Borg and Australia Pacific Airports (Melb) Pty Ltd

[2011] AATA 228

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 228

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No 2010/5590

GENERAL ADMINISTRATIVE DIVISION		)
Re		Rita Borg

Applicant

And Australia Pacific Airports (Melb) P/L

Respondent

DECISION

Tribunal J W Constance, Deputy President

Date6 April 2011

PlaceMelbourne

Decision The application by Rita Borg made 5 January 2011, for an extension of the time in which an application for review of a decision of Australia Pacific Airports (Melbourne) Pty Ltd may be made, is dismissed.

.......…[signed]…..........

Deputy President

INFRASTRUCTURE AND TRANSPORT – jurisdiction – power of issuing body to suspend an ASIC – Aviation Transport Security Regulations 2005 regs 6.06, 6.42A(1), 8.02(3), 8.03, no jurisdiction for AAT to review a decision to suspend an ASIC

Administrative Appeals Tribunal Act 1975 (Cth) s 25(1)

Aviation Transport Security Act 2004 (Cth)

Aviation Transport Security Regulations 2005 (Cth) regs 6.01, 6.06, 6.09, 6.10, 6.42A, 6.42A(1), 6.43, 6.43(2), 6.43(4), 8.02(3)(e), 8.03

REASONS FOR DECISION

6 April 2011   J W Constance, Deputy President

INTRODUCTION

1.Prior to 18 October 2010 Mrs Borg was employed by a company providing aircraft cleaning services at Melbourne Airport Tullamarine.  To enable her to carry out her duties the respondent, Australia Pacific Airports (Melbourne) Pty Ltd (“APAM”), issued Mrs Borg with an Aviation Security Identification Card, known as an ASIC.

2.On 13 September 2010 APAM decided to suspend Mrs Borg's ASIC.

3.On 23 December 2010 Mrs Borg lodged with the Tribunal an application for review of this decision.  As this application was lodged more than 28 days after Mrs Borg was advised of the decision she has made an application for an extension of time in which to make the application for review.

4.For the reasons which follow I have decided that the application for an extension of time will be dismissed.

FACTS

5.I am satisfied of the following facts on the basis of the documents tendered in evidence.  These facts are not in dispute.

5.1      Prior to 18 October 2010 Mrs Borg was employed by Broadlex Air Services Pty Ltd as a cleaner at Melbourne Airport.

5.2      To enable Mrs Borg to carry out her duties APAM issued Mrs Borg an ASIC with an expiry date of 30 September 2010.[1]

5.3      APAM is an “issuing body” for the purposes of the Regulations.

5.4      As a result of an alleged breach of the Aviation Transport Security Regulations 2005 (Cth) by Mrs Borg, APAM decided to suspend Mrs Borg's ASIC.

5.5      Mrs Borg was advised of this decision by letter on 13 September 2010.  The suspension was for 6 months commencing on 15 September 2010 and ending on 15 March 2011.[2] 

5.6      On 23 December 2010 Mrs Borg lodged with the Tribunal an application to review the decision to suspend her ASIC.

5.7      As the application to review was lodged outside the period required by the Administrative Appeals Tribunal Act 1975 (Cth) Mrs Borg applied for an extension of time to lodge the application.  This application was made on 5 January 2011.

5.8      Mr Parker, an official of the Transport Workers Union, gave evidence that on 22 October 2010 he was requested by Mrs Borg to represent her in relation to this matter and that prior to 15 November 2010 he forwarded to the Tribunal an Application for Review of Decision on behalf of Mrs Borg.  The Tribunal has no record of receiving this application.

[1] Exhibit A7.

[2] Exhibit A1.

LEGISLATION        

6.The issue, expiry, suspension and cancellation of ASICs is regulated by Division 6.5 of the Aviation Transport Security Regulations 2005 (Cth) made under the Aviation Transport Security Act 2004 (Cth).

7.Subdivision 6.5.4 regulation 6.42A(1) provides:

(1) The secretary may direct an issuing body, in writing, to suspend an ASIC if the holder of the ASIC:

(a) is convicted of an aviation-security-relevant offence; and

(b) has not yet been sentenced for the offence; and

(c) constitutes a threat to aviation security.

8.Regulation 6.43(2) sets out the circumstances in which an issuing body must cancel an ASIC.

9.Regulation 6.43(4) sets out the circumstances in which an issuing body may cancel an ASIC.

10.It is to be noted that the Regulations do not provide for an issuing body to suspend an ASIC, other than at the direction of the Secretary under regulation 6.42A(1), set out in paragraph 7 of these reasons.

11.Part 8 of the Regulations is headed “Review of Decisions”.

12.Under the heading “Decisions in relation to issue, suspension and cancellation of ASICs”   regulation 8.02(3)(e) provides in part:

Application may be made under the AAT Act to the Tribunal for review of a decision of the Secretary:

(e) to direct the suspension of an ASIC .

13.Regulation 8.03 provides:

Application may be made under the AAT Act to the Tribunal for review of a decision of an issuing body:

(a) to refuse to issue an ASIC to somebody; or

(b) to issue an ASIC subject to a condition; or

(c) to cancel an ASIC.

THE PARTIES’ ARGUMENTS

14.It was argued on behalf of APAM that Mrs Borg should not be granted an extension of time in which to apply for a review as the Tribunal does not have jurisdiction to review the decision to suspend the ASIC in any event.  APAM referred to the limited powers of review set out in regulation 8.03.

15.On behalf of Mrs Borg it was put that it was illogical and unfair that decisions to refuse to issue an ASIC, to issue an ASIC subject to conditions and to cancel an ASIC are reviewable whereas a decision to suspend an ASIC is not.  It was further argued that as the period of suspension went beyond the expiry date of Mrs Borg's ASIC, the decision to suspend was a decision to cancel and therefore was reviewable under regulation 8.03.

REASONING

16.The only powers of review available to this Tribunal are those given to it by statute.  As the Tribunal itself is a creature of statute it does not have any source of power other than the Administrative Appeals Tribunal Act 1975 (Cth). Section 25(1) provides:

(1) An enactment may provide that applications may be made to the

Tribunal:

(a) for review of decisions made in the exercise of powers

conferred by that enactment; or

(b) for the review of decisions made in the exercise of powers

conferred, or that may be conferred, by another enactment

having effect under that enactment.

17.The decisions under the Regulations which can be reviewed by the Tribunal are set out in regulation 8.03 and clearly do not include a decision to suspend an ASIC. 

18.I do not accept Mrs Borg's argument that “cancel” in sub-paragraph (c) should be interpreted to mean “suspend”. In ordinary usage “cancel” denotes the permanent ending of the use of a document; the ordinary usage of “suspend” denotes an interruption of the use of a document.

19.The Oxford English Dictionary includes the following definitions:

cancel: to annul, render void or invalidate by so marking.

suspend: to put a stop to, usually for a time, esp. to bring to a (temporary) stop; to intermit the use or exercise of, put in abeyance.

20.The Regulations distinguish also between the power to cancel an ASIC (which may be exercised by an issuing body under reg 6.43) and the power to suspend an ASIC (at the direction of the Secretary under reg 6.42A).  The two words have distinct meanings and denote different processes.

21.In my view the absence of a provision for the review of a decision of an issuing body to suspend an ASIC is explicable on the basis that it is not the intention of the Regulations that an issuing body have such a power of its own motion.  The Regulations give this power to an issuing body only at the direction of the Secretary and it is the Secretary’s decision which is subject to review.

22.It was argued on behalf of APAM that the power to suspend Mrs Borg’s ASIC arose from the ASIC Program for Australia Pacific Airports (Melbourne) Pty. Ltd., part of which is exhibit A8.  This document does purport to authorise the suspension of an ASIC in certain circumstances.

23.ASIC program is defined by regulation 6.01 to mean “a program of the kind described in regulation 6.06, and includes a program of that kind as varied under regulation 6.09 or 6.10.”

24.Regulation 6.06 provides:

What an ASIC program is

An ASIC program sets out procedures to be followed for the following purposes:

(a) the issue and production of ASICs and VICs;

(b) the issue and production of temporary ASICs and VICs that are designed to be used on a single occasion and then destroyed, if the issuing body proposes to issue such ASICs or VICs;

(c) the design, distribution and storage of sample ASICs or VICs for training purposes, if the issuing body proposes to issue such ASICs or VICs;

(d) the safekeeping, secure transport and disposal of ASICs and VICs and associated equipment;

(e) the recovery and secure destruction of issued ASICs or VICs that are no longer required;

(f) the security of records in relation to applicants for ASICs and VICs;

(g) ensuring that persons properly display ASICs or VICs;

(h) lost ASICs and VICs;

(i) ensuring that ASICs and VICs are returned to issuing bodies when they are no longer required.

25.There is nothing in regulation 6.06 relating to the suspension of ASICs.  This raises serious doubt as to the validity of the provisions of the ASIC Program upon which APAM seeks to rely.  However this does not assist Mrs Borg in this application.  In certain circumstances the Tribunal has jurisdiction to review an invalid decision (e.g. a decision made by a person not empowered to make the decision), but here the Tribunal has not been given the power to review a decision to suspend, be it valid or invalid.

26.For the reasons stated I am satisfied that should the time for Mrs Borg to make her application to review be extended, the Tribunal would not have jurisdiction to review the decision she seeks to have reviewed and her application would not succeed.  For this reason her application for an extension of time will be dismissed.

DECISION

27.The application by Rita Borg made 5 January 2011, for an extension of the time in which an application for review of a decision of Australian Pacific Airports (Melbourne) Pty Ltd may be made, is dismissed.

I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of
J W Constance, Deputy President

Signed:         ......[signed]……........
  K. Peterson, Associate

Date of Hearing   11 February 2011
Date of Decision   6 April 2011
For the Applicant   Mr Bill Baarini  
Counsel for the Respondent     Mr Tom Hurley
Solicitor for the Respondent      Ms Zoe Bateman, Corrs Chambers Westgarth