Injunctions or court orders made without authority compared to administrative decisions affected by jurisdictional error

In DPP v Ty [2009] VSCA 226; 24 VR 705, the Victorian Court of Appeal unanimously restated the position that a Court order must be obeyed even if that order is invalid.  The Court said at [27]:

an injunction must be obeyed ‘to the letter’ unless and until it is dissolved or set aside on appeal.[21]  Breach of an injunction will be a contempt of court notwithstanding that the injunctive order is later quashed on appeal.  The status of court orders – at least those of superior courts – is quite different in this respect from that of administrative decisions.[22]  Even a court order which lacks constitutional (and therefore legislative) authority only ceases to have valid operation from the date of quashing.[23]

The proposition that an administrative decision affected by jurisdictional error is ‘no decision at all’ is famously articulated by Gaudron and Gummow JJ in Minister for Immigration v Bhardwaj (2002) 209 CLR 597:

There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside.  A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all[33].  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.  A fortiori in a case in which the decision in question exceeds constitutional power or infringes a constitutional prohibition.

The proposition that Court orders stand unless and until set aside has implications for contempt.  For example, it would seem that neither the Commonwealth or Minister for Immigration can argue that they are entitled to move a person from one place of detention to another (for example, from Perth Immigration Detention Centre to Christmas Island) on the basis that a decision to make such a move is a privative clause decision under the Migration Act.  If an injunction exists to prohibit the move, that injunction must be obeyed even though the Minister thinks that the Court has no power to make such an injunction.  The injunction must first be set aside.  It follows that disobeyance of the injunction may be a contempt of Court.