensure that the goods are not taken into home consumption without duty being paid upon them in accordance with entries made with reference to such goods, or are not dealt with in such a way as to compromise their identity such as by repacking or mixing or otherwise being dealt with in a manner inconsistent with the protection of the revenue.

Consistently with this the emphasis in s 78 is the designation of premises in which, exclusively, dutiable goods may be warehoused pending payment of duty. The section contemplates premises which will be "warehouses licensed by the Minister". The authority to grant a licence is not conferred in express terms. It is consequential upon the expression of the main objective, namely the designation of places where dutiable goods may be warehoused.

In s 79 provision is made for five classes of licensed warehouses, and the classes of goods for the warehousing of which each class of warehouse may be used are specified. Those classes are class I -- general warehouses to be used for warehousing goods generally, class II -- private warehouses to be used only for warehousing goods the property of the licensee, class III -- machinery warehouses to be used only for warehousing machinery and similar goods, class IV -- manufacturing warehouses to be used for warehousing goods for use under such conditions as may be prescribed in such warehouse in any manufacture, trade or process etc, class V -- transit warehouses to be used only for the temporary warehousing of goods. By s 80 it is provided that the fees payable by licensees for warehouses shall be as prescribed and shall be paid within such period or at such times as are prescribed. By s 81 it is provided that in default of payment of any part of any licence-fee for 30 days after the prescribed time for payment the Minister may be gazette notice, cancel the licence and thereupon the warehouse shall be closed and the goods therein shall be removed by the collector to some other warehouse. By s 92 various obligations are imposed upon the licensee in relation to the stacking and arranging of goods, the provision of suitable accommodation and offices for officers, the finding of labour and materials requisite for the storing, examining, packing, weighing and taking stock of the warehoused goods and the payment of duty on all warehoused goods removed from the warehouse except by authority and on all warehoused goods not produced to an officer on demand unless such goods are accounted for to the satisfaction of the Collector. The penalty for failure to observe any one of these obligations is $100. By s 92 A the licensee is required to keep such records as the Comptroller-General of Customs directs and by s 93 no person except by authority is to open any warehouse or gain access to the goods therein.

Section 94 states that the Collector may require the owner of any goods in any private warehouse within a time to be specified by him to remove them to some general warehouse or to pay the duty thereon and if the order is not complied with the goods may be sold by the Collector. By s 98 the Collector at all hours of the day and night has access to every part of any warehouse and is given power to examine goods therein and for that purpose to break open the warehouse or any premises necessary to be passed through to secure access. By s 99 warehoused goods may be examined by an officer and duty shall be payable according to the result unless the Collector is of the opinion that any loss shown is excessive in which case the duty shall be paid on the original entry with any reduction which the Collector may see fit to allow. By s 104 warehoused goods may be entered (a) for home consumption, (b) for export to parts beyond the seas, (c) for warehousing elsewhere and (d) for removal to a place specified in the entry.

It is the contention of the plaintiff that either s 78 alone or in conjunction with the other provisions set out above are to be construed as conferring on the Minister a power to make, grant or issue an instrument, namely an instrument granting a licence in respect of a warehouse.

It is clear that there is express authority in the Minister to bring into existence warehouses licensed by him. It is implied in the Division that according to his judgment he may make, grant or issue licences specified by him to persons who will become the licensees in respect of those premises.

It is to be observed that the Division itself imposes many duties on the licensees and confers many powers upon the Minister, the Comptroller-General of Customs and the Collector in respect of goods in a warehouse. However, it does not deal with the period of time during which a warehouse, once licensed as the result of a licence granted to a licensee shall remain a licensed warehouse. Also it does not expressly refer to conditions, other than those to be implied in the statutory provisions subject to which a licence may be granted. But the essence of the provisions in the Division is that it is for the convenience of importers that dutiable goods may before payment of duty be warehoused in warehouses in respect of which, at the time of being so warehoused, a licence is in force. It is hardly likely that Parliament intended that a licence should not be issued for a period specified by the Minister or that a licence might not be granted subject to conditions relating, for instance, to the proper maintenance of the relevant buildings or to other relevant matters: cf James Paterson & Co Pty Ltd v Melbourne Harbor Trust Commissioners [1961] VR 343-9 at 348.

Further, the Division does not say whether the licence is to be in any particular form or even that it is to be in writing. As is pointed out by the learned President of the Tribunal in the decision under appeal:--

There are some features of the warehouse licensing scheme which point to the desirability, indeed to the practical necessity, of a written warehouse licence. To define the boundaries of the licensed premises, to have tangible proof of the grant of a warehouse licence, to establish the commencing date from which the annual licence fee is to be calculated (pursuant to Customs reg 50), to have a document which can be yielded up to establish a surrender (pursuant to Customs reg 51) to identify the occasions when the Minister's delegates have exercised their delegated powers to license (pursuant to s 9), it is necessary in practice to have a written instrument. But s 78 does not in terms require that the licensing power be exercised in writing and the practical need can be met either by a written certificate of the exercise of the licensing power, or by the licence itself if the Minister or his delegate should choose to exercise the power in writing": (1978) 1 ALD 167 at 172.

It might also be added that the practical requirements of documentation could be met by a system of departmental registration. The provisions relating to registration of tax agents under Pt VII A of the Income Tax Assessment Act 1936 are in point.

In so far as the provisions of Div 1 of Pt V of the Customs Act fail to provide that a licence, the granting of which is contemplated shall be in writing, they differ from other provisions in the Act dealing with licences, permits, and notices, for instance s 97 which is itself in the Division and ss 37(2 A)(c), 40 AA (1) and (2), 60(2)(b), 71 B (1), 132 B (3), 132 C (1) and 183 B (6). These provisions expressly provide that the licences, permits and notices which they authorize shall be in writing. Accordingly, to find in the Division a provision that a licence issued pursuant to it is required to be in writing it would be necessary to discern some implication to that effect. It is said that the general conception of a licence issued in the course of government administration is that of an operative document issued by the relevant authority. Usually some formality other than mere verbal expression is contemplated. One definition of licence contained in the Oxford English Dictionary (1903 ed) is "a formal usually printed or written permission from a constituted authority to do something ... a permit". And indeed it is true that licences given or granted in the course of government are normally given or granted in the form of a written document issued by the relevant authority. But it is also true that a licence granted by parol pursuant to a statute authorizing such grant would be quite effective. And in view of the various provisions of the Customs Act mentioned above the absence of words requiring that the licence be in writing can hardly be regarded as non-significant. In the Customs Regulations forms are specified for a great number of administrative acts but there is no form provided for a licence issued under Div 1. It is apparent therefore that to read into the statute a provision that a licence granted by the Minister must be granted by instrument or in writing would be to read words into the statute that are not there. It was said by Stephen J in Western Australia v Commonwealth (1975) 134 CLR 201 at 251 ; 7 ALR 159 at 191 that "To read words into any statute is a strong thing and in the absence of clear necessity, a wrong thing. -- Thompson v Goold & Co [1910] AC 409 at 420".

To imply a provision that the licence which may be granted pursuant to Div 1 must be in writing is certainly not a matter of necessity and one seeks in vain for any indication that Parliament intended so to provide. It is said however, that even if it be the case that the licence is not required to be in writing it is nevertheless clear that a licence may be made in writing. Therefore so it is said, Div 1 is a statutory provision which "confers a power to make, grant or issue" an instrument. But, in my opinion this is a view which cannot be accepted. It is true that should the Collector, as delegate of the Minister, grant a licence in writing that licence would be a licence granted pursuant to a power conferred upon the Minister by the Division and in a sense the instrument constituted by the writing would be an instrument made and issued pursuant to a power conferred on the Minister by the Division. But the question is whether that sense is the relevant sense of the relevant words in the text of s 33(3) of the Acts Interpretation Act.

Section 33(3) is designed to confer a power of revocation of an instrument made, granted or issued by an authority pursuant to a power already conferred upon it to make, grant or issue that instrument in circumstances where the power of revocation may not otherwise have been conferred upon that authority. The sub-section is clearly concerned with instruments which, when made, granted or issued by an authority achieve some legal result because they were made, granted or issued pursuant to the power conferred upon the authority to make, grant or issue them. There is a distinction between conferring a power to make, grant or issue an instrument which pursuant to the power conferred will create particular legal rights or liabilities and conferring a power on an administrator to create legal rights and liabilities, by, for instance, granting a licence or entering into a contract by appropriate action according to law. The distinction is greater where the power to create particular legal results is conferred and nothing is said about the manner of creating the authorized result. In such a case it would seem that all that is intended is to confer power and authority to grant the licence or make the contract, the exercise of that power and authority to proceed according to law by whatever legal means are available to the authority according to its personality and capacity. Where this is the situation it cannot be said that the legislature has directed its attention to the means of achieving the authorized legal result, much less that it has conferred power to make, grant or issue an instrument. The distinction between a transaction and an instrument implementing it has been remarked upon in relation to taxing legislation. See the remarks of Griffith CJ and Higgins J in Davidson v Chirnside (1908) 7 CLR 324and 347 at 340 and the joint judgment of the High Court in Commissioner of Stamps (Qld) v Wienholt (1915) 20 CLR 531 at 541. The problem under discussion has some resemblance to that dealt with by Menzies J in Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468 at 502 ; [1972] ALR 3 at 17 His Honour pointed out that a Commonwealth law regulating in certain respects the trading of traders generally could not be regarded as a law concerning the trading of trading corporations because in its terms it applied to corporations as well as individual traders. He said of the relevant provisions: "They are laws with respect to trade which apply to any person party to an agreement of the kind specified. A law is not to be described as with respect to the various persons or classes of persons upon whom it casts obligations."

In relation to Div 1 of Pt V of the Customs Act it may be concluded that its provisions are not provisions with respect to the making, granting or issuing of instruments merely because the exercise of the powers conferred therein might be carried out by issuing an instrument.

It is my opinion that the Division is to be seen not as authorizing the making, granting or issuing of an instrument. Accordingly s 33(3) of the Acts Interpretation Act is not in point.

Collector's power to revoke the licence

It is said that the very concept of a licence is that of something revocable. Dictionary definitions of the word "licence" were referred to but there is nothing in any of the dictionary meanings to support the view that the grant of a licence is inherently revocable. It has been pointed out that at common law "a licence to enter a man's property is prima facie revocable, but it is irrevocable even at law if coupled with or granted in aid of a legal interest conferred on the purchaser ... ", per Dixon J as he then was, in Cowell v Rosehill Racecourse Co Ltd (1936) 56 CLR 605 at 630 quoting from the judgment of Parker J in James Jones & Sons Ltd v Tankerville (Earl ) [1909] 2 Ch 440 at 442. Dixon J continued: "Further, a licence is revocable at law notwithstanding an express contract not to revoke it. By revoking it the licensor commits a breach of contract exposing him to an action of damages ex contractu But the licensee cannot further avail himself of the licence and the licensor is not precluded in an action of tort from relying upon the termination of the licence: Wood v Leadbitter (1845) 13 M & W 838 Taplin v Florence (1851) 10 CB 744. This is in accordance with the general rule of the common law that a landowner's possessory rights cannot be renounced or altered by mere contract. The rights continue to subsist notwithstanding the contract, which operates only to impose obligations and not otherwise to prevent the exercise of rights arising from property" ((1936) 56 CLR 605 at 631).

But the licence granted under Div 1 of Pt V of the Customs Act is of a very different nature. It does not permit the licensee to use the premises of the licensor and there is therefore no paramount property interest in the licensor. But the licence is given in an area in which important revenue and thus public interests are involved and with which unless it is revocable the licence might in the course of time be in conflict.

A licence for a private warehouse confers advantages upon the licensee in respect of the warehousing of his own goods. Licences for other classes of warehouses confer on the licensee the advantage of carrying on the business of warehousing the goods of other persons for reward. For every licence, licence fees are payable. The procedure is also beneficial to the Customs authorities as it facilitates the administration of the Act and encourages imports. A licence granted pursuant to Div 1 of Pt V of the Act merely makes lawful the use of the licensee's own property for the purpose of storing his or other persons' dutiable goods therein. In accordance with the provisions of the Division the licence is to be granted in respect of specified premises and upon the grant being made those premises acquire the status of a "warehouse licensed by the Minister". The result is that pursuant to s 78 of the Act those premises may be used for the deposit of dutiable goods which are entered for warehousing pursuant to s 68.

Rights and duties of the officers of the Customs Department and the licensee are specified in Div 1 of Pt V of the Customs Act. It would seem therefore that the question whether the licence is revocable or not is to be found in the express terms of the Division and such implications as properly arise therefrom or from the nature of the transaction effectuated when a licence is granted thereunder.

When the Minister is minded to grant a licence to a person in respect of premises pursuant to Div 1 of Pt V of the Customs Act no doubt he could grant the licence by a simple statement to the effect that a licence under Div 1 of Pt V of the Act was thereby granted in respect of specified premises. The conditions of the licence would have to be gathered from the terms of the Act and the Regulations and from the nature of a licence. On the other hand it would seem, that subject to certain provisions of the Customs Act the terms and conditions on which a licence may be granted are within the discretion of the Minister or his delegate. He may decline to issue a licence to any particular person or to grant it in respect of any particular premises or he may issue a licence for a particular term or a term determinable in certain events. The kind of provision he could not introduce into a licence would be one specifying licence fees in amounts or payable otherwise than in accordance with the Regulations as s 80 of the Act provides that those fees and the times for their payment are to be determined by regulation. However, there is no doubt that the Minister could grant a licence reserving to himself a right to determine it on any grounds including failure on the part of the licensee to observe certain specified standards of conduct or to comply with the statutory duties imposed by Div 1 of Pt V of the Customs Act. And in the present case the Collector did grant the licence subject to certain conditions. If in such a case the Collector considers that there has been a breach of a condition entitling him to revoke the licence and decides to do so the questions that arise are whether the alleged breach had in fact occurred and whether on the proper interpretation of the licence there was a right to revoke for that breach.

Certain statements in the reasons for revocation supplied on behalf of the decision-maker in this case pursuant to s 37 of the Administrative Appeals Tribunal Act might have given rise in the proceedings before the Tribunal to questions of this nature. But the matter has proceeded before this court and before the Tribunal on the basis that no power of revocation for breach of the express conditions in the licence was claimed. Accordingly, if there resided in the Minister or the Collector a right to revoke the licence it must be found in the express or implied provisions of the Customs Act or in the nature of the transaction of licence of the kind authorized by Div 1 Pt V of the Customs Act. Indeed when looked at broadly the contention to be found in the reasons given pursuant to s 37 of the Administrative Appeals Tribunal Act that by reason of the licensee's misconduct he was, "no longer a fit and proper person to hold a licence of the type referred to in s 78 of the Customs Act 1901 by normal commercial standards", would seem to invoke a right of revocation on the basis that the continuance of the licence was incompatible with the purposes of the Act.

The fundamental nature of this licence is that it is a permission issued by the licensor for the purpose of the efficient and convenient administration of a revenue statute. The notion that the permission may be revoked is in no way incompatible with that circumstance. It is permissible to approach the interpretation of the Division on the basis that the kind of transaction, the legal vehicle the legislature has chosen for the purposes of the Customs Act, is the giving of a permission by an authority to a person to do something otherwise unlawful in respect of goods in which the authority has a continuing day to day interest and in respect of which it has a duty to protect the revenue on behalf of the Commonwealth. The high degree of official control thought necessary for these purposes is indicated by the provisions of Pt III of the Act. The protection of the revenue is a vital consideration in the administration of the Act. The warehousing provisions are for convenience only and operate subject to the paramount public revenue interest. See the comments set out below of O'Connor J in R v Lyon, infra . The remarks of Isaacs J as he then was in Wilson v Chambers & Co Pty Ltd (1926) 38 CLR 131-1 at 140 concerning s 78 of Pt V of the Customs Act are in point. His Honour referred with approval to the statement of Sir George Stephen in The Principles of Commerce and Commercial Law (1853) at pp 108 to 109 which is in the following terms, as an equally apt description of the background to Div I: "... before the introduction of the warehousing system ... the duties on imported goods were payable on their arrival in port; or future payment, and find security besides. It was not always possible for the merchant to find sureties, and often yet more difficult to raise money for the duties before he had found a purchaser for the goods: in this dilemma he had no alternative but to sell them at once, whatever might be the state of the market; this threw the trade in all goods carrying a high duty, such as wines, into the hands of wealthy traders exclusively; and it also deterred foreigners from sending goods to this country, except at times when they could be sure of an immediate sale; so that there was never any accumulation of foreign produce in our warehouses, beyond what was wanted for the average of home consumption: thus, a Hamburgh or Havre merchant, who wished to complete a cargo for Asia or America, would have sought for one in vain in England, and must have sent the ship round in to Lisbon or Oporto, for wines that he might have found in any quantity in the London Docks, had not the high duties, and the necessity for their immediate payment, prevented their being imported except for the supply of the home market."

It is to be noted that in defining "warehouse" in s 4 of the Act it is said that a warehouse is "a warehouse licensed by the Minister for the purposes of this Act". This would be a slight circumstance on which to hold that a licence granted under Div 1 is granted "for the purposes of the Act", but according to the tenor of the Act taken as a whole it cannot be doubted that a licence granted under the Division is granted "for the purposes of the Act". The terms of the licence itself confirm this view. Although a mere or bare licence is revocable at will, restrictions on the right of revocation may arise out of the terms upon which or the purpose for which it is granted. Thus a licence is not revocable if it is coupled with a grant, the purpose of the licence being to support the grant. But it would seem even in such a case there is an implied term that the licence is revocable on the expiration of a reasonable time for exploitation of the grant: see Reid v Moreland Timber Co Pty Ltd (1946) 73 CLR 1 per Dixon J at 13. A licence issued to a person to enable him to carry on a business would not be revocable at will. In this respect the remarks of Barwick CJ in Banks v Transport Regulation Board (Vic ) (1968) 119 CLR 222 at 231 are in point. There is now considerable authority to the effect that the right to revoke a licence may depend upon implications to be made of provisions deemed reasonable having regard to the express terms of the licence and the nature and purpose of the transaction. Thus in Winter Garden Theatre (London) Ltd v Millennium Productions Ltd [1948] AC 173 at 204 Lord McDermott speaking with reference to a licence with no provision for termination said: "... even if an onus rests on the appellants in this matter, the whole tenor of the letters of 10 June 1942, and the nature of their subject-matter, seem to me to negative, quite definitely, the idea of irrevocability so strongly urged on behalf of the respondents. The expressed purpose of the licence, the periodic payments, the complete retention of possession by the appellants, the various stipulations which give each of the parties a close and lively interest in the conduct and integrity of the other while the licence lasts and, not least, the provisions of para (c) of cl 6 of the letter agreement as to the maintenance of the premises and the state and condition in which they are to be left on the termination of the licence, all point to this conclusion and away from the notion that the permission of the appellants was perpetual. For these reasons, which I need not elaborate, I am of opinion that on the construction of this contract the licence was revocable during the period material to this appeal."

Again the susceptibility to termination of contractual rights and interests notwithstanding that they are on their face perpetual is illustrated by Staffordshire Area Health Authority v South Staffordshire Waterworks Co [1978] 1 WLR 1387. In that case the defendant, a water corporation, in 1929 had agreed pursuant to statutory authority to supply water to the plaintiff "at all times hereafter" for payment at a fixed rate. The Court of Appeal held as stated in the headnote: "... but as the agreement contained no express provision for termination, the question whether the water company could show that a power to determine it on reasonable notice should be inferred depended on their establishing that having regard to all the existing circumstances, and in particular the statutory background, the parties presumably intended such power of termination when they entered into the agreement in 1929; on that approach the literal construction of the words 'at all times hereafter' as meaning 'in perpetuity' was untenable, for it was incredible that the water company, being bound by an Act of Parliament to supply water to the hospital on concessionary terms, would have intended to bind themselves by an agreement to supply not only what they were bound to supply under the Act, but in addition the first 5000 gallons per day free of cost and thereafter an unlimited supply at a price fixed once and for all; and that those matters did require a power to be inferred making the agreement terminable at all times on reasonable notice": see per Lord Denning MR at 1395-7, per Goff LJ at 1401-3 and per Cumming-Bruce LJ at 1405-6.

As to Div 1 of Pt V of the Customs Act if one refers to s 78 alone the indication is that the designation of warehouses as licensed warehouses is a matter for the Minister. The terms of the section speak with reference to the time of the deposit of goods and the question which arises when depositing goods or with respect to goods already deposited is whether at that particular time, the warehouse in question is licensed. The inquiry is not, has this warehouse been licensed but rather is it today a warehouse licensed by the Minister. The inference from s 78 would be that whether a warehouse was licensed at any particular time was a matter for the Minister and that licences already granted might be revoked at any time. So far as s 78 is concerned a bare licence might appear to be in contemplation. But the rest of the Division materially qualifies that position. The Act and the Regulations appear to proceed on the basis that the licence and accordingly the designation of the relevant premises as a licensed warehouse may well persist for years. Thus s 95 and also the provisions in regs 50 and 51 with respect to fees contemplate a period of at least a year and possibly an indefinite number of years. The provisions of ss 81, 92, 94, 98 and 101 are also relevant.

There is no suggestion in the Customs Act that failure on the part of the licensee to observe any of his duties other than in respect of payment of licence fees will entitle the Minister to revoke the licence. So far as the Act is concerned the only reference to cancellation of a warehouse licence is the provision for cancellation for non-payment of licence fees contained in s 81. In this respect Div 1 of Pt V is to be contrasted with Div 2 of Pt XI which provides for the licensing of customs agents in which there are provisions for revocation after elaborate procedures have been gone through.

However, it is to be observed that circumstances may arise as a result of which the continuance of the licence issued under s 78 would be quite incompatible with the fundamental purposes of the Customs Act. And it is to be inferred from the provisions of the Act and the terms of the licence that a licence granted under the Act is granted for the purposes of the Act. The general contemplation of the Act therefore could be thought to be that a licence once granted should, unless by reason of supervening circumstances rendering the continuance of the licence incompatible with the purpose of the Act, continue indefinitely, the law being satisfied that the statutory rights and duties would adequately provide for the security of the goods in the warehouse and the protection of the revenue. As stated by O'Connor J in R v Lyon (1906) 3 CLR 770 at 784:--

There are two main underlying principles in the Act which must not be lost sight of. The first is this: the whole policy of the Customs Act, as indicated by a number of sections, is that, from the time of importation until the time of paying duty, the customs shall not lose control of the articles imported. That is indicated directly in s 30, which provides that imported goods shall be subject to the control of the customs from the time of importation until delivery for home consumption or exportation. The object of that provision, if it were necessary to give any reasons for its enactment, is obvious; if once goods go into home consumption, that is, into circulation, it becomes almost impossible to trace them. The only security the customs authorities could have in such a case for the payment of duty would be in most cases the personal security of the importer. Therefore it is, if the Act is to be effective, that all through the dealings with the goods, from the time they are first imported until duty is paid, they must be kept under customs control.

It would be quite incompatible with the purposes of the Act that premises the buildings on which were destroyed wholly or in part should continue to be a licensed warehouse. In this respect the purposes of the Act are that the goods on which duty has not been paid whether those of the licensee or of other persons should be kept with adequate security until duty is paid. Such security depends at least on the quality of the premises.

It is apparent also that it would be incompatible with the purposes of the Customs Act that dutiable goods be deposited in the premises of a licensee whose integrity in particular respects is of low degree. There is a certain maximum of risk which the public interest could tolerate. It is to be observed also that in granting a licence in respect of premises the personality and character of the licensee are of great importance. The contemplation that the licence may continue indefinitely for years, or for ever, adds point to this. Licences may be granted to companies, the control of which may change overnight. The character of the new controllers of the company is a vital matter. That the existence of a licence in respect of particular premises may become incompatible or inconsistent with the purposes of the Customs Act may occur no doubt in an infinite variety of events but the following are well within the bounds of reasonable possibility:--

(a)
the building may be so damaged by fire or other cause so as to become insecure from the point of view of theft and weather and the licensee may have exhibited no inclination or capacity to repair it;
(b)
the identity of the persons controlling a licensee company may change and the new controllers may be persons of bad character;
(c)
the licensee himself may be revealed as a person of bad character or become insane;
(d)
the licensee may persistently permit the use of the premises for dangerous activities such as storage of explosives or dangerous substances;
(e)
the licensee may persistently permit the use of the premises for illegal purposes.

The power to revoke a licence where the circumstances are such that the continuance of the licence is incompatible with the purposes of the Customs Act, if it exists, depends rather upon the terms to be implied in the transaction between the Minister and the licensee constituted by the licence which the statute authorizes rather than upon any express or implied term in the statute. One looks for the power not in the statute itself but in the transaction authorized by the statute. The terms of the transaction itself are complementary to the statutory provisions: cf James Paterson & Co Pty Ltd v Melbourne Harbor Trust Commissioners , supra.

The defendant's contention is that a licence granted to a company pursuant to Div 1 of Pt V of the Customs Act continues for ever unless the company is dissolved. This is, to say the least, a startling proposition. In my view it may be accepted that on its proper interpretation the Act does not contemplate or authorize revocation of a licence merely for default on the part of a licensee in observance of duties imposed upon him by the Division. Also the provisions of ss 42 to 48 of the Customs Act authorizing the Customs to require security from time to time to his satisfaction for the due and proper conduct of a licensed warehouse might render tolerable situations which would otherwise be intolerable and restrict the range of circumstances in which the existence of the licence may be incompatible with the purposes of the Act. But the whole purpose of the licensing system being to provide facilities for the efficient and convenient administration of the Customs Act, the safety of goods deposited in warehouses and the protection of the revenue, the suggestion that the Act contemplates that a licence once given lasts for ever provided the fees are paid on time is quite unacceptable.

Having regard to the foregoing it would appear that circumstances might arise in which the very existence of the licence is incompatible with the purposes of the Customs Act. In such circumstances I would consider that the Minister might revoke the licence. After all the Act itself contemplates revocation for reasons which, when put against the existence of a potentially perpetual licence, appear quite trivial: see s 81. Of course where revocation was thought to be appropriate on grounds discussed above it would be a condition thereof that reasonable notice be given to the licensee, and in cases other than class II licences to other persons having interests which revocation would affect, and that the requirements of natural justice be observed. However notwithstanding the reasons for revocation in the statement delivered by the Collector to the Tribunal under s 37 of the Administrative Appeals Tribunal Act it was not contended before the Tribunal or the court that the Minister acted on the view that circumstances had arisen by reference to which the continued existence of the licence was incompatible with the purposes of the Customs Act. Nevertheless the foregoing considerations in my view, do indicate that revocation of the licence is not in all circumstances beyond the power of the Minister.

Jurisdiction of the Administrative Appeals Tribunal where power to revoke is absent

Whether on the facts alleged in the reasons given by the plaintiff to the Administrative Appeals Tribunal under s 37 of the Administrative Appeals Tribunal Act 1975 it was arguable that the misconduct of the licensee referred to therein created a situation with which the continued existence of the licence was incompatible justifying revocation was not the subject of argument. Of course there were conditions imposed by the Collector himself. But it is not apparent from the reasons under s 37 nor was it contended that there were breaches of any of such conditions. Nor was it contended that circumstances had arisen by reference to which the continued existence of the licence was incompatible with the purposes of the Customs Act. It is necessary therefore to consider the appeal on the basis that there was no statutory right to revoke the licence and no right to revoke for breaches of express or implied conditions of the licence.

The jurisdiction of the Tribunal is to review decisions made in the exercise of powers conferred by specified enactments (ss 25(1) and 25(2)) and decisions made under various provisions of specified enactments (ss 25(4) and 26(2) and the Schedule to the Act). Provided that the terms used to designate decisions as reviewable decisions may properly be construed as including decisions made in the course of administration of a relevant statutory provision in purported implementation of the purposes thereof, although in fact no authorized by the provision, I would see no ground for not adopting that construction. In his reasons for decision the learned President of the Tribunal said in effect that although the decision to revoke the licence had no legal consequences nevertheless, provided that that decision was made in the intended exercise of powers under the Customs Act whether the decision-maker had those powers or not the decision was "made in the exercise of powers conferred by the Customs Act" and was therefore reviewable by the Tribunal. He noted that if it were the case that an administrative act performed by an officer genuinely with the intention of exercising powers which he believed although erroneously, that he had under an Act, was not reviewable by the Tribunal, it would follow that many administrative acts, review of which would seem to be within the objectives of the Administrative Appeals Tribunal Act would also be excluded. His Honour said:--

When an enactment confers a power, and defines expressly a condition of its exercise (whether as a condition precedent to the power being available for exercise or as a condition governing the manner in which the power is to be exercised), an attempt to exercise the power without fulfilling or observing the condition falls outside the power conferred. Equally, the conditions implicit in the grant of a statutory power -- conditions which the general law defines according to the terms of the statute and the nature of the power -- must be fulfilled and observed, else an attempt to exercise the power will fall outside it: see per Barwick CJ in Salemi v Minister for Immigration and Ethnic Affairs (No 2 ) (1977) 14 ALR at 4.
If a literal construction of s 25(1) were adopted, the non-fulfilment or non-observance of the conditions governing the valid exercise of powers would go without correction by the Tribunal. Further, its remedies would be excluded if the decision-maker took irrelevant considerations into account in exercising a discretion or used his discretions to thwart or run contrary to the policy of the statute ( Padfield v Minister of Agriculture and Fisheries [1908] AC 997), or misunderstanding the nature of the matter for his decision, failed to decide it ( Green v Daniels (1977) 13 ALR 1) or did not act fairly in exercising his power ( Heatley v Tasmanian Racing and Gaming Commission (1977) 14 ALR 519). The inconvenience of this construction would appear even more manifest if the invalidity should appear only in the course of a hearing before the Tribunal. Then the Tribunal, perceiving the injustice done by the excess of power, would be constrained to send the applicant away without remedy, comforting him with the advice that if he should bring proceedings in a court of competent jurisdiction to challenge the validity of the decision, and if the court should determine the issues in the same way as they appeared to the Tribunal, the decision would be held invalid, and the applicant might then expect that the decision-maker should start again and, provided the decision-maker did not make a similar error, a fresh unfavourable decision could be brought up for review before the Tribunal once more. It seems absurd that immunity from review could be secured by proof that the decision-maker's exercise of power so far miscarried as not to be a valid exercise of the power at all" (1978) 1 ALD 167 at 178.

The question whether the Tribunal has jurisdiction to review a particular administrative decision made by an administrator dealing with a subject the administration of which falls within the general purposes of the relevant Act but which is itself not authorized by the Act, is one of difficulty. Such a decision may be unauthorized because there is just no power to make it or the power to make it is subject to some condition which is not fulfilled, or because it was made in circumstances by reason of which its validity is undermined. If the condition is that a particular requirement be satisfied the decision-maker may have wrongly assumed it to be satisfied or after enquiry has wrongly found it to be satisfied.

It is a possible view that the Tribunal lacks jurisdiction to review a decision which there is simply no power to make, but has jurisdiction where there is conditional power to make such a decision whether or not the condition is satisfied. However, in the light of the observations following, it is my opinion that the solution of the problem is not to be found in the division of unauthorized decisions into those two categories. Rather it is to be found in the nature and objects of the Administrative Appeals Tribunal Act and in particular in the construction of the terms in which reviewable decisions are defined in ss 25 and 26, and the Schedule to that Act.

In this connection I find it difficult to think that the Administrative Appeals Tribunal Act provides for a review of decisions which are invalid because of the non-fulfilment of some condition essential to the exercise of power conditionally residing in the decision-maker or of some other error destroying the validity of the decision but not of the decisions made in circumstances where the power to make a decision on the matter decided was completely absent. It would seem that in each case although in fact a decision has been made, each so far as legal effect is concerned is a nullity. In relation to the cognate problem of jurisdictional error it was pointed out by Lord Reid in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 at 170 that there are no degrees of nullity. His Lordship said: "There are a number of reasons why the law will hold a purported decision to be a nullity. I do not see how it could be said that such a provision protects some kinds of nullity but not others: if that were intended it would be easy to say so."

The various ways in which legal validity of an administrative act may be destroyed may be noted. Validity is destroyed where there is an invalid delegation of power, where the administrator acts under dictation, in bad faith, takes into account irrelevant considerations, or fails to have regard to relevant considerations, acts unfairly or acts inconsistently with the law. In all such circumstances the administrator's act has no legal effect. It is in such situations that the relevant vice may be discovered only after the complete hearing of an application to the Tribunal and possibly after decision is reserved. The practical difficulties in implementing the Tribunal's charter for uncomplicated review are obvious if the situation were that on such discovery the review itself became unauthorized. Traps and ambushes would characterize the operations of the Tribunal in a most embarassing way.

Every decision depends upon some questions of fact and probably some question of law, and the decision-maker cannot perform his function without making some decision of fact and probably also of law. The problem arises as to what is the criterion of those decisions of fact and law which he must make and which, if he errs will render his decision a nullity and those which do not. This matter was referred to by Lord Denning MR in Pearlman v Keepers and Governors of Harrow School [1978] 3 WLR 736 at 743 in relation to the allied problem of jurisdictional error:--

Jurisdictional error
But even if s 107 does apply to this case, it only excludes certiorari for error of law on the face of the record. It does not exclude the power of the High Court to issue certiorari for absence of jurisdiction. It has been held that certiorari will issue to a county court judge if he acts without jurisdiction in the matter: see R v Hurst ; Ex parte Smith [1960] 2 QB 133. If he makes a wrong finding on a matter on which his jurisdiction depends, he makes jurisdictional error; and certiorari will lie to quash his decision; see Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 at 208 per Lord Wilberforce. But the distinction between an error made within the jurisdiction -- is very fine. So fine indeed that it is rapidly being eroded. Take this very case. When the judge held that the installation of a full central heating system was not a 'structural alteration ... or addition' we all think -- all three of us -- that he went wrong in point of law. He misconstrued those words. That error can be described on the one hand as an error which went to his jurisdiction. In this way: if he had held that it was a 'structural alteration ... or addition' he would have had jurisdiction to go on and determine the various matters set out in para 2(2)(b), (c) and (d) of Sched 8. By holding that it was not a 'structural alteration ... or addition' he deprived himself of jurisdiction to determine those matters. On the other hand, his error can equally well be described as an error made by him within his jurisdiction. It can plausibly be said that he had jurisdiction to inquire into the meaning of the words 'structural alteration ... or addition'; and that his wrong interpretation of them was only an error within his jurisdiction, and not an error taking him outside it.
That illustration could be repeated in nearly all these cases. So fine is the distinction that in truth the High Court has a choice before it whether to interfere with an inferior court on a point of law. If it chooses to interfere, it can formulate its decision in the words: 'The court below had no jurisdiction to decide this point wrongly as it did'. If it does not choose to interfere, it can say: 'The court had jurisdiction to decide it wrongly, and did so.' Softly be it stated, but that is the reason for the difference between the decision of the Court of Appeal in Anisminic Ltd v Foreign Compensation Commission [1968] 2 QB 862 and the House of Lords [1969] 2 AC 147.

The learned President said that the suggestion that the Tribunal did not have jurisdiction where decisions had depended upon nonfulfilment of some condition or wrong finding of fact was inconvenient and unsound. But of course it is necessary to find in the Administrative Appeals Tribunal Act itself indications that the Tribunal's powers do extend to dealing with such cases where the decision or the step implementing it was not authorized by the relevant statutory provision, in particular, that in speaking of decisions in s 25 the Administrative Appeals Tribunal Act was not speaking of valid decisions. In the end the question falls to be decided according to the proper construction of those provisions of the Act which define the classes of decisions which the Tribunal has jurisdiction to review, namely decisions "made in the the Schedule to the Act, decisions made "under" various statutory provisions, in this case under Div 1 of Pt V of the Customs Act: see ss 25(1) and (4), 26(1) and (2) and the Schedule.

In construing these provisions what may be seen as the objective of the Administrative Appeals Tribunal Act is I think of paramount importance. It is clear that in enacting the Act, Parliament had in mind to provide for the review by an independent Tribunal of certain administrative decisions by reference to standards of good government: cf Sullivan v Department of Transport (1978) 1 ALD 383 at 386 ; 20 ALR 323 at 326. True it is that administrative errors may well occur in the performance of valid and legally effective administrative acts. And of course it might have been the intention of Parliament to empower the Tribunal to review only those decisions which are legally effective. In that case the function of the Tribunal would be restricted to considering whether or not in exercising its legal power validly the administrator making the decision had acted in accordance with the principles of fairness and good government. But to construe the Act as providing for the review of only such errors would leave untouched those administrative acts which are invalid and legally ineffective for one reason or another, but were performed in the course of action falling within the general purposes of a statute. To my mind such a situation would not be compatible with the objective of the Administrative Appeals Tribunal Act. If administrative decisions are to be subjected to review in the course of good government exclusion from review of decisions made without power would remove from review of decisions most in need of review. The very absence of guidelines as to the exercise by the Tribunal of its powers of review is a most significant feature supporting a conclusion that review is to proceed by reference to the standard of good government. It is a short step to infer that the overriding purpose of the Act is to promote good government by those carrying out the actual practical task of administering Acts of Parliament and making decisions incidental to that task.

It is important to observe that the Tribunal is not constituted as a body to review decisions according to the principles applicable to judicial review. In essence the Tribunal is an instrument of government administration and designed to act where decisions have been made in the course of government administration but which are in the view of the Tribunal not acceptable when tested against the requirements of good government.

It is significant also that the Administrative Appeals Tribunal Act contemplates hearings free from legal technicalities without formality and with as much expedition as possible. The Tribunal itself is required to ensure that the applicant has a reasonable opportunity of presenting his case. Even before any investigation of the merits or validity of a decision the Tribunal is authorized to suspend that decision, taking into account the interest of persons affected by the review: see ss 33, 34 and 41(2) of the Administrative Appeals Tribunal Act.

If as indicated above before the Tribunal it were necessary in every application for review to determine whether the decision or the action implementing it was not a nullity, technicality would be introduced at the outset and in cases where the authority of the administrator to make the decision in question depended upon the existence of a particular state of facts it could be known until those facts were investigated and ruled upon whether he had authority to make the decision. It would be strange that having completed that procedure and reaching a decision that the facts were not in existence so that the decision was revealed as one that could not and should not have been made the Tribunal should thereupon cease to have any jurisdiction in the matter.

It is to be noted also that the subjects of review are decisions. If an administrator makes a particular decision in the course of government administration, then whether or not he is authorized to do so, there is in fact a decision made. The fact that that decision cannot affect legal rights or liabilities is irrelevant to that fact.

There is a distinction also between a decision, the steps that may be taken to implement it and the legal effect thereof. It does not appear to me to be sound to regard a decision to take certain action as a nullity because such action if taken will not be legally effective. In the case under appeal the letter of 31 October 1977 was the communication of the decision which the Collector had made. The decision preceded that letter. The letter was no doubt the act of purported revocation and because of the statutory definition of "decision" (see s 3(3) of the Administrative Appeals Tribunal Act set out below) that act may be a decision within the meaning of s 25. But to decide to revoke the licence was also itself a decision according to the natural meaning of that term. Such a decision may have serious results for the citizen. No doubt the officers of the department will act upon it. Thus, after the decision in question had been made they would be expected to refuse to permit goods to be entered to the defendant's warehouse. In this case, also action was taken against the licensee under s 94 of the Customs Act. That action did not necessarily depend upon revocation but in all probability it would not have been taken had the decision to revoke the licence not been made. It is therefore reasonable to construe the word "decision" in its natural meaning, namely, "the action of deciding": see Shorter Oxford English Dictionary . The advice of the Privy Council in Calvin v Carr (1979) 22 ALR 417 at 425-6 delivered by Lord Wilberforce is in point. His Lordship said:--

The first issue arising in this appeal is whether the committee had any jurisdiction to enter upon the appeal. The appellant's proposition is that it had not, for the reason that the stewards' 'decision' was, on the assumption stated, void. A condition precedent, it was said, of an appeal was the existence of a real, even though voidable, decision.
... This condition might be better expressed by saying that the decision is invalid or vitiated. In the present context, where the question is whether an appeal lies, the impugned decision cannot be considered as totally void, in the sense of being legally non-existent. So to hold would be wholly unreal. The decision of the stewards resulted in disqualification, an effect with immediate and serious consequences for the appellant. This was a fact: The appellant's horses could not run in, or be entered for, any race; the appellant lost his membership of the Australian Jockey Club and could be excluded from their premises. These consequences remained in effect unless and until the stewards' decision was challenged and, if so, had sufficient existence in law to criminal proceedings. In Crane v Public Prosecutor [1921] 2 AC 299 ; [1921] All ER Rep 19, there were irregularities at the trial which had the effect that the trial was 'a nullity'. Nevertheless an appeal was held to lie to the Court of Criminal Appeal.
... White v Kuzych [1951] AC 585 ; [1951] 2 All ER 435; was a trade union case where an investigating committee had acted contrary to natural justice in finding the appellant guilty of offences against the union by-laws. He did not appeal, as he might have done under the rules, to the Federation, but brought an action in court for a declaration that his expulsion was invalid. This Board held that the original conclusion was a 'Decision' within the relevant appeal rule so as to be subject to appeal to the Federation.

In this connection I repeat and adopt the observations of the learned President where he said:--

A decision is a fact, to be distinguished from its legal consequences. A decision made beyond power but in its intended exercise does not carry the same legal consequences as it would have carried if there had been power to make it. Axiomatically, the legal consequences which it does carry depend upon the effect attributed by the law to the fact of the decision ...
Where a decision is made beyond power, the legal effect which the decision-maker seeks to achieve is denied; but that says nothing as to whether the decision may be reviewed, quashed, or otherwise affected by order of a court or of an appeal tribunal. The denial of the legal effect desired does not itself prevent the decision from having the effect of enlivening a jurisdiction conferred by law upon a court or appeal tribunal to review, quash or otherwise affect the decision. The right to invoke the jurisdiction depends upon the terms of the law creating that right and conferring jurisdiction to grant relief against the decision in question. Where 'decision' is used in the provisions of the Administrative Appeals Tribunal Act relating to a right to apply for review, it is referring to a decision made in fact, and not to the effect which the decision may have under the power in the intended exercise of which it was made": (1978) 1 ALD 167 at 179-180.

It is clear in addition however, that Parliament intended the word "decision" to refer not only to decisions made but also to action taken to implement those decisions. This is clear from the definition of "decision" contained in s 3(3) of the Administrative Appeals Tribunal Act, which is in the following terms:--

(3) A reference in this Act to a decision includes a reference to --

(a)
making, suspending, revoking or refusing to make an order or determination;
(b)
giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c)
issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d)
imposing a condition or restriction;
(e)
making a declaration, demand or requirement;
(f)
retaining, or refusing to deliver up an article; or
(g)
doing or refusing to do any other act or thing.

Accordingly it is my view that the fact that a decision is made by an administrator to take action which he has no power to take in a legally effective way does not exclude that decision from review by the Tribunal.

But to be reviewable such a decision must satisfy the criterion that it may properly be described as a decision made in the exercise of powers conferred by a relevant enactment, or, for the purpose of this case made under Div 1 of Pt V of the Customs Act: see ss 25(4), 26(1) and (2) and the Schedule. There is authority that in an appropriate statutory context expressions such as "in pursuance of", "done under", "in carrying this Act into effect" may be considered as referring to acts performed outside the authority conferred by the relevant statute. In Little v Commonwealth (1947) 75 CLR 94 a claim was brought against the Minister for the Army in respect of the plaintiff's arrest and detention pursuant, allegedly, to the National Security Act 1939 and the National Security (General) Regulations. The National Security Act 1939 provided by s 13(3) that "no action shall lie against the Commonwealth, any Commonwealth officer, any constable or any other person acting in pursuance of this section in respect of any arrest or detention in pursuance of this section ...". It was held by the High Court that the detention and arrest were unlawful and that but for s 13 the plaintiff was entitled to relief. However, the defence under s 13 was upheld because it appeared that the officers responsible for the arrest and detention had acted honestly and bona fide in the belief that the powers to carry out the arrest and detention were conferred on them by the Regulations and that the acts complained of were performed in pursuance of the general purposes of the National Security (General) Regulations. The relevant principle was set out by Dixon J at 112 where he said: "The truth is that a man acts in pursuance of a statutory provision when he is honestly engaged in a course of action that falls within the general purpose of the provision. The explanation of his failure to keep within his authority or comply with the conditions governing its exercise may lie in mistake of fact, default in case of judgment, or ignorance or mistake of law. But these are reasons which explain why he needs the protection of the provision and may at the same time justify the conclusion that he acted bona fide in the course he adopted and that it amounted to an attempt to do what is in fact within the purpose of the substantive enactment."

At 113 he said: "For the reasons I have indicated, I think that the words 'any arrest or detention in pursuance of this section' occurring in s 13(3) of the National Security Act 1939-1940 cover an arrest or detention by a constable who with some facts to go upon honestly thinks that what he has found or suspects is an offence against the Act committed or about to be committed by the person whom he arrests or detains notwithstanding that the arrest and detention are not actually justified and that his error or mistake is in whole or in part one of law."

In Hamilton v Halesworth (1937) 58 CLR 369 where the relevant expression was "anything done in pursuance of this Act" it was said in the joint judgment of Dixon and McTiernan JJ at 381: "The question is not whether what the defendant did was justified in law but whether it was done in pursuance of the Police Offences Act, and this means in purported or assumed pursuance thereof".

In R v Clyne ; Ex parte Harrap [1941] VLR 200 at 201, in construing the meaning of the phrase "under Pt VI of the Police Offences Act 1928 (Vic)" it was said by O'Bryan J that "under" is perhaps more aptly translated by the expression "pursuant to" rather than by the phrase "by virtue of".

Once it appears that phrases such as those discussed above are capable of extending to acts not authorized by the relevant statute then, having regard to the nature of the Administrative Appeals Tribunal Act as set forth above there is, in my opinion compelling reason to accord to the relevant expressions in ss 25 and 26 of the Administrative Appeals

Tribunal Act and the Schedule thereto a liberal meaning appropriate to the purposes of the Act as appearing therein. As is pointed out by the Chief Judge in his reasons for judgment herein, for the purposes of statutory provisions such as those considered in Little's case , supra, and Trobridge v Hardy (1955) 94 CLR 147 it is inevitable that there should be a requirement that the defendant acted honestly because the statutory provisions in question operate to provide a defence in cases in which action had been taken in excess of statutory powers. However, in the case of a statute the object of which is to review administrative decisions on the ground that they are not in accordance with the requirement of good government, a requirement that the administrator should have acted honestly in the belief that his action was within his statutory power has no place. No doubt it would be a rare occurrence that such a requirement would not be satisfied, but the object of the Administrative Appeals Tribunal Act is to provide review of all decisions made under statutory provisions. 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 is that the administrator who made the decision actually made it in purported or assumed pursuance thereof.

It may be a question whether the principles of construction applied in relation to the statutes granting public officials immunity in respect of wrongful acts committed by them "in pursuance of" a statute are appropriate to be adopted in respect of the words "decision made under Div 1 of Pt V of the Customs Act" in cl 2(b) of Pt XII of the Schedule to the Administrative Appeals Tribunal Act. In my view they are. The construction adopted cannot be regarded as something peculiar to the subject matter to which those statutes related or as resulting from any process other than the determination of the meaning of the expressions in question according to the natural meaning of the words used, read in the context of the relevant statute and the purpose thereof.

In a sense the Administrative Appeals Tribunal Act is the other side of the coin of statutory provisions giving immunity on the principles in Little's case , supra. Just as it is that in respect of a wrongful act committed bona fide "in pursuance of" a statute that the actor is to be protected so it is in respect of a wrongful decision made in pursuance of a statute that provision for review is appropriate.

In my opinion, adopting what I have called a liberal construction of the relevant expressions in ss 25 and 26 and the Schedule to the Administrative Appeals Tribunal Act which is appropriate to the nature and object of that Act, the necessary conclusion is that those decisions are reviewable which are made by an administrator in purported or assumed pursuance of the relevant statutory provision. The decision to revoke the defendant's licence was obviously made by the Collector in purported or assumed pursuance of Div 1 of Pt V of the Customs Act. Accordingly it was a decision made under that provision and reviewable by the Tribunal. That in making the decision to revoke the licence the Collector was engaged in a course of action within the general purposes of the Division cannot be seriously doubted. The purpose of the Division is the control of the warehousing of dutiable goods in a manner thought conducive to the protection of the revenue and the ordered and safe disposition of dutiable goods. It appears that the decision to revoke the licence was taken to achieve this purpose and it is clear from the reasons submitted to the Tribunal pursuant to s 37 of the Administrative Appeals Tribunal Act that the decision was taken in purported pursuance of the relevant statutory provision. Accordingly the decision was reviewable by the Administrative Appeals Tribunal.

Because of the view of the jurisdiction of the Administrative Appeals Tribunal to review decisions made in fact, as indicated above, it appears to me that the jurisdiction of the Tribunal to hear the appeal was not affected because the defendant, at the hearing of the appeal, said that he was raising a jurisdictional point. That statement should be understood as an assertion that he was seeking a review of the actual decision made on the ground, inter alia , that it was a decision the Collector was not authorized to make.

The Collector, lacking power, in the circumstances relied upon in this appeal, to revoke the defendant's warehouse licence and the Administrative Appeals Tribunal possessing jurisdiction to review the Collector's decision and make the order it did, I would dismiss this appeal with costs.


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