The (Blue) Sky is the limit! Guidance for determining whether a decision is a nullity

“The decision-maker did not follow the law”, complains the Managing Director. “Surely that means that I don’t need to follow the decision”.

Consider, for example, the case where a planning authority makes a decision without having conducted the necessary public consultation. Or the case where an environmental authority imposes additional requirements on a construction project without giving the developer the statutory period to make submissions.

In those instances, is the decision null and invalid?

For many years, the applicable law was uncertain. Courts flirted with distinctions between mandatory and directory provisions, and with notions of substantial compliance. In 1998, however, the High Court gave a conclusive answer in the well-known decision of Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355. The Court held that issue of validity is determined by asking whether it was “a purpose of the legislation that an act done in breach of the provision should be invalid”.

A recent case study

This issue recently arose in AVN20 v Federal Circuit Court of Australia [2020] FCA 584.

The Federal Circuit Court published the names of two applicants for a protection visa in contravention of section 91X(2) of the Migration Act. The purpose of section 91X(2) is obvious: it confers anonymity on those visa applicants who claim to have a well-founded fear of persecution.

The applicants said that this breach invalidated the Federal Circuit Court’s decision dismissing their case. They said this was because the clear and unqualified terms of section 91X(2), together with its important purpose, led to the conclusion that a breach of that provision must deprive any associated decision of validity.

Justice Kenny disagreed. In her view, it was important that:

• the Migration Act did not say that a breach of section 91X(2) would invalidate any decision. Instead, there were other statutory consequences that applied, including that the applicants could seek leave to make a further protection visa application;
• there was no necessary connection between the Federal Circuit Court’s orders (being the decision that was challenged) and the publication of the Federal Circuit Court’s reasons (being where the breach of section 91X(2) occurred). It would be absurd to say that the Federal Circuit Court’s orders could be valid at the time they were made, but then become invalid later once the reasons were published; and
• the breach of section 91X(2) does not impinge on the capacity of the court to discharge its function.

Thus, Justice Kenny concluded that section 91X(2) created a duty of imperfect obligation: a “duty” in name but which cannot be enforced in the courts. Although the Court has the power to both revise its reasons to remove references to those names and to suppress the offending portions of any judgment, its orders remain valid regardless of whether this is done or not.

AVN20 makes clear that decisions are not invalid just because they are made in non-compliance with “important” provisions. Instead, it is always necessary to consider the entire statutory framework, including any other remedies that Parliament has provided for non-compliance.

Conclusion

Returning to the example of the Managing Director at the beginning: their thought process entirely rational, but unfortunately also wrong. AVN20 is just another example of the many cases where courts have held that it was not the purpose of the legislation that a decision should be invalid, even though the decision did not comply with some statutory requirements. Indeed, although a “duty” might appear to exist in a statute, it might actually be more akin to a beseechment or exhortative.

This does not mean that there are no possible means to challenge a decision. Depending on the statute under which the decision was made, it may be possible to seek merits review (either internally or externally) and/or judicial review because the decision may have consequential effects.

If you think that a decision-maker has not followed the rules properly, you should seek legal advice about any associated consequences. Simply ignoring the decision and treating it as “null” is unwise; if a Court ultimately finds that the intention of Parliament was that a decision has force notwithstanding non-compliance with the direction, exposure to penalties and other statutory consequences might follow.

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