Wikiversity Law Reports/Adams v Tax Agents' Board

This is a Wikiversity Law Report.

Administrative Appeals Tribunal

TL;DR: A person or body, other than a court, cannot determine the constitutional validity of legislation purporting to confer authority on that person or body. (In this case, the Tax Agents' Board could not decide that legislation requiring it to strike off a tax agent was invalid.)

Held

• Unlike a court, an administrative decision-maker cannot decide that they have jurisdiction; it follows that they are incapable of determining that legislation is valid.
• An administrative decision can (and must) observe the limits on its power and in that sense must determine the effect of legislation granting it power, including its constitutional validity.
• An administrative decision-maker is not bound to follow an invalid statute. An invalid statute cannot compel a person to commit unlawful acts.
  • This differs from the situation in the United States, where legislation is valid until declared constitutionally invalid by a court.
• However, an administrative decision-maker's jurisdiction can never be said to extend to determining the constitutional validity of legislation. An administrative decision-maker's power to consider the validity of legislation is only incidental to that decision-maker's own acts.
• Therefore, an administrative decision-maker performing a review of another administrative decision-maker's decision cannot consider, as a ground of review, the constitutional invalidity of the legislation under which the original decision-maker purported to act.
• Applying this principle to the present facts, the AAT had no power to consider whether the legislation under which the Board purported to act was invalid.
• Furthermore, the AAT's only powers are to vary the decision, substitute it, or remit the matter to the Board for reconsideration; none of these are possible if the legislation is invalid. Therefore it cannot be sensibly said that the legislation gives the AAT jurisdiction to consider the invalidity of the legislation the Board purported to act under.

Other publishers' references

• (1976) 1 ALD 251