The nullity question
28 The argument put by counsel for Jadwan on this appeal can be stated in the form of a syllogism. The major premise is that, where an administrative decision-maker makes a jurisdictional error, the decision is a nullity and must be treated as never having existed for any purpose. The minor premise is that the decision of the Minister's delegate, cancelling the approval of Derwent Court, was subject to jurisdictional error. The conclusion is that the decision is to be treated as never having been made for any purpose. From that conclusion, it follows that Jadwan is to be treated as the proprietor of an approved nursing home on the eve of the coming into operation of the Aged Care Act. Section 7 of the Consequential Provisions Act therefore entitles Jadwan to be treated as having an allocation of places in existence under the Aged Care Act from the date of its operation.
29 The basis for the major premise is the judgment of the High Court of Australia in Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 (2002) 209 CLR 597. In that case, the Immigration Review Tribunal ('the IRT') had fixed a date for the hearing of a review of a decision to cancel a student visa and invited the visa-holder to attend the hearing. On the eve of the hearing, the visa-holder's agent sent a letter to the IRT, informing it that the visa-holder was ill and would be unable to attend the next day. The letter requested an adjournment. By an administrative oversight, the letter was not brought to the attention of the member of the IRT who was to conduct the hearing. In ignorance of the request for an adjournment, that member proceeded to make a decision adverse to the visa-holder. The visa-holder's agent drew the attention of the IRT member to the letter. The IRT arranged a new hearing date, heard evidence, and made a decision revoking the cancellation of the visa. The Minister for Immigration and Multicultural Affairs took proceedings to set aside the second decision, on the ground that the IRT had already made a decision in respect of the same application, had completed the performance of its function with respect to the application for review, and had no further power to conduct that review (ie the IRT was functus officio). All seven judges of the High Court heard the appeal. By a majority of six to one, the High Court held that the IRT had power to do what it had done.
30 To determine whether the High Court's judgment is authority for the proposition that jurisdictional error causes an administrative decision to be regarded as a nullity, it is necessary to examine carefully what was said in the different judgments. At [11], Gleeson CJ said:
'To say that a tribunal has considered an application, reached a conclusion, and informed affected parties of its decision, is to make a statement of fact. But the legal consequences of that fact depend upon the Act; and the answer to a question about those consequences may depend upon the purpose for which the question is asked. The answer to the question whether a legally effective decision has been made may depend upon the kind of legal effect that is under consideration, and upon further facts as to what was done, or not done, following the communication of the decision.'
31 At [12], his Honour quoted a passage from the judgment in Leung v Minister for Immigration & Multicultural Affairs (1997) 79 FCR 400 at 413, in which Finkelstein J made the point that a particular statute in pursuance of which a purported decision was taken may indicate that it is to have effect even though it is invalid, or that it will have effect until it is set aside. At [13], Gleeson CJ continued:
'I would accept that it is inconsistent with the scheme of the Act to conclude that the Tribunal, upon being persuaded that it has denied procedural fairness, at any time after it has made or purported to make a decision, and regardless of what a person affected by the decision has done or failed to do, may treat that decision as legally ineffective and consider afresh the matter that was originally before it. … It follows that, at the time the decision was made, it was inaccurate to say that it was completely without legal effect.'
32 At [14] - [15], his Honour expressed the view that the IRT, through an administrative error, failed to implement its own intention and failed to comply with the statutory requirement to give the respondent an opportunity to be heard. Its first decision did not amount to the conduct of a review. When it learned of its administrative error, the IRT recognised that it had not performed its function and proceeded to do so. This was in accordance with the requirements of the relevant statute.
33 In a joint judgment, Gaudron and Gummow JJ also saw the question as being whether the relevant legislation permitted the IRT to disregard its first decision. For this purpose, their Honours discussed the nature of administrative decisions at [45] - [48], the nature of decisions of the IRT at [49] - [50] and decisions involving jurisdictional error at [51] - [53]. At [51], their Honours said:
'A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged.' (Citations omitted)
34 At [53], their Honours said:
'As already pointed out, a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so.'
At [54] - [60], their Honours dealt with the question whether the relevant legislation should be construed as having the effect of giving the purported decision legal effect despite the jurisdictional error.
35 McHugh J at [63] expressed agreement with the reasons given by Gaudron and Gummow JJ, subject to two matters that are of no concern for present purposes. His Honour clearly favoured the view that the first decision of the IRT was of no force or effect because of jurisdictional error on the part of the IRT. Kirby J dissented, holding at [123] that the application to a decision of the IRT, formally made in accordance with the relevant legislation, of a theory of legal nullification in a case such as Bhardwaj was inadmissible.
36 At [141], Hayne J characterised the question as being when did the IRT perform its statutory task? At [144] - [145], his Honour said:
'More than 30 years ago, H W R Wade pointed out that in considering unlawful administrative action "there is no such thing as voidness in an absolute sense, for the whole question is, void against whom? It makes no sense to speak of an act being void unless there is some person to whom the law gives a remedy." That is why, as Wade went on to say,
"[i]t may be no more than a truism to point out ... that words such as
'void' and 'nullity' are legally meaningless except in the context of
an actual or assumed decision of a court ... But it is an important
truism for the present discussion, since a conclusion emerges: 'void'
and 'voidable' are in their present application indistinguishable in
meaning. The reason is simply that no disputed act of a public
authority can safely be treated as void in law unless the court can be
persuaded to condemn it."
Two important consequences follow. First, if the Minister, for whatever reason, had chosen not to contend that the October decision revoking the cancellation of the respondent's visa was ineffective, asking whether the September decision was "void", "voidable" or a "nullity" would serve no practical purpose. Similarly, asking whether the Tribunal had power to reconsider its September decision would be to ask an entirely theoretical question unless either the Minister or the visa holder not only sought to contend to the contrary but also resorted to the courts for relief, the grant of which depended upon the courts forming a conclusion about the contention.' (Citations omitted)
37 At [149], Hayne J said:
'The error committed by the Tribunal in reaching its September decision was a jurisdictional error. What it did was not authorised by the Act and did not constitute performance of its duty under the Act. As the availability of mandamus demonstrates, the September decision was not a decision of the review that the respondent had sought in relation to the decision of the Minister's delegate.'
38 At [151], his Honour discussed the presumption of validity attaching to administrative decisions, holding that it is not a presumption which must be understood as affording all administrative acts and decisions validity and binding effect until they are set aside. At [152], his Honour said:
'This is not to adopt what has sometimes been called a "theory of absolute nullity" or to argue from an a priori classification of what has been done as being "void", "voidable" or a "nullity". It is to recognise that, if a court would have set the decision aside, what was done by the Tribunal is not to be given the same legal significance as would be attached to a decision that was not liable to be set aside. In particular, it is to recognise that if the decision would be set aside for jurisdictional error, the statutory power given to the Tribunal has not been exercised.' (Citations omitted)
At [153], his Honour held that nothing in the relevant legislation required or permitted the conclusion that, despite the jurisdictional error, some relevant legal consequence should be attributed to the first decision of the IRT.
39 At [162], Callinan J posed the question whether the IRT's first decision 'was bad in a jurisdictional sense'. As his Honour held, this depended upon whether what occurred in connection with its making was something more than a breach of the rules of natural justice. At [163], his Honour held that the first decision was something more than a breach of the rules of natural justice. It was a failure to exercise a jurisdiction which the Tribunal was bound to exercise.
40 This analysis shows that the judgment in Bhardwaj rested clearly upon the proposition that the relevant legislation did not give the first decision of the IRT force and effect such as to require the IRT to treat that decision as precluding it from exercising its statutory function. All six judges who formed the majority did so on that basis. Only Gaudron and Gummow JJ, with the agreement of McHugh J, as part of their reasoning, relied on the proposition that jurisdictional error on the part of the decision-maker causes an administrative decision to be of no legal effect. Gleeson CJ, Hayne J and Callinan J do not appear to have embraced that proposition. Kirby J in his dissenting judgment clearly did not. Gaudron and Gummow JJ did not explain in detail the consequences of the proposition that a decision has no legal effect. They did not deal with issues such as the status of the first decision of the IRT if the IRT had not chosen to ignore it and make another. Indeed, their Honours did not discuss what might be the factual, as distinct from the legal, consequences attaching to an administrative decision if no challenge to its validity is ever made, or if any challenge to its validity is made out of time, or is made in proceedings to which someone bound or otherwise affected by the decision is not a party. Nor did their Honours say anything about the possible effect of an administrative decision after a court proceeding in which a party has made out a case of jurisdictional error on the part of the decision-maker, but the Court has declined to grant relief in relation to the decision by reason of discretionary considerations. The facts of Bhardwaj did not call for pronouncement upon these issues. The IRT had itself chosen to ignore its previous decision. The validity of that decision was in issue in the very proceeding with which the High Court was dealing.
41 In Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (2002) 195 ALR 24 at [76], the High Court laid down the correct approach to be taken to the application of the privative clause in s 474 of the Migration Act 1958 (Cth). It held that jurisdictional error affecting a decision is sufficient to take that decision outside the protection of the privative clause, because a decision affected by jurisdictional error cannot be regarded as 'a decision … made … under this Act'. The Court made it clear that it is necessary to read the relevant legislation as a whole, including having regard to the privative clause, in order to determine whether a particular error is to be regarded as a jurisdictional error for this purpose. At [76], in a joint judgment, Gaudron, McHugh, Gummow, Kirby and Hayne JJ said:
'This court has clearly held that an administrative decision which involves jurisdictional error is "regarded, in law, as no decision at all".'
In the accompanying footnote, their Honours cited Bhardwaj, referring to the passage at [51] in the joint judgment of Gaudron and Gummow JJ, to McHugh J's agreement at [63], and to the judgment of Hayne J at [152]. As was the case in Bhardwaj itself, their Honours did not deal in S157 with the possible status of an administrative decision affected by jurisdictional error in the absence of a challenge to its validity, or after a court has found such error to have existed, but has declined to treat the decision as a nullity.
42 In our view, Bhardwaj cannot be taken to be authority for a universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever. All that it shows is that the legal and factual consequences of the decision, if any, will depend upon the particular statute. As McHugh, Gummow, Kirby and Hayne JJ said in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388 - 389:
'An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.'
43 In this case, it is necessary to look at the scheme of the National Health Act, to see if the legislative intention can be discerned that the decision of the Minister's delegate revoking the approval of Derwent Court was to be treated as having any, and if so what, effect, even though it was not made in accordance with the requirements of the National Health Act. Before embarking on such an examination, however, it is worth examining the minor premise of Jadwan's argument, that the decision of the Minister's delegate was subject to jurisdictional error.
44 The earlier Full Court did not hold in terms that the decision to revoke Derwent Court's approval as a nursing home was a nullity. Given that it was exercising jurisdiction under the ADJR Act, it was unnecessary for that Full Court to determine whether the error was jurisdictional or not. The grounds specified in s 5 of the ADJR Act, upon which the Court may make orders in respect of administrative decisions, are not expressed in terms of jurisdictional error. At least in some cases, those grounds include errors that are not necessarily described as jurisdictional errors. An example is the ground in s 5(1)(f), that the decision involved an error of law. See Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [27] and [57] per McHugh and Gummow JJ. It might be thought that, in enacting s 16(1)(a) of the ADJR Act, which permits the Court to quash or set aside a decision with effect from the date of the order or from such earlier or later date as the Court specifies, parliament was acting on the assumption that even a decision tainted by jurisdictional error could have some force and effect, and leaving it to the Court to decide what force and effect should be accorded to such a decision. It must also be clear that, to the extent to which s 5 of the ADJR Act confers jurisdiction in respect of a 'decision', it was intended that there should be jurisdiction, whether or not the decision concerned was subject to jurisdictional error. See Australian Broadcasting Commission Staff Association v Bonner (1984) 2 FCR 561 at 566 per Morling J and Seventh Mingcourt Pty Ltd v Lawrence (1996) 64 FCR 367 at 375 per Branson J. Similar conclusions have been reached in cases concerned with merits review of a 'decision' for the purposes of other legislation in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 at 313 - 315 per Bowen CJ and 331 - 337 per Smithers J, Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213 at 218 - 219 per von Doussa J (Spender and French JJ agreeing) and, in relation to an appeal to the Court on a question of law from a 'decision' of the Administrative Appeals Tribunal, in Clements v Independent Advisory Committee [2003] FCAFC 143 at [36] - [40] per Gray ACJ and North J (Gyles J agreeing).
45 The earlier Full Court had some difficulty in characterising the error that it found affected the decision to revoke approval. In the end, it chose to characterise the error as one of taking into account an irrelevant consideration, by treating the findings of the panel as having been made by a properly constituted panel. As the reasons of the Court show, it would have been perfectly proper for the Minister's delegate to take into account the views of the panel as the collective views of three people. It was only the decision-maker's ignorance as to the qualifications of a panel member that might have resulted in more weight being given to the views of the panel than would otherwise have been the case. It is not obvious that this is a finding of jurisdictional error. There is no suggestion that the Minister's delegate failed to understand the task to be performed. There is every reason to suppose that an error in giving too much weight to evidence, because of ignorance as to the true status of the persons providing that evidence, would have been regarded as something less than jurisdictional error.
46 There is some support for this view in the orders made by the Full Court. The Court deliberately set aside that part of the order of Heerey J which declared void the decision to revoke approval of Derwent Court. That order tended to suggest that there had been jurisdictional error, although his Honour did not say so in terms. Rather, he characterised the error as a failure to observe a procedure required by law and found a statutory intention that the object of the statute could not be achieved if the procedure were not followed. The Full Court substituted for this order an order setting aside the decision. The learned primary judge was correct to view this as a choice by the Full Court to make an order that would operate from the date of the Full Court's judgment, and not from the date of the decision of the Minister's delegate. His Honour was correct to follow Wattmaster in which, at 256, Sheppard and Wilcox JJ, with whom Fox J agreed, said:
'Section 16(1) of the Administrative Decisions (Judicial Review) Act gives to the Court a wide discretion as to the orders appropriate to be made. The words "with effect from the date of the order or from such earlier or later date as the Court specifies", in par (a), are, in our opinion, intended to do no more than to indicate that the Court has a choice from all the available possibilities: the date of the order, an earlier date or a later date. It is true that the effect of the language used is that it is unnecessary for the Court to specify a date, if it is intended that the decision will be quashed or set aside as from the date of the order, whereas specification is necessary in other cases; but specification of a particular date is, in the latter situation, in any event essential. By contrast, in the former situation, express specification is unnecessary; the relevant date appears on the face of the order itself. Neither, we think, is anything to be derived from the circumstance that "date of the order" is first mentioned; the probable explanation of that circumstance is ease of drafting.'
47 The Full Court's order is thus to be taken as an order setting aside the decision from the date of the Full Court's order. It is difficult to conceive that the Full Court would have made the substitution, without exercising the power under s 16(1) of the ADJR Act to set aside the decision from its inception, if it had not intended to change the effect of the order. Unfortunately, the Full Court did not give clear reasons for the orders it made. Its only reason expressed was that it had regard to the ground on which Jadwan had succeeded in resisting, in substance, the Minister's appeal. The learned primary judge expressed the view that it seemed likely that the Full Court regarded it as just that the revocation decision remain in effect until the date of the appeal judgment because Jadwan had failed to raise before Heerey J the point on which it succeeded in the Full Court. It is at least as likely an explanation that the Full Court had regard to the powers given to the Court in respect of a decision by s 16(1) of the ADJR Act and chose to exercise the power to set aside the decision, pursuant to s 16(1)(a), on the basis that it was not satisfied that there existed jurisdictional error, which might have justified a declaration pursuant to s 16(1)(c) that the decision was void. If the Full Court had regarded the Minister's delegate as having made a jurisdictional error, it is hard to see how the point of time at which argument came to be directed to that issue could have had any impact upon the form of order that was appropriate, upon the issue being made out.
48 The judgment of the earlier Full Court cannot be discussed without making reference to the question whether, and to what extent, it is open to Jadwan to canvass these issues in the present proceeding. Whatever may have been the reasons why counsel who then appeared for Jadwan did not make submissions to the earlier Full Court as to the date from which any order it made should operate in relation to the decision, it cannot be denied that it was open to Jadwan to make such submissions. The unsuccessful attempt, during the hearing of this appeal, to reopen the orders of the Full Court only serves to underline the fact that the issue could have been raised in the earlier proceeding. In no sense can this Court sit on appeal from the judgment of the earlier Full Court, for the purpose of altering the orders the Full Court made. There is a danger that, if this Court were to act on the basis that the decision of the Minister's delegate was affected by jurisdictional error, it would be reconsidering what the earlier Full Court did. If the issue of jurisdictional error had been determined in favour of Jadwan by an explicit finding of the earlier Full Court, there would be nothing to prevent this Court acting on that finding; indeed, it would be bound to do so, by the application of issue estoppel. In the absence of such an explicit determination, any attempt by Jadwan now to obtain such a finding must fall foul of the doctrine of res judicata, on the basis that the issue could have been raised in the earlier proceeding. Even if that were not so, the operation of what is known as Anshun estoppel, derived from the High Court's judgment in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589, would bar Jadwan from raising the issue here. In effect, Jadwan now seeks to assert as correct the view taken by Heerey J, that the decision of the Minister's delegate should be regarded as void, when that view was specifically rejected by the earlier Full Court. This Court could not accept Jadwan's argument without giving a judgment that would contradict the judgment of the earlier Full Court.
49 If it were open to this Court to look afresh at the effect of the decision of the Minister's delegate, the proper conclusion is that the decision could not be ignored for all purposes. Nothing in the scheme of the National Health Act at the time required that that be done. It must be remembered that the National Health Act contained no power under which patients could be removed from an approved nursing home, in the event that approval were revoked. There was no statutory bar to Jadwan continuing to provide the care it had provided to the people to whom it had provided it, even after the decision was made. The effect of the decision was only that Commonwealth benefit was no longer payable in respect of persons for whom care was provided. Of course, a decision revoking approval of a nursing home inevitably had the effect of stopping the cash flow of the proprietor. It was probably inevitable that this would require that arrangements be made for the provision of care for the patients by the proprietor of another approved nursing home. Nothing in the National Health Act required that this be done, however. It would have been open to Jadwan to continue to care for the patients in Derwent Court, whilst taking whatever steps were appropriate to have the decision set aside from the date on which it was made. If it had succeeded in doing so, it would have had an entitlement to receive arrears of Commonwealth benefit in respect of each patient for whom it had provided care in Derwent Court in the meantime. Given that scheme, there was nothing about the National Health Act that suggested a legislative intention that a decision revoking approval pursuant to s 44(1) should have no effect if the decision-maker wrongly took into account evidence provided by a panel that had no authority under the legislation.
50 For all of these reasons, the minor premise of Jadwan's syllogism cannot be supported. As both premises are not justified, the conclusion, that the decision of the Minister's delegate to revoke the approval of Derwent Court as a nursing home under the National Health Act was a nullity, must be rejected. The consequences said to flow from that conclusion cannot be sustained for that reason. In the event, because argument was directed to the issue of the operation of the Consequential Provisions Act and the Aged Care Act, it is appropriate to state briefly the Court's conclusions in relation to those matters.