Collector of Customs (NSW) v Brian Lawlor

41 FLR 338

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(Judgment by: Bowen CJ)

Collector of Customs (NSW)
vBrian Lawlor

Court:

Judges:
Bowen CJSmithers J
Deane 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

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Judgment by:
Bowen CJ

This is an appeal by the Collector of Customs, New South Wales (hereafter called the Collector) from a decision of the Administrative Appeals Tribunal given on 21 July 1978 concerning the revocation of warehouse licence No 3152 issued to Brian Lawlor Automotive Pty Ltd (hereafter called Brian Lawlor) in respect of premises known as Bri-Law Bond: see (1978) 1 ALD 167.

The matter comes before the Federal Court of Australia on what is described as an appeal from the Tribunal under s 44 of the Administrative Appeals Tribunal Act 1975 (Com). Such an appeal is given by that section only "on a question of law". When the matter comes before this court it is in the original jurisdiction of the court although described as an appeal. The court has power to hear and determine the so-called appeal and to make such order as it thinks appropriate by reason of its decision.

The facts are set forth in the reasons for judgment of Smithers and Deane JJ and I shall not repeat them.

The matters argued before the court may be summarized as follows:--

1.

That the warehouse licence in question was in its nature revocable.

2.

That there was to be implied in the legislation a power of revocation.

3.

That the Acts Interpretation Act 1901 (Com) s 33 applied to the grant of the written licence and had the effect of conferring a power of revocation.

4.

That the Tribunal should have held that it had no power to entertain the appeal which was made to it.

Dealing with the first matter, it is true that various types of licence, particularly those relating to land, have been held to be in their nature revocable but in these cases a paramount right exists in the licensor which he may assert by revoking the licence: Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 605; cf Winter Garden Theatre (London) Ltd v Millennium Productions Ltd [1948] AC 173. In such cases there is inherent in the licence a power of revocation. However, the position appears to be different in the case of a statutory licence such as that under the Customs Act 1901 (Com). There is nothing inherent in the nature of such a statutory licence which must lead to the conclusion that it is in its nature revocable: see Banks v Transport Regulation Board (Vic ) (1968) 119 CLR 222 at 231.

Clearly in the Customs Act there is no express power of revocation relating to a warehouse licence granted under s 78. Accordingly, it is necessary to consider whether the terms of the statute are such that the court should imply a power of revocation in respect of such a licence. In the Customs Act where a power to revoke a permission or licence has been intended to be conferred, there has apparently been no difficulty in saying so expressly: see, for example, s 71 B, and ss 183 A -183 C. Under Div 1 of Pt V of the Customs Act there are five classes of licensed warehouses. Class 1 is concerned with general warehouses; class II with private warehouses to be used only for warehousing goods the property of the licensee. In all cases it is provided by s 80 that the fees payable by licensees for warehouses shall be as prescribed, and shall be paid within such periods or at such times as are prescribed. Section 81 provides that in default of payment of any part of any licence-fee for 30 days after the prescribed time for payment the Minister may by 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. This last-mentioned provision for gazettal of notice to cancel the licence is no doubt in order to give notice to people who may have their goods in the warehouse, particularly where that is in the class of general warehouses. Section 92 imposes various duties on the licensee as to stacking and arranging the goods, providing lights and scales and so on and further provides for a penalty for breach of $100. Section 92 A provides for the keeping of records and a penalty for breach amounting to $250. Section 93 prohibits the opening of any warehouse except by authority and provides a penalty of $100. The effect of these sections is that various obligations are imposed by the Act. However, breach of these obligations is not stated to lead to revocation; on the contrary it leads to the imposition of a penalty. The conclusion at which I have arrived is that in the context in which s 78 appears in the Act, there is no basis for the court to make an implication of a power to revoke the licence.

The question arises whether a power of revocation is conferred by the Acts Interpretation Act 1901, s 33(3) which is in the following terms:--

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.

In my opinion, the Customs Act does confer a power to grant a warehouse licence, although in somewhat indirect terms, by s 78. There is not, in express terms, any power conferred "to make, grant or issue any instrument". Indeed, it would seem that so far as the Customs Act is concerned the power to grant a warehouse licence might be exercised either orally or in writing. This does not dispose of the question whether s 33 of the Acts Interpretation Act applies. It may be argued the power conferred by the Customs Act includes a power to grant a licence in written form and if the power is exercised in that way s 33 should be read as applying to confer a right of revocation. This depends upon the meaning of s 33. Clearly, it refers to the power not the manner of its exercise. The power to which it refers is a power to make grant or issue an instrument. Is the power to grant a warehouse licence involved in s 78 of the Customs Act such a power? I do not think it is. It is my opinion that s 33 of the Acts Interpretation Act did not operate to confer a power of revocation in the present case.

It may be practical and convenient in some cases for a licence to be granted upon conditions which either specify a length of time during which it is to operate or which reserve a power of revocation. In my opinion, such conditions would be within the power of the Collector to impose when granting a licence. However, in the present case, no such conditions were imposed. It appears to me that those conditions which were included in the licence in question and which have been set forth above, were not relevant to the present question. No argument was addressed either to the Tribunal or to this court to the effect that revocation could be supported by reason of any breach of the conditions included in the licence.

This brings me to the question whether the Tribunal had power to entertain the application which was made to it. The answer to this question could have important consequences for the Tribunal. It must depend upon the interpretation given to s 25 of the Administrative Appeals Tribunal Act. I do not think that any relevant distinction arises from the fact that the words "in the exercise of powers conferred by an enactment" are used in s 25(1) of the Administrative Appeals Tribunal Act and the words "under Division 1 of Part V of the Customs Act" are used in Pt XII of the Schedule to the Act and applied by s 26.

The Administrative Appeals Tribunal Act was passed in order to remedy the mischief described by the Commonwealth Administrative Committee in its Report, which was tabled in the Commonwealth Parliament on 14 October 1971. The Committee considered the existing law relating to appeals against administrative decisions as unduly technical and unsatisfactory and recommended a simpler and more broadly based system of appeals from such decisions. The Administrative Appeals Tribunal Act appears to be designed to go part of the way towards remedying that situation. It gives an appeal on the merits. The Administrative Decisions (Judicial Review) Act, passed subsequently and not yet proclaimed, supplements it by providing a simple procedure for approach to this court for an order of review of administrative decisions on legal grounds.

In the Administrative Appeals Tribunal Act a wide meaning is given to the word "decision" by s 3(3). In s 25 it appears to me that the word simply refers to a decision in fact made, regardless of whether or not it is a legally effective decision. The difficulty lies in interpreting the words "made in the exercise of powers conferred by that enactment". This may mean that it must be shown there was a decision made:--

(a)

in pursuance of a legally effective exercise of powers conferred by the enactment; or

(b)

in the honest belief that it was in the exercise of powers conferred by the enactment; or,

(c)

in purported exercise of powers conferred by the enactment.

The words "purported exercise" in (c) are used as including the notion that the official may be making his decision on the basis that he is exercising powers conferred by the enactment, whether or not on a proper interpretation of the enactment such powers are conferred.

The context of the Act appears to me to point against the adoption of interpretation (a). The Act is clearly intended to give a person whose interests are affected by an administrative decision an effective appeal, free of technicalities, against that decision on questions of fact and of law: see ss 25, 27, 28, 31, 33, 42 and 44. The adoption of interpretation (a) would remove the most significant area involving questions of law from the jurisdiction of the Tribunal. It would render the appeal in many cases useless. Whenever it appeared in proceedings before the Tribunal that there was an error of law by reason of which the decision was legally ineffective and that the applicant certainly needed relief, the Tribunal would at that point be obliged to refuse relief on the ground that it had no jurisdiction to entertain the application. It is a feature of administrative decisions that once made, even if unlawful, they have consequences which may adversely affect citizens, until such time as they are withdrawn due to a change of mind on the part of the administrative official himself or are set aside by the determination of a court or tribunal. It appears to me that the Act is designed to give a simple remedy in all such cases. I would reject interpretation (a).

Interpretation (b) would appear to be consistent with the approach adopted in Hamilton v Halesworth (1937) 58 CLR 369; Little v Commonwealth (1947) 75 CLR 94; and Trobridge v Hardy (1955) 94 CLR 147; and see Marshall v Watson (1972) 124 CLR 640 ; [1972] ALR 641. However, this interpretation brings in a subjective element. In the cases referred to this was appropriate. They concerned provisions designed to give protection to officials acting in pursuance of statutory provisions. It was natural and appropriate to hold that the defence afforded by the statute was available if it appeared that the official honestly believed he was acting in pursuance of the statute. Under s 25 it is the jurisdiction of the Tribunal, which is in question. 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. I would reject interpretation (b).

Interpretation (c) appears to me to be consistent with the context in the Administrative Appeals Tribunal Act. The Acts committed to the administration of each Minister and his Department are set forth in the Administrative Arrangements Orders published from time to time in the Gazette. There might be a rare case where a decision appeared to have no relationship to one of the Acts committed to the administration of the Minister or Department concerned. However, 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. There is nothing unusual in holding that an administrative decision which is legally ineffective or void is susceptible of appeal: see Calvin v Carr (1979) 22 ALR 417. I would adopt interpretation (c).

The learned President of the Tribunal, Brennan J, held that what s 25 required was a decision made in the intended exercise of powers conferred by the enactment. He referred to Hamilton v Halesworth (1937) 58 CLR 369 at 379 and Selmes v Judge [1871] LR 6 QB 724 at 728 which afford some support for his view. However, both cases concerned persons seeking to defend themselves by asserting they had acted "in pursuance of" a statute. It was appropriate to bring into consideration the state of their minds. I prefer the statement of the test under s 25 as I have expressed it in (c). A decision made in the intended exercise of powers will generally constitute a purported exercise of those powers. However, the test as formulated by the learned President appears to me to place an undesirable emphasis upon the intention, that is, the state of mind of the decision-maker. No doubt in many cases this would be proved by objective facts and these facts would satisfy the test expressed in either form. Nevertheless, it appears to me to be undesirable to make proof of intention the test. Indeed, there may be cases in which the objective facts might satisfy the test as I have formulated it in (c), where the same facts might make a conclusion as to intention difficult to reach.

Turning to the application of interpretation (c) to the present case, it appears to me that there was a decision to revoke the warehouse licence and this decision did purport to be made in the exercise of powers conferred by the Customs Act. Accordingly, in my view, the

Administrative Appeals Tribunal did not lack jurisdiction to entertain the application and deal with it.

One difficulty arises from the way in which the point arose in the present case. It was a point which was raised, amongst others, by the applicant. It was called by him a "jurisdictional point" and at his request with the consent of the Collector was treated separately prior to the taking of evidence on the other matters in issue. The Tribunal was faced with a situation where the applicant was asserting that there was no valid decision and, so it was argued, was making a case from which it would follow he was not entitled to be an applicant before the Tribunal and that the Tribunal lacked jurisdiction. This is an awkward proposition. It is not easy to see, if that proposition be sound, what its limits would be. It seems it might not prevent the Tribunal from deciding a similar question of power if it were raised by a respondent to an application. However, it would rarely be the respondent who was advancing an argument that there was an absence of power. But it seems possible also that if the Tribunal dealing with an application entered upon a consideration of the merits, and in the course of the hearing the applicant argued there was an absence of power, the Tribunal might have jurisdiction to determine that question, although this would seem to make it a matter of tactics.

Again, it may be suggested that this difficulty arises only where the decision by the departmental officer has been made under an enactment which confers no relevant power at all. I have difficulty in drawing a distinction between the case where it is said there is no decision because there is no relevant power at all in the enactment and those cases where it is said there is no decision, because the official in any one of a number of ways has travelled outside the confines of the power conferred, so that his decision was ultra vires . The first five kinds of error listed in s 5 of the Administrative Appeals (Judicial Review) Act may be used to indicate the kind of cases I have in mind. It does not appear to me that there are degrees of nullity: Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 at 170. Surely an applicant who raised a "jurisdictional point" on the ground the decision appealed from was a nullity on any of these grounds would, if the original proposition be sound, equally be asserting that there was no appealable decision, that he had no locus standi and that the Tribunal had no jurisdiction.

If that be so, the number of matters which would be removed from the Tribunal's jurisdiction, if there had to be a valid decision or a lawful exercise of powers conferred by an enactment, would be very large. It would mean that the appeal provided for by the Administrative Appeals Tribunal Act would fail to cover a wide range of administrative decisions and would further mean that the power to decide questions of law with an appeal to the Federal Court would be very restricted indeed.

If it is sought to limit the proposition to those cases where there is an absence of any power in the terms of the enactment, another difficulty has to be faced. Perhaps the proposition could be applied where there is no power at all, express or implied. There would then be no apparent relationship between the decision and the enactment. What of the case where there is no express power but the official seeks to rely on an implied power? This is what occurred in the present case. The question arises whether the proposition would apply where the contest is whether there is to be implied in the enactment the power to make the decision which is the subject of the appeal. Indeed, in the present case, presumably s 33 of the Acts Interpretation Act would have to be read with s 78 of the Customs Act.

In the view which I take as to the meaning of s 25 of the Administrative Appeals Tribunal Act, these questions do not need to be decided. As I have said, in my opinion an applicant to the Tribunal has standing and the Tribunal has jurisdiction provided there is a decision in fact and provided further that the decision purports to have been made in exercise of powers conferred by an enactment whether or not as a matter of law it was validly made and whether or not action on the basis there was power to make the decision was right or wrong.

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

In the present case the applicant established the necessary elements that there was a decision in fact and that it purported to be under an enactment or in exercise of powers conferred by an enactment, so the applicant had standing and the Tribunal had jurisdiction. When the applicant asserted the decision was legally invalid due to absence of power, he was mistaken in describing this as a "Jurisdictional point". The Tribunal had jurisdiction and was entitled to determine the legal question raised before it.

In the result I would dismiss the appeal with costs.