Australian Pesticides and Veterinary Medicines Authority v Administrative Appeals Tribunal

The Australian Pesticides and Veterinary Medicines Authority (Apvma) sought to review decisions of the Administrative Appeals Tribunal (Aat) dated 29 May 2008, which purported to stay the operation and implementation of the Apvma's removal of certain active constituents from the Record of Approved Active Constituents and certain chemical products from the Register of Chemical Products. The dispute arose from the approval and registration of nine active constituents and 52 chemical products in the name of Imtrade under the Agricultural and Veterinary Chemicals Code (the Code), scheduled to the Agricultural and Veterinary Chemicals Code Act 1994 (Cth). Evergreen Nurture Agrochemicals Ltd, a fictitious name provided by Imtrade to the Authority, was recorded as the manufacturer of these constituents and products, with an incorrect address provided to prevent competitors from accessing this information. The central issue was whether this deliberate misrepresentation constituted fraud on the Authority, thereby invalidating the approvals and registrations.

The primary legal issue before the court was whether the Authority could ignore the approvals and registrations procured through Imtrade's fraud, as it had done by deleting them from the Record and the Register. The Authority argued that, subject to limited exceptions, a person would not be permitted to keep an advantage obtained by fraud, and that an administrative decision procured by fraud may be disregarded as an invalid decision and of no effect at law. The court considered the Authority's submission that the decision in Leung v Minister for Immigration & Multicultural & Indigenous Affairs (1997) 79 FCR 400 supported their actions. In Leung, the Minister for Immigration sought to revoke the grant of a certificate of Australian citizenship where the applicants had misled his delegate about their factual circumstances. The Full Court found that the Minister could revoke the grant of citizenship in the absence of an express statutory power to do so, as the applicants had obtained the grant by fraud.

The court found that the Authority had the power to disregard the approvals and registrations procured by fraud, as it was not permitted to keep an advantage obtained by fraud. The court further found that the Authority's actions were consistent with the principles established in Leung, and that the Authority had not purported to cancel the approvals and registrations under the provisions of the Code. The Authority was granted declarations to the effect that the approvals and registrations were affected, procured or induced by the fraud of Imtrade in providing the fictitious name and address of Evergreen as manufacturer in each case. The Authority was also granted declarations that the approval of each active constituent by the entry in the Record of the relevant particulars was not an approval and could be ignored, as could the registrations and the variations to the relevant particulars of registrations. The Authority was further granted declarations that the deletions from the Record and the Register were valid and of no effect at law.