McWilliam and Civil Aviation Safety Authority
[2005] AATA 1148
•11 November 2005
CATCHWORDS – JURISDICTION – AVIATION – whether estopped by Tribunal’s earlier decision deciding same substantive issues between the parties but regarding different decisions – whether earlier decision had sufficient degree of finality – relevance of possible jurisdictional error – whether Tribunal has power to review decision invalidly made – whether reviewable decisions – whether decisions a cancellation, suspension or variation of a certificate, permission, permit or licence – jurisdiction in relation to one decision.
Acts Interpretation Act 1901 s. 33
Administrative Appeals Tribunal Act 1975 ss. 3, 25, 27, 29, 33 to 38, 41, 42B, 43 and 44
Administrative Decisions (Judicial Review) Act 1977 ss. 13 and 16
Civil Aviation Act 1988 ss. 3, 9, 12, 13, 18, 20AA, 20AB, 23, 26, 27A, 27AE, 28BC, 31, 31A and 98
Civil Aviation Regulations 1988 rr. 33, 33B, 33C, 33D, 92, 152, 297A, 298, 301, 302 and 303
Commonwealth of Australia Constitution Act s. 75
Judiciary Act 1903 s. 39B
Migration Act 1958 s. 360
Social Security Act 1991 s. 8
Workers’ Compensation and Rehabilitation Act 1981 (WA)
Abebe v Commonwealth (1999) 197 CLR 510; 162 ALR 1
Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353
Blair v Curran (1939) 62 CLR 464
Bogaards v McMahon (1988) 8 AAR 556
Cachia v Isaacs (1985) 3 NSWLR 366
Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338
Fletcher v Commissioner of Taxation (1988) 19 FCR 442
Hanna v Australian Postal Commission (1990) 12 AAR 511
Jackson v Goldsmith (1950) 81 CLR 446
Kowalski v Trustee, Mitsubishi Motors Australia Ltd Staff Superannuation Pty Ltd [2003] FCAFC 18
Kuligowski v Metrobus [2004] HCA 34; (2004) 208 ALR 1
McWilliam and Skydive City Pty Ltd v Civil Aviation Safety Authority [2004] FCA 1701; (2004) 214 ALR 251
Miller v University of New South Wales (2003) 132 FCR 147
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 (2002) 209 CLR 597
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; 180 ALR 1
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) (1978) 1 ALD 167
Re Control Investment Pty Ltd and Australian Broadcasting Commission (No. 2) (1981) 3 ALD 88
Re Custodial Limited and Australian Securities and Investments Commission [2005] AATA 775
Re Donald and Australian Securities and Investments Commission [2001] AATA 622; (2001) 64 ALD 717
Re Jebb and Repatriation Commission [2005] AATA 470
Re Jonsson and Marine Council (No. 2) (1990) 12 AAR 323
Re McWilliam and Civil Aviation Safety Authority [2004] AATA 908; (2004) 82 ALD 648
Re Proctor and Commissioner of Taxation [2005] AATA 389
Re Upton and the Department of Transport (1977) 1 ALD 150; 15 ALR 675
Re Strauss and Secretary, Department of Family and Community Services [2005] AATA 608
Secretary, Department of Social Security v Riley (1987) 17 FCR 99
Stevenson v Commissioner of Taxation (1991) 29 FCR 282
The Ombudsman v Laughton [2005] NSWCA 339
Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242
DECISION AND REASONS FOR DECISION [2005] AATA 1148
ADMINISTRATIVE APPEALS TRIBUNAL )
) V2005/282
GENERAL ADMINISTRATIVE DIVISION )
Re LUKE McWILLIAM
Applicant
AndCIVIL AVIATION SAFETY AUTHORITY
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 11 November 2005
Place: Melbourne
Decision: The Tribunal has decided that:
1.the decision to revoke Instrument No. CASA 83/04 and to issue Instrument No CASA 130/05 is not a reviewable decision within the meaning of s. 31 of the Civil Aviation Act 1988; and
2.the decision to revoke Instrument No. CASA 64/04 and to issue Instrument No. CASA 131/05 is a reviewable decision within the meaning of s. 31 of the Civil Aviation Act 1988; and
adjourn further consideration to a date to be fixed.
S A FORGIE
Deputy President
REASONS FOR DECISION
Mr Luke McWilliam is a shareholder of Skydive City Pty Ltd (“Skydive”) as well as its sole Director and Chief Executive Officer. Skydive operates a parachute business at Barwon Heads Aerodrome in Victoria (“Barwon Heads”) teaching people to parachute and providing aircraft and other facilities and services to enable experienced persons to parachute. Mr McWilliam owns part of the land comprising Barwon Heads and Ms Begg owns the remainder. The Civil Aviation and Safety Authority (“CASA”) issued Instruments CASA 130/05 and CASA 131/05 on 6 April 2005. In general terms, the first prohibited the pilot of an aircraft engaged in a parachute operation from permitting a person to exit the aircraft to conduct a parachute descent within 4.8 kilometres of Barwon Heads. The second applies to a person who is a member of the Australian Parachute Federation Inc (“APFI”) or the Australian Skydiving Association (“ASA”) and authorised to make a parachute descent by an authorisation in force under r. 152 of the Civil Aviation Regulations 1988 (“Regulations”). It stated that a person must not make a parachute descent within 4.8 kilometres of Barwon Heads. CASA submitted that I had already decided the issue when I considered two decisions in substantively the same terms and so was estopped from deciding the issue again. I decided that I am not estopped. Mr McWilliam submitted that the Tribunal has jurisdiction to review CASA’s decision but CASA submitted that it does not. I have decided that I do not have jurisdiction to review the first decision but I do have jurisdiction to review the second.
LEGISLATIVE FRAMEWORK
Administrative Appeals Tribunal Act: the Tribunal’s jurisdiction
Resolution of the issue depends upon the extent of the Tribunal’s jurisdiction. Section 25 of the Administrative Appeals Tribunal Act 1975 (“AAT Act”) is fundamental to any consideration of the Tribunal’s jurisdiction to review a decision.
Section 25(1) provides that:
“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.”
Section 25(4) provides the necessary corollary to this sub-section when it provides that the “... Tribunal has power to review any decision in respect of which application is made to it under any enactment.” Other sections in Part IV of the AAT Act provide for such matters as those who may apply to the Tribunal,[1] the time and manner within which they may do so[2] and the procedure of the Tribunal and its powers associated with procedural aspects.[3]
[1] AAT Act, s. 27
[2] AAT Act, s. 29
[3] for example, AAT Act, ss. 33 to 38
The Civil Aviation Act 1988 (“the Act”) is an enactment of the type referred to in s. 25 of the AAT Act. Section 31(2) of that Act provides that an application may be made to the Tribunal for review of a “reviewable decision”. The expression “reviewable decision” is defined in s. 31(1) to mean, in so far as it is relevant in this case:
“(a) a refusal to grant or issue, or a cancellation, suspension or variation of, a certificate, permission, permit or licence granted or issued under this Act or the regulations; or
(b)the imposition or variation of a condition, or the cancellation, suspension or variation of an authorisation, contained in such a certificate, permission, permit or licence; …”
Regulation 297A(2) of the Regulations provides that an application may be made to the Tribunal for review of a “reviewable decision”. The expression “reviewable decision” is defined in r. 297A(1) to mean any one of decisions or refusals described in its 39 paragraphs. None of the decisions or refusals in those paragraphs refers to rr. 92(2) or 152 under which Instruments 130/05 and 131/05 were respectively made. Consequently, the Tribunal does not have any jurisdiction in this case as a result of the application of r. 297A(1).
The Civil Aviation Act: an overview
Part II of the Act is concerned with the functions and powers of CASA and the context in which it must perform or exercise them. Section 9 of the Act sets out CASA’s functions. Among its functions are those:
“… of conducting the safety regulation of the following, in accordance with this Act and the regulations:
(a)civil air operations in Australian territory;
(b)the operation of Australian aircraft outside Australian territory;
by means that include the following:
(c)developing and promulgating appropriate, clear and concise aviation safety standards;
(d)developing effective enforcement strategies to secure compliance with aviation safety standards;
(e)issuing certificates, licences, registration and permits;
(f)…
(g)…
(h)…”[4]
[4] Act, s. 9(1)
The expression “aviation safety standards” is defined in s. 3(1) to mean:
“… standards relating to the following:
(a)the flight crews engaged in operations of aircraft;
(b)the design, construction, maintenance, operation and use of aircraft and related equipment;
(c)the planning, construction, establishment, operation and use of aerodromes;
(d)the establishment and use of airspace;
(e)the planning, construction, establishment, maintenance, operation and use of:
(i)facilities of the kind referred to in paragraph 8(1)(a) of the Air Services Act 1995; and
(ii)services of the kind referred to in paragraph 8(1)(b) of the Air Services Act 1995; and
(iii)services of the kind referred to in paragraph 6(1)(b) of the Australian Maritime Safety Authority Act 1990 to the extent that those services use aircraft;
and any construction associated with those facilities or services;
(f)the personnel engaged in:
(i)the maintenance of aircraft and related equipment: or
(ii)anything referred to in paragraph (c) or (e).”
In general terms, CASA has power to do all things that are necessary or convenient to be done for, or in connection with, the performance of its functions.[5]
[5] Act, s. 13(1)
Part III of the Act, which is concerned with the regulation of civil aviation, is divided into three general categories: general regulatory provisions,[6] Air Operators’ Certificates (“AOCs”)[7] and general offences in relation to aircraft.[8] Part IIIA is concerned with CASA’s powers of investigation and the remaining parts of the Act with administrative matters concerning the operation of CASA.
[6] Act, Division 1
[7] Act, Division 2
[8] Act, Division 3
The Civil Aviation Regulations: an overview of relevant regulations
Section 98 of the Act authorises regulations to be made provided they are not inconsistent with that legislation. These are found in the Regulations. Apart from regulations regarding the administration and organisation of CASA, the regulations are concerned with subjects such as registration and marking of aircraft, airworthiness requirements, maintenance, the reporting of defects in Australian aircraft, qualifications of flight crew, navigation logs, radio systems for use in, or in connection with, aircraft, aerodromes, air traffic services and other services, conditions of flight, rules of the air, signals for the control of air traffic, air service operations and dangerous goods.
Regulation 92 comes within Part 9 dealing with aerodromes and, more specifically, within Division 8 dealing with the use of aerodromes. It was amended with effect from 8 December 2004[9] and now provides that:
[9] Amended by Civil Aviation Amendment Regulations (No 4) 2004, r. 2 and Schedule 1, item [35] and see also r. 2
“(1) A person must not land an aircraft on, or engage in conduct that causes an aircraft to take off from, a place that does not satisfy one or more of the following requirements:
(a)the place is an aerodrome established under the Air Navigation Regulations;
(b)the use of the place as an aerodrome is authorised by a certificate granted, or regulation, under Part 139 of CASR;[[10]]
(c)the place is an aerodrome for which an arrangement under section 20 of the Act is in force and the use of the aerodrome by aircraft engaged in civil air navigation is authorised by CASA under that section;
(d)the place (not being a place referred to in paragraph (a), (b) or (c)) is suitable for use as an aerodrome for the purposes of the landing and taking-off of aircraft;
and, having regard to all the circumstances of the proposed landing, or take-off (including the prevailing weather conditions), the aircraft can land at, or take-off from, the place in safety.
Penalty: 25 penalty units.
(2)CASA may, in relation to an aerodrome, issue directions relating to the safety of air navigation.
(3)A person must not contravene a direction.
Penalty: 25 penalty units.”
[10] Civil Aviation Safety Regulations 1998
Regulation 152 comes within Part 11 which is headed “Conditions of Flight”. More specifically, it comes within Division 2 of that Part, which is concerned with flight rules. Until 6 August 2003, r. 152 provided that:
“Parachute descents, other than necessary emergency descents, shall not be made unless authorised and conducted in accordance with the written specifications of CASA.”
Penalty: 25 penalty units.”
Since 6 August 2003 r. 152(1) has provided that:
“(1) A person must not make a parachute descent if the descent is not:
(a)authorised in writing by CASA: and
(b)conducted in accordance with the written specifications of CASA.
Penalty: 25 penalty units.”
It is a defence to a prosecution if a parachute jump was a necessary emergency descent.[11]
[11] Regulations, r. 152(3)
CASA’s Instruments: a history of relevant Instruments
On 29 January 2004, Mr Anthony John Rothwell, General Manager of the Aviation Infrastructure and Sport Aviation Branch of CASA, issued Instrument No. CASA 34/04 (“Instrument 34/04”) under r. 92(2). The directions related to the safety of air navigation in relation to Barwon Heads. They applied to the pilot in command of an aircraft engaged in an operation involving the descent of parachutists within a two mile radius of Barwon Heads. Mr Rothwell stated that the directions took priority over any authorisation or specification issued under r. 152 of the Regulations other than an authorisation or specification specifically applicable to operations at, or in the vicinity of, Barwon Heads. The directions set out in Instrument 34/04 were:
“1. The pilot in command of an aircraft engaged in a parachute operation must not permit a person to exit the aircraft to conduct a parachute descent unless he or she ensures that the person can make the descent without:
(a)entering cloud; or
(b)having a flight visibility of less than 3 miles; or
(c)passing closer than 600 metres horizontally from cloud.
2.The pilot in command of an aircraft engaged in a parachute operation must not permit a person to exit the aircraft to commence a parachute descent unless:
(a)the pilot in command has, not less than 2 minutes before the person exits the aircraft, made a broadcast on the common traffic advisory frequency in use at the aerodrome, stating the location and altitude of the aircraft, and when the descent is expected to commence; and
(b)after making the broadcast referred to in paragraph (b) – the pilot in command has listened on the frequency to hear any aircraft response so as to determine whether there are any conflicting aircraft in the airspace in which the descent is to be conducted.
3.The pilot in command of an aircraft being used for parachuting operations within 2 miles of the aerodrome must at all times conduct the flight in accordance with regulation 172 of CAR 1988, whether or not the flight is otherwise being operated under the I.F.R. or V.F.R.”
On 13 February 2004, Mr Rothwell revoked Instrument 34/04 when he issued Instrument CASA 63/04 (“Instrument 63/04”). In Instrument 63/04, he issued another direction in relation to Barwon Heads and stated that it applies to the pilot in command of an aircraft engaged in an operation involving the descent of parachutists. It took priority over any authorisation or specification issued under r. 152. The direction was that:
“The pilot in command of an aircraft engaged in a parachute operation must not permit a person to exit the aircraft to conduct a parachute descent within a 2 mile radius of Barwon Heads aerodrome.”
After Selway J decided that Instrument 63/04 was invalid,[12] Mr Jim Marcolin, the Acting General Manager of General Aviation Operations and Aviation Safety Compliance at CASA, made a further Instrument: CASA 130/05 (“Instrument 130/05”). Mr Marcolin stated in the instrument that he made it under r. 92(2) of the Regulations and that it applied to the pilot in command of an aircraft engaged in an operation involving the descent of parachutists. The Direction given in the Instrument on 6 April 2005 was:
“The pilot must not allow a person to exit the aircraft to conduct a parachute descent within 4.8 kilometres of Barwon Heads aerodrome, Victoria (location …)”
[12] see [23] below
On 23 July 2003, Mr William John McIntyre, Executive Manager of Aviation Safety Standards in CASA, issued Instrument CASA 309/03 (“Instrument 309/03”) under r. 152. He revoked a previous CASA instrument and then:
“(b) authorise[d] members of the Australian Parachute Federation Incorporated (APF Inc) to make parachute descents if, and only if, the descents are conducted in accordance with the specifications set out in the document ‘Operational Regulations’ prepared by the APF Inc dated 3 March 2003 (APF Operational Regulations) and approved by CASA; and
(c)direct[ed] that members of the APF Inc, or persons who agree to be bound by the APF Operational Regulations, who are performing functions incidental or preparatory to a person making a parachute descent, must carry out these functions in accordance with the specifications set out in the APF Operational Regulations.”
On 29 January 2004, Mr Rothwell issued Instrument CASA 36/04 (“Instrument 36/04”). In that instrument, he issued “authorisation and specifications
in respect of parachute descents within 2 miles radius of Barwon Heads aerodrome …”. Mr Rothwell continued:
“A person who is a member of the Australian Parachute Federation Inc or the Australian Skydiving Association is authorised to make a parachute descent in the area referred to above only in accordance with the specifications set out in Schedule 1.
In case of any inconsistency, these specifications take priority over specifications that would otherwise be applicable to such a person, whether as a member of the Australian Parachute Federation Inc or the Australian Skydiving Association.
SCHEDULE 1
1.Subject to clause 2, a person conducting a parachute descent must not land at any place that is 200 metres or less from any part of the movement area of the aerodrome.
2.If a person is conducting a tandem descent or photographing a tandem descent, the person may land at any place that is not less than 150 metres from any part of the movement area.
3.A person must not conduct a parachute descent in the course of which he or she conflicts with any aircraft that is:
(a)on the live side of any circuit known to be in use at the time or that, having regard to the prevailing conditions, could reasonably be expected to be in use at the time; or
(b)using any runway, flight strip, apron or taxiway at the aerodrome.
4.A person must not conduct a parachute descent:
(a)into or through cloud; or
(b)when the flight visibility at all altitudes below the aircraft is less than 3 miles; or
(c)so as to pass less than 600 metres horizontally from cloud at any time during the descent; or
(d)from an altitude or flight level less than 1,000 feet below any cloud formation.”
On 31 January 2004, a delegate of CASA revoked Instrument 309/03 when he made Instrument CASA 09/04 (“Instrument 09/04”). That Instrument also authorised members of the APF to conduct a parachute descent in accordance with Operational Regulations.
On 13 February 2004, Mr Rothwell revoked Instrument 36/04 when he issued Instrument CASA 64/04 (“Instrument 64/04”). In doing so, he issued a “… specification in respect of parachute descents” and continued:
“The specification in Schedule 1 applies to a person who is a member of the Australian Parachute Federation Inc or the Australian Skydiving Association.
In case of any inconsistency, this specification takes priority over specifications that would otherwise be applicable to such a person, whether as a member of the Australian Parachute Federation Inc or the Australian Skydiving Association.
SCHEDULE 1
SPECIFICATION
1.A person must not conduct a parachute descent within 2 miles radius of Barwon Heads aerodrome, Victoria (location indicator YBRS, reference point South 38015.5’, East 144026.0’).”
On 30 November 2004, Mr Bill McIntyre, the Executive Manager, Aviation Safety Standards, at CASA made instrument CASA 563/04 (“Instrument 563/04”). It was an authorisation under r. 152 that read in part that he:
“(b) authorise[d] members of the Australian Parachute Federation Incorporated (APF Inc) to make parachute descents if, and only if, the descents are conducted in accordance with the specifications set out in the document ‘Operational Regulations’ prepared by the APF Inc dated 15 December 2004 (APF Operational Regulations) and approved by CASA; and
(c)direct[ed] that members of the APF Inc, or persons who agree to be bound by the APF Operational Regulations, who are performing functions incidental or preparatory to a person making a parachute descent, must carry out these functions in accordance with the specifications set out in the APF Operational Regulations.”
Just as Instrument 63/04 had been held to be invalid, so too had Selway J held Instrument 64/04 to be invalid.[13] On 6 April 2005, Mr Marcolin again revoked Instrument 36/04 and made CASA 131/05 (“Instrument 131/05”). The new instrument applied to a person who is a member of the Australian Parachute Federation Inc or the Australian Skydiving Association and authorised to make a parachute descent by an authorisation in force under r. 152 of the Regulations. It specified that:
“A parachute descent may not be made within 4.8 kilometres of Barwon Heads aerodrome, Victoria (location …).”
[13] see [23] below
Earlier proceedings in the Tribunal and the Federal Court in relation to CASA’s Instruments
On 20 February 2004, I decided that:
“1. the decision to revoke Instrument No. CASA 34/04 and to issue Instrument No CASA 63/04 is not a reviewable decision within the meaning of s. 31 of the Civil Aviation Act 1988; and
2.the decision to revoke Instrument No. CASA 36/04 and to issue Instrument No. CASA 64/04 is a reviewable decision within the meaning of s. 31 of the Civil Aviation Act 1988; and
3.adjourn[ed] further consideration to a date to be fixed.”
My decision was followed by an application by CASA to dismiss Mr McWilliam’s application for review under s. 42B(1)(a) of the AAT Act.[14] The applications was made on the basis that, even if Mr McWilliam were successful in the Tribunal on his application to review the decision embodied in Instrument 64/04, parachute descents could not be made within a two mile radius of Barwon Heads. That followed from the fact that Instrument 63/04 would remain in force. While 63/04 remained in force, a person could not make a parachute descent within a two-mile radius of Barwon Heads aerodrome regardless of what a pilot was permitted to do within that area.
[14] Section 42B(1)(a) provides:
CASA’s application was heard by Mr E Fice, Member. On 24 August 2004, Mr Fice decided to dismiss Mr McWilliam’s application under s. 42B. He summarised his reasons:
“For the reasons I have set out above, there seems to be no practical utility or benefit to the applicant in reviewing any decision embodied in Instrument Ndeg.. CASA 64/04 without reviewing the merits of the decision embodied in Instrument Ndeg.. CASA 63/04, other than utilising a favourable decision in respect of Instrument Ndeg.. CASA 64/04 for collateral purposes. Furthermore, although the matter was set down for hearing over four days, given that more than 17 witnesses were likely to have been called, it is probable that the matter would have run for far longer than the four days allocated. This would have consumed substantial resources and caused money and time to be expended on an application which has no utility. Accordingly, I consider that the application should be dismissed pursuant to s 42B of the AAT Act.”[15]
[15] Re McWilliam and Civil Aviation Safety Authority [2004] AATA 908; (2004) 82 ALD 648 at [20]; 654
Mr McWilliam did not seek to appeal against or seek judicial review of either Mr Fice’s decision or my decision. Instead, he sought judicial review of Instruments 63/04 and 64/04 in the Federal Court. His application was heard by Selway J, who decided that Instruments 63/04 and 64/04 were invalid and quashed them.[16] In doing so, he relied on his powers in s. 16(1) of the Administrative Decisions (Judicial Review) Act 1977 (“ADJR Act”) after finding that CASA had failed to give Mr McWilliam and Skydive a fair hearing before it made the two Instruments.
[16] McWilliam and Skydive City Pty Ltd v Civil Aviation Safety Authority [2004] FCA 1701; (2004) 214 ALR 251
Selway J also found that the decisions to make Instruments 63/04 and 64/04 were “clearly decisions of an administrative character”.[17] He did so against a background of general principles that he set out and in light of a letter written by Mr Rothwell on 13 February 2004 and accompanying the two Instruments he had made. In relation to the general principles, his Honour said:
“… a decision of CASA under regulation 92(2) and 152 of CAR could be ‘legislative’ or ‘administrative’ depending upon the nature of the decision and who it affected. For example, a decision requiring all pilots to adopt a particular safety procedure when approaching airports might be viewed as a broad policy decision which might be characterised as being a decision that was not of an administrative character. On the other hand, a decision that a major airport was unsafe for use by commercial airlines and prohibiting that use might be characterised as an administrative decision. Such a decision would be made by a statutory body (rather than by Parliament or the Governor General in Council), it would be made in an ‘Instrument’ (rather than by an Act or Regulation), it would relate to a specific airport, it would be based upon specific findings, rather than broad policy considerations and so forth.”[18]
The letter read in part:
“The directions are made in the interests of the safety of air navigation. They have been made to protect the safety of parachutists, aircraft and persons in the vicinity of Barwon Heads aerodrome. This is because since at least 2001, Luke McWilliam and Skydive City Pty Ltd have been a party to breaches of regulation 152 of the Civil Aviation Regulations 1988, when parachutists exiting from aircraft operated by Luke McWilliam and Skydive City Pty Ltd, including VH-MOS, have descended through cloud and near other aircraft.”[19]
Selway J found that the decision “… was plainly not a legislative decision. It was not argued that it was beyond power as a judicial decision. In those circumstances it was plainly a decision of an administrative character.”[20]
CONSIDERATION
[17] [2004] FCA 1701; (2004) 214 ALR 251 at [43]; 260
[18] [2004] FCA 1701; (2004) 214 ALR 251 at [43]; 260
[19] [2004] FCA 1701; (2004) 214 ALR 251 at [14]; 254
[20] [2004] FCA 1701; (2004) 214 ALR 251 at [44]; 260
Estoppel and jurisdictional issues: a summary of the submissions
For all practical purposes, the terms of Instruments 130/05 and 131/05 mirrored those of the earlier discredited Instruments 63/04 and 64/04. In light of my decision regarding the earlier pair of Instruments, Mr Harvey of counsel submitted that I should first consider whether I am estopped from considering what is, for all practical purposes, the same jurisdictional question in relation to the later pair of Instruments. Mr Harvey referred to broad principles of public policy underlying the doctrines of res judicata and issue estoppel. In summary, Mr Harvey submitted that it would be an abuse of process to allow parties to litigate repeatedly matters that have been formally determined. He relied on Wong v Minister for Immigration and Multicultural and Indigenous Affairs[21] and Cachia v Isaacs.[22] In summary, Mr Langmead SC with Mr Aizen of counsel submitted that the decisions of which Mr McWilliam now sought review were different decisions from those which it had previously made and which I considered in my earlier decision.
[21] [2004] FCAFC 242 at [36]
[22] (1985) 3 NSWLR 366 at 386 per McHugh J
Estoppel and jurisdictional issues: a summary of general principles
The notion of estoppel, or issue estoppel, was explained by Dixon J in Blair v Curran:[23]
“ A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment, decree or order necessarily established as the legal foundation or justification of its conclusion, whether that conclusion is that a money sum be recovered or that the doing of an act be commanded or be restrained or that rights be declared”.
[23] (1939) 62 CLR 464 at 531 and approved in cases such as Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 597-598
More recently, the Privy Council succinctly specified the three essential elements that must exist if the doctrine is to apply:
“(1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.”[24]
[24] Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at 935 per Lord Guest
In Blair v Curran, Dixon J went on to distinguish between res judicata[25] and issue estoppel:
“… in the first the very right or cause of action claimed or put in suit has in former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact of law is alleged or denied the existence of which is a matter necessarily decided by prior judgment, decree or order.”[26]
“It is a broad rule of public policy”, Fullagar J said in Jackson v Goldsmith.[27]
[25] Res judicata pro veritate accipitur. In Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 597, Gibbs CJ, Mason and Aickin JJ said: “The rule as to res judicata comes into operation whenever a party attempts in a second proceeding to litigate a cause of action which has merged into judgment in a prior proceeding.”
[26] (1939) 62 CLR 464 at 531
[27] (1950) 81 CLR 446 at 466
There are various cases considering estoppel but it is important to distinguish the various situations with which they are concerned.[28] Until recently, it has been clear that a decision of a statutory tribunal not exercising judicial power might create an estoppel if that tribunal were called upon again by the same parties to consider an issue it has previously decided. Gibbs J expressed it in this way:
“The doctrine of estoppel extends to the decision of any tribunal which has jurisdiction to decide finally a question arising between parties, even if it is not called a court and its jurisdiction is derived from statute or from the submission of parties, and it only has temporary authority to decide a matter ad hoc.”[29]
[28] Deputy President Jarvis canvassed some of these in Re Jebb and Repatriation Commission [2005] AATA 470 and I have canvassed others in Re Proctor and Commissioner of Taxation [2005] AATA 389, Re Custodial Limited and Australian Securities and Investments Commission [2005] AATA 775
[29] Administration of the Territory of Papua New Guinea v Daera Guba (1973) 130 CLR 353 at 453
In Miller v University of New South Wales,[30] Ryan and Gyles JJ referred to a number of cases on the subject and concluded that it is difficult, if not impossible, to reconcile them.[31] They referred to a passage from the judgment of the Full Court of the Federal Court in Kowalski v Trustee, Mitsubishi Motors Australia Ltd Staff Superannuation Pty Ltd[32] raising differences in previous authorities. The Full Court had found it unnecessary to resolve those differences but had questioned whether an administrative body could make a decision that was final and determinative so that it could give rise to issue estoppel. It added:
“What is absolutely clear is that the decision of an administrative tribunal in respect of a ‘jurisdictional fact’ is neither conclusive, nor binding: see Craig v South Australia (1995) 184 CLR 163 at 179.”[33]
[30] (2003) 132 FCR 147
[31] (2003) 132 FCR 147 at 167-169
[32] [2003] FCAFC 18
[33] [2003] FCAFC 18 at [13]
More recently, the High Court set out the passage from the judgment of Gibbs J in its judgment in Kuligowski v Metrobus.[34] It did so on the basis that it was common ground between the parties but it is significant that it did so without questioning it. In Kuligowski v Metrobus, the High Court had no need to consider the particular implications of an administrative tribunal’s making a decision about a “jurisdictional fact”. What it did consider was whether a decision made by a review officer under the Workers’ Compensation and Rehabilitation Act 1981 (WA) satisfied the requirement of finality to found one of the three bases required if issue estoppel were to come into play:
“A ‘final’ decision, then, is one which is not of an interlocutory character, but is completely effective unless and until rescinded, altered or amended. The fact that an appeal lies from a decision does not make it any less final …. It must be ‘final and conclusive on the merits’: ‘the cause of action must be extinguished by the decision which is said to create the estoppel’ ….”[35]
[34] [2004] HCA 34; (2004) 208 ALR 1 at [22]; 7
[35] [2004] HCA 34; (2004) 208 ALR 1 at [25]; 9
The non-judicial composition of the body, its functions, its speedy and informal processes, the substantial exclusion of legal representatives and its not being bound by the rules of evidence are all neutral on the question of finality.[36] The fact that a decision can be reconsidered does not prevent it from being final.[37] The character of an administrative decision, and so whether it has the necessary quality of finality, is determined by reference to the decision itself and the construction of the language used in the legislation under which it was made.[38]
[36] [2004] HCA 34; (2004) 208 ALR 1 at [32]; 10
[37] [2004] HCA 34; (2004) 208 ALR 1 at [33]; 10
[38] [2004] HCA 34; (2004) 208 ALR 1 at [33]-[39]; 10-12
That brings me back to the observation by the Full Court of the Federal Court in Kowalski v Trustee, Mitsubishi Motors Australia Ltd Staff Superannuation Pty Ltd that “…the decision of an administrative tribunal in respect of a ‘jurisdictional fact’ is neither conclusive, nor binding”. That observation needs to be understood in light of Minister for Immigration and Multicultural Affairs v Bhardwaj[39] decided by the High Court the year before.
[39] [2002] HCA 11; (2002) 209 CLR 597
The Immigration Review Tribunal (“IRT”) had purported to review a decision but, after finding that it had failed to comply with s. 360 of the Migration Act 1958 (“Migration Act”) requiring it to give Mr Bhardwaj an opportunity to appear, give evidence and present arguments, it reviewed the decision again and gave a second decision. When the High Court asked itself whether the IRT could make that second decision, it did not answer the question in terms of whether the IRT was estopped by the first decision or whether it had exhausted all of its powers in making the first decision and so was functus officio. Instead, it answered the question in terms of whether the IRT had made a decision at all when it purported to make its first decision. In brief, the High Court decided that the IRT had not made a decision at all as it had made a jurisdictional error. In deciding that the IRT had not made a decision at all on that first occasion, the doctrine of estoppel could have no application.
The reasoning of Gaudron and Gummow JJ, with whom McHugh concurred,[40] was:
“… a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person’s rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so. …”[41]
Their Honours reached their conclusion based on the general law but also referred to the Migration Act under which the IRT reviewed certain migration decisions. The general proposition is found in s. 33(1) of the Acts Interpretation Act 1901 (“AI Act”):
“Where an Act confers a power or imposes a duty, then, unless the contrary intention appears, the power may be exercised and the duty shall be performed from time to time as occasion requires.”
Their analysis of the Migration Act led them to conclude that:
“… a decision which does not involve jurisdictional error and which is not challenged within 28 days is effective for all purposes notwithstanding that, for the purposes of that Part, it involves reviewable error. There is no like limit with respect to decisions involving jurisdictional error which may be the subject of proceedings in this Court. …”[42]
[40] McHugh J’s concurrence was subject to two important qualifications but they do not affect the principles on which the majority based their judgment. Gleeson CJ and Callinan J reached the same conclusion. Gleeson CJ concluded that it was inconsistent with the scheme of the Migration Act to conclude that the IRT could treat a decision as legally ineffective and consider a matter afresh simply because it had been persuaded that it had denied one of the parties procedural fairness. There was, however, more to it than a denial of procedural fairness. What had occurred was an error in fact leading the IRT to fail to conduct a review:
“In those circumstances, it was not inconsistent with the statutory scheme for the Tribunal, upon becoming aware that it had not given effect to its own intention, and that it had failed to conduct a review of the delegate’s decision, to give the respondent the opportunity which the statute required, which he wanted, and which the Tribunal had intended to give him. On the contrary, it was in accordance with the requirements of the Act.” ([2002] HCA 11; (2002) 259 CLR 597 at [15]; 606)
Hayne J and Callinan J reached the same conclusion on the basis that what had happened. As Callinan J said, what had happened:
“… was something more than a breach of the rules of natural justice. It was a failure to exercise a jurisdiction which the Tribunal was bound to exercise. If one thing is abundantly clear, it is that the Tribunal must, if an application has properly been made … review the Minister’s decision. This means that the tribunal must exercise the jurisdiction of reviewing the Minister’s decision …”: ([2002] HCA 11; (2002) 259 CLR 597 at [163]; 649) and see per Hayne J at ([2002] HCA 11; (2002) 259 CLR 597 at [155]; 647)
[41] [2002] HCA 11; (2002) 259 CLR 597 at [53]; 616
[42] [2002] HCA 11; (2002) 259 CLR 597 at [50]; 614
The practical effect of the principles in Minister for Immigration and Multicultural Affairs v Bhardwaj and Kowalski v Trustee, Mitsubishi Motors Australia Ltd Staff Superannuation Pty Ltd for a tribunal such as this is that, if the parties raise an issue concerning its jurisdiction and it is submitted that it has already made a decision on that issue, it must:
consider whether the two issues are the same;
if they are the same, apply the general law unless it has been altered by the statutory context in which the first decision is made. The general law is that a decision on a jurisdictional issue cannot be regarded as conclusive or binding. The reason for this is that it must be open to reconsideration lest it be incorrect. If it be incorrect, it is a nullity and must be made again; and
determine whether the statutory context modifies the application of the general law so that the first decision must be treated as a final decision on that issue.
Although it is not so in this case, it is conceivable that a person might repeatedly lodge an application in relation to which the Tribunal has decided on more than one occasion that it has no jurisdiction. Consideration could then be given to using its powers under s. 42B of the AAT Act to dismiss the application on the basis that it is frivolous and vexatious. Whether or not the Tribunal is correct in its view of its jurisdiction must, if it continues to be questioned, be a matter determined on judicial review.
The doctrine of estoppel: application of the general principles
The issues that I am now asked to consider and the parties between whom they are raised are the same as in the first proceeding. They are jurisdictional issues raised by different reviewable decisions. Do they have the necessary degree of finality required for me to apply the principles of estoppel? That depends on the legislative context established by the AAT Act and the Act and there are two aspects that I have considered.
First, an essential part of the statutory context is that it permits an application to be made for review of a reviewable decision. There is no limitation on an application’s being made because CASA had earlier made a reviewable decision in the same terms and that reviewable decision had been reviewed. If an application were made for review of precisely the same decision and not simply a decision in the same terms as an earlier decision, there could be a limitation. That would come about if the Tribunal had already reviewed the first decision and, having used all of its powers (presumably without jurisdictional error) was functus officio.[43] The scheme of the legislation is that each new reviewable decision permits a new application to be made. Each new case requires the Tribunal to consider, whether expressly or implicitly, its jurisdiction to review the decision.
[43] see Bogaards v McMahon (1988) 8 AAR 556 at 565 and Hanna v Australian Postal Commission (1990) 12 AAR 511 at 514 and see [34] above.
Second, I have already referred to review provisions relating to the Tribunal’s decisions and these are relevant in the context of the Tribunal’s decisions under the Act: s. 44 of the AAT Act, s. 13 of the ADJR Act and s. 39B of the Judiciary Act 1903. Just as a superficial reading of the Migration Act gives the impression that Parliament intended that the Tribunal’s decision would be final subject only to review on a question of law, a superficial reading of the AAT Act and the Act give the same impression. In either case, the Tribunal’s decision sets in train a series of substantive and procedural consequences. There is one important difference. Unlike the provisions of the Migration Act considered by the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj, there are no provisions in the Act limiting the scope of the Tribunal’s decision in the first place or of any subsequent judicial review that may be undertaken of a decision made by the Tribunal. As the High Court concluded that the structure of the Migration Act did not alter the general principle that that IRT could reconsider its decision if it had made jurisdictional error, the absence of similar limitations in relation to the Tribunal’s review of decisions under the Act suggests that the Tribunal can reconsider its initial decision if it has made a jurisdictional error.
Considering the two aspects together leads me to conclude that, if my first decision is incorrect and so is affected by a jurisdictional error, it does not have a sufficient degree of finality for the purposes of the doctrine of estoppel. In other words, it could not be regarded as a final decision preventing me from reconsidering the issue.
What is a “jurisdictional error”? The expression was considered by Gaudron J in Minister for Immigration and Multicultural Affairs v Yusuf.[44] Referring to her earlier judgment in Abebe v Commonwealth[45] when she considered its meaning
in the context of and application for relief under s. 75(v) of the Constitution, her Honour said that:
“… the notion of jurisdictional error … ‘is not confined to situations in which a tribunal either lacks jurisdiction or exceeds its jurisdiction’ but extends to situations in which it ‘wrongly den[ies] the existence of its jurisdiction or … mistakenly place[s] limits on its functions or powers’.”[46]
[44] (2001) 206 CLR 323; 180 ALR 1
[45] (1999) 197 CLR 510 at 552 [108]; 162 ALR 1 at 31-32
[46] (2001) 206 CLR 323; 180 ALR 1 at 339; 11 per Gaudron J
What amounts to jurisdictional error when Parliament has provided a statutory framework of judicial review of administrative decisions depends on the general law and any qualifications of that law made by the statutory framework.[47] In the absence of any qualification, jurisdictional error may take various forms including:
“… taking an irrelevant consideration into account. Equally, it may be disclosed by the failure to take a relevant matter into account.”[48]
“…failure of the tribunal to take a particular matter into account indicat[ing] that, in the circumstances, the tribunal has misunderstood its duty or applied itself to the wrong question and has, on that account, failed to conduct a review as required by … the Act.”[49]
“Subject to any … statutory provision, denial of natural justice or procedural fairness will ordinarily involve failure to comply with a condition of the exercise of decision-making power, and jurisdictional error.”[50]
[47] (2001) 206 CLR 323; 180 ALR 1 at 340; 12
[48] (2001) 206 CLR 323; 180 ALR 1 at 340; 12
[49] (2001) 206 CLR 323; 180 ALR 1 at 340; 12
[50] Plaintiff S157/2002 v The Commonwealthof Australia (2003) 211 CLR 476 at 490 per Gleeson CJ
In the case with which I am concerned, there is nothing in the statutory framework of review that suggests that the principles of the general law do not apply. It follows that, if I were in error in deciding that I did not have jurisdiction to review CASA’s decision to revoke Instrument CASA 34/04 and to issue Instrument CASA 63/04 within the meaning of s. 31 of the Act, I will have made a jurisdictional error. That means that the decision I made on that issue cannot be a decision of the sort estopping me from considering the issue once more.
The Tribunal’s jurisdiction if Instrument 130/05 is ultra vires
Mr Langmead submitted that Instrument 130/05 is ultra vires in that it is not supported by r. 92(2). That regulation appears in Part 9 of the Regulations, which is headed “Aerodromes”. The regulation, which is headed “Use of aerodromes”, provides:
“CASA may, in relation to an aerodrome, issue directions relating to the safety of air navigation.”
Mr Langmead referred to other Parts of the Regulations to demonstrate the specificity of each Part and so their narrow application. Part 11, for example, is headed “Conditions of flight” and Part 12 “Rules of the air”. Division 2 of Part 12 is headed “Operation on and in the vicinity of aerodromes”. The specificity of the headings is indicative of their narrow application. So too is the definition of “aerodrome” appearing in s. 3(1) of the Act:
“aerodrome means an area of land or water (including any buildings, installations and equipment), the use of which as an aerodrome is authorised under the regulations, being such an area intended for use wholly or partly for the arrival, departure or movement of aircraft.”
Mr Langmead supported his submission by reference to the Tribunal’s decisions in Re Upton and the Department of Transport[51] and Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW).[52]In Upton, the Tribunal had set aside the decision because the Regional Director had not had power to make it. In Brian Lawlor, the Tribunal had held that it possessed jurisdiction and had set aside the decision under review on the ground that there had been no power to make it.
[51] (1977) 1 ALD 150; 15 ALR 675
[52] (1978) 1 ALD 167
An appeal against the Tribunal’s decision in Brian Lawlor was dismissed in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd.[53] The Full Court concluded that the Tribunal had jurisdiction to review “… a decision in fact made, regardless of whether or not it is a legally effective decision. … [and] in the purported exercise of powers conferred by the enactment.” It did not distinguish between a decision made without power because, for example, the power to make it existed but the person making it did not hold the necessary delegated authority, and a decision which there was no power to make at all. Bowen CJ concluded that the Tribunal had jurisdiction to consider its power in either case.[54] Smithers J also considered the situation and adopted a passage from the decision of Brennan J in Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW):
“ ‘A decision is a fact, to be distinguished from its legal consequences. A decision made beyond power but in its intended exercise does not carry the same legal consequences as it would have carried if there had been power to make it. Axiomatically, the legal consequences which it does carry depend upon the effect attributed by the law to the fact of the decision. …
‘Where a decision is made beyond power, the legal effect which the decision maker seeks to achieve is denied; but that says nothing as to whether the decision may be reviewed, quashed, or otherwise affected by order of a court or of an appeal tribunal. The denial of the legal effect desired does not itself prevent the decision from having the effect of enlivening a jurisdiction conferred by law upon a court or appeal tribunal to review, quash or otherwise affect the decision. The right to invoke the jurisdiction depends upon the terms of the law creating that right and conferring jurisdiction to grant relief against the decision in question. Where “decision” is used in the provisions of the Administrative Appeals Tribunal Act relating to a right to apply for review, it is referring to a decision made in fact, and not to the effect which the decision may have under the power in the intended exercise of which it was made.’ ”[55]
After referring to the wide meaning given to the word “decision” by s. 3(3) of the AAT Act, Smithers J continued:
“Accordingly it is my view that the fact that a decision is made by an administrator to take action which he has no power to take in a legally effective way does not exclude that decision from review by the Tribunal.
But to be reviewable such a decision must satisfy the criterion that it may properly be described as a decision made in the exercise of powers conferred by a relevant enactment …”[56]
“… adopting what I have called a liberal construction of the relevant expressions in ss. 25 and 26 … [of] the Administrative Appeals Tribunal Act which is appropriate to the nature and object of that Act, the necessary conclusion is that those decisions are reviewable which are made by an administrator in purported or assumed pursuance of the relevant statutory provision. …”[57]
[53] (1979) 41 FLR 338
[54] (1979) 41 FLR 338 at 345
[55] (1978) 1 ALD 167 at 179-180 referred to by Smithers J at (1979) 41 FLR 338 at 370
[56] (1979) 41 FLR 338 at 370
[57] (1979) 41 FLR 338 at 373
More recent authority supports the approach taken by the majority Bowen CJ and Smithers J. Earlier this year, Spigelman CJ said in The Ombudsman v Laughton:[58]
“… As a matter of authority, the general proposition that a decision made without jurisdiction cannot be the subject of an appeal was rejected by the Privy Council in Calvin v Carr [1979] 1 NSWLR 1 at 8D-G. …”[59]
[58] [2005] NSWCA 339
[59] [2005] NSWCA 339 at [47]
His Honour referred to passages from the judgment of Bowen CJ in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd[60] to which I have already referred and applied the same approach. Gaudron and Gummow JJ reached a similar view in Minister for Immigration and Multicultural Affairs v Bhardwaj:
“… it is neither necessary nor helpful to describe erroneous administrative decisions as ‘void’, ‘voidable’, ‘invalid’, ‘vitiated’ or, even, as ‘nullities’. To categorise decisions in that way tends to ignore the fact the real issue is whether the rights and liabilities of the individual to whom the decision relates are as specified in that decision. And, perhaps more importantly, it overlooks the fact that an administrative decision has only such force and effect as is given to it by the law pursuant to which it was made. …”[61]
A little later they observed that “… the Parliament may give an administrative decision whatever force it wishes”[62] although it must do so within the limits of constitutional power. Hayne J expressed a similar sentiment:
“The inquiry about the legal consequences to be attributed to what was done in September 1998 must begin and end with the Act.”[63]
[60] (1979) 41 FLR 338
[61] [2002] HCA 11; (2002) 209 CLR 597 at [46]; 613
[62] [2002] HCA 11; (2002) 209 CLR 597 at [47]; 613
[63] [2002] HCA 11; (2002) 209 CLR 597 at [147]; 644
In summary, the authorities to which I have referred require me to look to the legislation to decide the effect, if any, that is to be given to a decision that is made without power.[64] Returning to s. 25 of the AAT Act and s. 31 of the Act as well as the general framework of that legislation, there is nothing to suggest that the Tribunal does not have jurisdiction to review a decision made by CASA in purported exercise of its powers even if its decisions are invalid. Section 31 speaks in terms of the Tribunal’s having power to review a reviewable decision. A “reviewable decision” is a term that is defined in terms of a decision that has in fact been made rather than in terms of a decision that has been validly made. Assuming that the decision to make Instrument 130/04 is indeed a reviewable decision, and I will come back to that, I have concluded that I would have power to review CASA’s decision to make Instrument 130/05 even though it may have been invalidly made.
[64] In reaching this conclusion, I have applied principles different from those inherent in the conclusion reached by the President of the Tribunal, Downes J, in a different context in Re Strauss and Secretary, Department of Family and Community Services [2005] AATA 608. His Honour was concerned with a decision made by a decision-maker to whom the Secretary had not delegated appropriate authority. The decision-maker had purported to make a decision under s. 8(11) of the Social Security Act 1991 to determine that certain amounts should be treated as income. At [51], the President:
The Tribunal’s powers on review if Instrument 130/05 is ultra vires
Although I have decided that my jurisdiction would not be impeded by its being invalidly made, any such invalidity could well impinge on the range of powers that I could exercise were I to find that it was a reviewable decision. This comes from the powers that I have under s. 43 of the AAT Act. That section provides, in part, that “… the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision …” but that it may only do so “for the purposes of reviewing a decision”.[65] Its powers must be limited to those that are relevant for the making of the decision under review. In Re Donald and Australian Securities and Investments Commission.[66] The Tribunal, of which I was a member, reviewed a number of previous authorities considering the extent of the Tribunal’s powers: Fletcher v Commissioner of Taxation,[67] Stevenson v Commissioner of Taxation,[68] Re Control Investment Pty Ltd and Australian Broadcasting Commission (No. 2)[69] and Secretary, Department of Social Security v Riley.[70] It concluded:
“ Subject to any statutory qualifications to the contrary, the principles adopted in each case require that the Tribunal first identify the decision under review. It must have then satisfy itself that it has jurisdiction to review that decision. It will do so by having regard to the scheme of the legislation and remembering that no provision of the AAT Act (and particularly not s. 43(1)) gives it jurisdiction to review a decision. Having done that, the Tribunal must then identify the powers and discretions that rested in the decision-maker when that decision was made. They may be found in the provision under which the decision was made or they may be found in other provisions of the statutory framework of which that particular provision is a part. Those are the powers and discretions that then rest in the Tribunal by virtue of s. 43(1) of the AAT Act. There is no requirement that those powers and discretions must lead to a decision that would itself be reviewable by the Tribunal had it been made by the decision-maker in the first instance and an application for review lodged in the Tribunal.”[71]
[65] AAT Act, s. 43(1)
[66] [2001] AATA 622; (2001) 64 ALD 717 at [40] to [47]; 726-728
[67] (1988) 19 FCR 442
[68] (1991) 29 FCR 282
[69] (1981) 3 ALD 88
[70] (1987) 17 FCR 99
[71] (2001) 64 ALD 717 at 728
On appeal, Kenny J, with whom Gray J concurred, in Australian Securities and Investments Commission v Donald[72] referred to the judgment of Finn J in Comcare v Burton[73] in concluding that s. 43(1) of the AAT Act is not itself a source of jurisdiction but confers powers on the Tribunal in relation to matters in which it has jurisdiction.
“Of course, the tribunal is not entitled to exercise a power conferred on a decision-maker for some purpose unrelated to the decision under review. What this means in a given case must be determined by reference to the nature of the decision that the original decision-maker was required to make.”[74]
[72] (2003) 203 ALR 566
[73] (1998) 157 ALR 522; 50 ALD 846 at 528; 851
[74] (2003) 203 ALR 566 at 574
The powers and discretions that rest in the decision-maker are those that validly rest in that person. That requires a consideration of the validity of the powers that have been given by the statutory framework within which the decision is reviewed and in which the tribunal is to exercise its powers. Usually, that consideration is implicit in the Tribunal’s reasoning process for the validity of the powers is clear and unquestioned. Sometimes validity is not clear and the consideration must be explicit. Of course, the Tribunal’s consideration cannot lead to its determining whether a power is validly given; it does not exercise judicial power. Its consideration can lead only to its forming an opinion as to whether a power is validly given for the purpose of reaching a decision of its own that is based on valid powers.[75]
[75] I discussed this matter in greater detail in Re Jonsson and Marine Council (No. 2) (1990) 12 AAR 323 but the wider issues it raises are not relevant in this case.
Even if I were to conclude that r. 92(2) does not support Instrument 130/05 that would not automatically lead to the conclusion that I should set the Instrument aside. As the Tribunal can exercise all of the powers of the decision-maker, there may be another power given to CASA by the Act or the Regulation and which the Tribunal could exercise after reviewing the Instrument. This issue was not canvassed at the hearing and would have to wait for any hearing.
Instrument 130/05: is it a reviewable decision?
In answering this question, I will begin with s. 31(1) of the Act. Three elements must be satisfied for a decision to be a reviewable decision. It is not enough that it meets the description of an administrative decision for the decisions to make the Instruments are surely that. The first element is “a certificate, permission, permit or licence”. The second is that it has been “granted or issued under this Act or the regulations”. The third is that there has been either:
“a refusal to grant or issue, or a cancellation, suspension or variation of …” one of those mentioned in the first element; or
“the imposition or variation of a condition, or the cancellation, suspension or variation of an authorisation, contained in …” one of those mentioned in the first element.
As I did in my previous decision, I will begin with the meaning of each of the words: “certificate, permission, permit or licence” and their ordinary meanings:
certificate: “… 1 The action or fact of certifying or giving assurance; certification, attestation. … 2 A document in which a fact is formally certified or attested; esp. one formally attesting status, medical condition, abilities, fulfilment of requirements, ownership of shares, etc.; a licence. …”
permission: “… 1 The action of permitting, allowing, or giving consent; liberty or licence to do something; leave. … 2 A (formal) consent or authorization; esp. a document giving this, = PERMIT n. 2. …”
permit: “… 1 (Formal) permission. … 2 A document giving permission to do a specified thing; a warrant, a licence. …”
licence:“… 1 Liberty, esp to do something; leave, permission. … 2 Formal, usu. printed or written, permission from an authority to do something (esp. marry, print or publish a book, preach, drive on a public road, or carry on some trade) …, or to own something …; a document giving such permission; a permit. …”[76]
[76] The New Shorter Oxford English Dictionary (1993)
On their face, the words appear to refer to documents, or at least to some sort of formal expression. I have decided from the way in which the words are used elsewhere in the regulations that this is their intended meaning. Given their ordinary meanings, though, it is possible that each word may mean either the action of certifying, permitting, giving permission or giving leave as the case may be. I have concluded that, in the context of the Act and the Regulations, this alternative meaning for each is not the meaning intended to be used. Regulation 298, for example, refers to “Every application for the issue or renewal of a licence, certificate, permit, authority or other document under the regulations …”, r. 301 to the “holder of a licence, certificate or other document”, r. 302 to the production of a “licence for inspection” and r. 303 to conditions to which CASA may grant a licence or certificate. I reach the same conclusion when I have regard to the Act. CASA’s functions include “issuing certificates, licences, registrations and permits”.[77] That suggests that the Act is referring to a “certificate, permission, permit or licence” as made in a documentary or formal form rather than in the sense of the act of certifying, permitting, giving permission or leave. That this is so is confirmed by the references in both ss. 31(1)(a) and (b) and particularly to the reference in s. 31(1)(b) to the “authorisation contained in such a certificate, permission, permit or licence”.
[77] Act, s. 9(1)(e)
Having decided that they must be in a documentary or at least a form with some formality, what do they encompass? The Act and the Regulations speak also of “directions”, as in r. 92(2) and of being “authorised” as in r. 152(1). In relation to the former, the Act speaks of the Minister’s giving CASA directions.[78] More relevantly, s. 98(3)(h) provides that the power to make regulations given by ss. 98(1) and (2) includes:
“… the power to make regulations for or in relation to the following:
(g)empowering CASA, or an officer authorised by CASA, to give or issue directions or instructions to all or any of the persons holding licences, permits or certificates under this Act or the regulations, being directions or instructions with respect to matters affecting the safe navigation and operation, or the maintenance, of aircraft, and providing for the manner in which such directions and instructions are to be notified.”
Here the distinction is clearly drawn between directions on the one hand and licences, permits or certificates on the other.
[78] e.g. Act, s. 12
The word “permit” is not used in the Act in the sense of a document or other formal expression of permission although there are frequent examples of its being used in the sense of permitting or giving permission. The word “permission” is used in a number of provisions in the Act. It is used, for example, in s. 18 in the context of a person’s applying for “a permission”. CASA must give that permission if it is satisfied that the person has been complied with, or is capable of complying with, the safety rules.[79] CASA may only impose a condition on the permission or cancel or suspend that permission in order to ensure compliance with the safety rules.[80] A “permission” in that section is defined to mean:
“… a permission under this Part [III] (other than paragraph 19(2)(c) or section 27A), but does not include an AOC.”[81]
Examples of permissions given under Part III are found in ss. 23 (requiring CASA’s written permission to carry dangerous goods if not permitted by the Regulations), 26 (requiring an aircraft to have CASA’s permission to arrive in or depart from Australian territory) and 27A (requiring CASA’s permission for the operation of a foreign registered aircraft without an AOC). An Air Operators’ Certificate, which is excluded from the word “permission” in s. 18(3), is issued under Division 2 of Part III. A certificate of airworthiness is issued under the Regulations.[82]
[79] Act, s. 18(1)
[80] Act, s. 18(2)
[81] Act, s. 18(3)
[82] Act, s. 20AA(3)
The word “licence” is used in the Act to signify licences held by flight crew members.[83] The heading to s. 20AB refers to flying an aircraft without a “licence etc”. The section itself refers to a person’s doing so without a “civil aviation authorisation”. That expression is defined to mean:
“… an authorisation under this Act or the regulations to undertake a particular activity (whether the authorisation is called an AOC, permission, authority, licence, certificate, rating or endorsement or is known by some other name).”[84]
In grouping the authorisations in this way, there is a clear indication that Parliament is drawing a distinction amongst the various ways in which an authorisation can be described and so in the manner in which it can be given.
[83] Act, s. 27AE(1)(d)
[84] Act, s. 3(1)
The manner of grouping is also found in the stay provisions found in s. 31A. The section provides for the automatic stay of the operation of a decision[85] that, subject to the exceptions specified in s. 31A(2), has been made:
“… under this Act or the regulations that is reviewable by the Administrative Appeals Tribunal if, before making the decision, CASA was required by this Act or the regulations to give a show cause notice to the holder of the civil aviation authorisation concerned.”[86]
The exceptions in s. 31A(2) include:
“… a decision under the regulations to cancel a licence, certificate or authority on the ground that the holder of that licence, certificate or authority has contravened a provision of this Act or the regulations …”.
[85] Act, s. 31A(3)
[86] Act, s. 31A(1)
Among those exceptions is an “authority”. That is consistent with the other provisions of the Regulations for they provide for authorities in the form of certain airworthiness authorities[87] and aircraft welding authorities[88] and for review of certain decisions in relation to those airworthiness authorities[89] and aircraft welding authorities.[90]
[87] Regulations, r. 33B
[88] Regulations, rr. 33, 33C and 33D
[89] Regulations, rr. 297A(1)(ba) and (bb)
[90] Regulations, rr. 297A(1)(bc)-(bf)
With one exception, the word “authority” is not used in any relevant sense in the Act. The exception relates to its use in the expression “mixed authority AOC” in s. 28BC relating to an AOC authorising the operation of a foreign registered aircraft on regulated domestic flights and other operations.[91] As an AOC is itself a certificate issued under Division 2 of Part III of the Act,[92] this does not represent a use of the word authority in the Act in the sense in which it is used in s. 31A(2).
[91] Act, s. 28BC(4)
[92] Act, s. 3(1)
Given the manner in which the Act and Regulations have chosen to use them, I consider that the words “certificate, permission, permit or licence” must be interpreted carefully to ensure that they are not given such a broad interpretation that they trespass upon the meanings of other words used elsewhere in the Act and Regulations but which Parliament has not chosen to use in s. 31. At the same time, I must give recognition to any indications given elsewhere in the Act as to the meaning that Parliament has intended. Taking “permission” as an example, it could be interpreted as allowing a person or giving a person liberty or licence to do an act or authorising that person. At the same time, Parliament has chosen to use the words “licence” and “authorise” or “authority” elsewhere. Given the careful way in which it has done so, it could be thought that the meaning of the word “permission” could not encompass concepts such as “authorisation” or “authority”. If it were not for the provisions of s. 18(3), I would favour the latter interpretation. Those provisions, however, persuade me that I should adopt a broader interpretation. By excluding it from being a permission for the purposes of s. 18, s. 18(3) assumes that an AOC is otherwise to be regarded as a permission under the Act. An AOC is a certificate issued by CASA and, according to its terms, it “authorises” flights into and out of Australian territory and their operation in Australian territory as well as the operation of Australian aircraft outside Australian territory.[93] CASA may grant permission to a foreign registered aircraft without an AOC to operate regulated domestic flights in certain circumstances. It may do so under s. 27A and then only for a limited period of no more than seven days.[94] That section refers to “permission” and it is limited to a particular circumstance. An AOC is subject to conditions but is of more general application. Even so, having regard to s. 18(3), it seems to me that the Act does not intend to draw a distinction of substance between the words “permission” and “authorisation” so that an authorisation is not encompassed, for the purposes of the review provisions a permission does not include an authorisation.
[93] see Act, s. 27
[94] Act, s. 27A(3)
These considerations indicate that the essential character of the document, if it is found in a document, should be examined to determine its essential character. If it is in fact a permission or, indeed, a certificate, permit or licence as the case may be, then it should be regarded as such regardless of whether the document or form in which it appears is called by another name such as a certificate or authorisation.
Is there a “certificate, permission, permit or licence” in this case that has been affected as required by the second element in s. 31(1)? There are two documents that need to be considered: Instrument 63/04 that was revoked by Instrument 130/05 and Instrument 563/04. In my previous decision, I analysed the issue by reference to r. 92(2). If Instruments 63/04 and 130/05 were made and the earlier revoked validly under r. 92(2), they must be regarded as “directions relating to the safety of air navigation”. Are directions of that sort a “certificate, permission, permit or licence”? I think not. Given the careful way in which the Act and the Regulations differentiate the various types of decisions that are reviewable, I do not consider that they are included. A “direction” cannot be regarded as a “certificate, permission, permit or licence”. There is no sense of permission or authorisation let alone of certificate or licence in a document expressed in mandatory terms. Therefore, the decision to make the Instruments does not meet the first of the three essential elements. Even if Instrument 130/05 were to meet the second and third essential elements, it cannot amount to a reviewable decision without meeting the first.
If the Instruments are not validly made under r. 92(2), I refer to CASA’s functions under s. 9(1) of the Act in “developing and promulgating appropriate, clear and concise aviation safety standards”.[95] As s. 13(1) of the Act provides that CASA has power to do all things that are necessary or convenient to be done for, or in connection with, the performance of its functions, it has power to make those standards. “Aviation safety standards” is defined in part to mean “… standards relating to …the establishment and use of airspace”.[96] “Airspace” is not defined. Instrument 63/04 has the form and substance of a standard relating to the use of airspace. The airspace with which it is concerned is that within a two mile radius of Barwon Heads. Does it do that by a means that can be described as a “certificate, permission, permit or licence”? I think not. Again, because the Act uses each of the words quite specifically and I do not consider that they encompass a standard.
[95] Act, s. 9(1)(c)
[96] Act, s. 3(1)(d)
As I do not consider that CASA’s decision meets the first essential criterion of a reviewable decision, there is no need to consider the second and third. It follows that I do not consider that the decision to make Instrument 130/05 is a reviewable decision within the meaning of s. 31 of the Act.
Instrument 131/05: is it a reviewable decision?
That brings me to Instrument 131/05. It is relevant to have regard also to Instrument 563/04, which was an authorisation under r. 152. Mr Langmead submitted that it is either a permit or permission for pilots to allow parachutists to exit or a permit or permission for parachutists which contains an authorisation for pilots. I do not need to decide which way it should be read. I would note, however, that if it were to be read as properly limited to being an authorisation for parachutists and if it were a reviewable decision, it would be open for a pilot to seek review on the basis that he was a person whose interests affected by the decision.[97] There is no question in this case that, if the decision is a reviewable decision, Mr McWilliam is a person whose interests are affected by the decision and he is entitled to make an application for its review.
[97] AAT Act, s. 41
Can the decision to make Instrument 131/05 under r. 152 be read as a decision varying a certificate, permission, permit or licence granted or issued under the Act or the Regulations? An authorisation is not specifically included in the words “certificate, permission, permit or licence” of s. 31. For the reasons I have given above, I consider that the word “permission” is wide enough to encompass an authorisation. Instrument 563/04 is an authorisation made or granted under r. 152. It is a permission within the meaning of s. 31(1) of the Act. Instrument 131/05 is a decision varying that authorisation. It is a decision granted or issued under the Regulations. Therefore, I have concluded that CASA’s decision to make Instrument 131/05 was a reviewable decision within the meaning of s. 31 of the Act.
Practical consequences of my decision
In my previous decision, I came to the same conclusion. It seems to me that the same practical problem remains and there must be a very real question whether there is anything to be gained by reviewing the decision to make Instrument 131/05. Even if a parachutist were to be permitted to conduct a parachute descent within 4.8 kilometres of Barwon Heads as a result of the Tribunal’s reviewing Instrument 131/05, it could not review Instrument 130/05. Unless CASA were to change its own decision, a pilot would continue not to be permitted to allow a person to exit the aircraft to conduct a parachute descent within that distance from Barwon Heads. The practical result would be that, while aircraft are required for parachute descents, there could be no parachute descents within 4.8 kilometres of Barwon Heads.
Decision
For the reasons I have given, I have decided that:
1.the decision to revoke Instrument No. CASA 83/04 and to issue Instrument No CASA 130/05 is not a reviewable decision within the meaning of s. 31 of the Civil Aviation Act 1988; and
2.the decision to revoke Instrument No. CASA 64/04 and to issue Instrument No. CASA 131/05 is a reviewable decision within the meaning of s. 31 of the Civil Aviation Act 1988; and
adjourn further consideration to a date to be fixed.
I certify that the seventy-two preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ...............................................................
Nathaniel Wills Associate
Date of Jurisdiction Hearing 6 September 2005
Date of Decision 11 November 2005
Counsel for the Applicant Mr J. Langmead SC with Mr H. Aizen
Solicitor for the Applicant Grundy Maitland & Co LawyersCounsel for the Respondent Mr I. Harvey
Solicitor for the Respondent Mr A. Anastasi
Civil Aviation Safety Authority
“Where an application is made to the Tribunal for the review of a decision, the Tribunal may, at any stage of the proceeding, if it is satisfied that the application is frivolous or vexatious:
(a)dismiss the application; …”
“…conclude[d] a decision-maker required to consider subs 8(11) of the Act will not have jurisdiction to make a determination under para 8(11)(d) unless the power to do so has been delegated. Since the making of such a determination is administrative in nature there is no inhibition upon the Secretary delegating the power if he considers that to be appropriate. Where the power has not been delegated to an original decision-maker or a reviewing decision-maker neither the Social Security Appeals Tribunal nor the Administrative Appeals Tribunal will have jurisdiction to make a determination.”
Inconsistency amongst the Tribunal’s decisions is undesirable, but, regretfully, I feel obliged to differ from his decision by virtue of the authorities to which I have referred.
7
26
0