Adag and Australian Maritime Safety Authority

[2000] AATA 211

DECISION AND REASONS FOR DECISION [2000] AATA 211

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2000/27

GENERAL ADMINISTRATIVE  DIVISION       )          
           Re      SERGIO PANSAY ADAG            
  Applicant
           And    AUSTRALIAN MARITIME SAFETY AUTHORITY      
  Respondent

DECISION

Tribunal       Deputy President A M Blow OAM QC.,  

Date20 March 2000

PlaceHobart

Decision      The application for review and the application for extension of time are dismissed.              
  ..............................................
  Deputy President
CATCHWORDS

Jurisdiction – Navigation Act – certificate of competency as engineer/watchkeeper – oral examination.
Navigation Act 1912 – s.425(1AA)
Marine Orders, Part 3, Order 3.1

REASONS FOR DECISION

20 March 2000        Deputy President A M Blow OAM QC.,              

1. The applicant is a mariner who would like to be awarded a certificate of competency as an engineer/watchkeeper. The requirements for the award of such certificates are laid down by clause 1.3 of Appendix 3 to Part 3 of the Marine Orders. The Marine Orders are subordinate legislation made pursuant to s.425(1AA) of the Navigation Act 1912.   They are administered by the respondent.

2. It appears that a Mrs. Hunt from the Department of Education wrote to the respondent on behalf of the applicant.   In reply, an officer of the applicant wrote to her on 6 January 2000 saying that he or she had "determined on the basis of the information sent Mr. Adag is not eligible for entry into the engineer/watchkeeper oral examination."   That officer went on to give reasons for that decision, and to tell Mrs. Hunt that an application could be made to this Tribunal for the review of that decision.

3. On 24 February 2000 the applicant applied to this Tribunal for the review of that decision. His application was made outside the 28-day time limit prescribed for such applications by s.29(2) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act").   He lodged with his application an application for an extension of time under s.29(7) of that Act.

4. The respondent contends that the decision notified by the letter dated 6 January 2000 is not a decision that is reviewable by the Tribunal, although the opposite was stated in that letter.   I conducted a directions hearing to determine whether the Tribunal has jurisdiction in this matter and, if so, whether time should be extended.   I had to reserve my decision because I did not have a copy of the Marine Orders.

5. As I have said, the qualifications for a certificate of competency as an engineer/watchkeeper are set out in clause 1.3 of Appendix to Part 3 of the Marine Orders.   There are six essential requirements which are listed in paragraphs (a) to (f) of clause 1.3.   The provisions relevant to an oral examination read as follows:

   "To be eligible for a certificate of competency as Engineer/Watchkeeper, a person must;
    …

   (f)have passed an oral examination in appropriate operational knowledge conducted by an examiner."

1. There is no legislative provision in the Marine Orders, the Navigation Act 1912, or apparently any other piece of legislation, conferring on any person or authority any power to allow, or refuse to allow, a person to undertake such an oral examination.

2. Order 3.1 of Part 3 of the Marine Orders provides for applications to be made to this Tribunal for the review of various classes of decisions made pursuant to that Part.   It contains a long list of the sorts of decisions that can be the subject of applications to this Tribunal.   It does not include any reference to any sort of decision made in relation to the awarding of certificates of competency as engineers/watchkeepers under clause 1.3 of Appendix 3, or any related decisions.  Similarly there are various provisions in the Navigation Act 1912 under which applications can be made to this Tribunal for the review of decisions made under that Act, but none of them relate to the awarding of certificates of competency to engineers/watchkeepers.

3. I am therefore satisfied that the Tribunal has no jurisdiction in this matter.  The decision not to let the applicant undertake the oral examination is a decision that this Tribunal cannot review.   The information to the opposite effect in the letter of 6 January 2000 was wrong.   The writer of that letter made a mistake.    That mistake should not have been made.

4. I therefore have no choice but to dismiss the application pursuant to s.42B(1)(a) of the AAT Act. I must therefore also dismiss the application for an extension of time. There is nothing I can do to assist the applicant.

   I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President A M Blow OAM QC.,

   Signed:         .....................................................................................
     Personal Assistant

   Date/s of Hearing  16 March 2000
   Date of Decision  20 March 2000
   Counsel for the Applicant  Applicant appeared in person.
   Representatives for the Respondent      Mr R J Evans and Mr G Hollings