Roberts, M.J. v The Secretary to the Department of Aviation
[1985] FCA 89
•14 MARCH 1985
Re: MICHAEL JOHN ROBERTS
And: THE SECRETARY TO THE DEPARTMENT OF AVIATION and RICHARD HUGH JOHN
THOMPSON
No. NSW G 303 of 1984
Administrative Law - Aviation
59 ALR 309 / 2 FCR 16
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Morling(1), Neaves(1) and Spender(1)
CATCHWORDS
Administrative law - Judicial review - Suspension of commercial pilot licence pursuant to Air Navigation Regulations - Whether enactment of Administrative Appeals Tribunal Act 1975 operated to invalidate regulation authorising suspension - Whether decision to suspend vitiated by previous consent to prosecution for offences against regulations - Whether pending criminal proceedings precluded proper opportunity being afforded to show cause against suspension of licence.
Administrative Decision (Judicial Review) Act 1977, s.5
Administrative Appeals Tribunal Act 1975, s.26 and Part III of Schedule
Air Navigation Act 1920, ss.26, 28
Air Navigation Regulations, Part XV
Aviation - Suspension of appellant's commercial pilot's licence under reg 258 of the Air Navigation Regulations - Decision of Secretary to the Department of Aviation - Orders of review sought and refused - Appeal - Criminal proceedings pending - Whether appellant thereby deprived of opportunity to show cause under reg 258(3) - Whether provisions of the Administrative Appeals Tribunal Act 1975 (Cth) providing for review, invalidated reg 258 - Whether exercise by Secretary of dual statutory powers raised suspicion of bias - Air Navigation Act 1920 (Cth), ss 26, 28 - Air Navigation Regulations 1947 (Cth), regs 9, 44(1), 50(2), 51(1)(iii), 53(1)(c), 124, 243, 257, 258, 259, 265, 312(5) - Administrative Appeals Tribunal Act 1975 (Cth), ss 3(1), 25(4), 26, 29(1), Schedule, Pt III.
HEADNOTE
In September 1982, following an aviation accident, a delegate of the Secretary to the Department of Aviation invited the appellant to show cause why his commercial pilot's licence should not be varied or suspended under reg 258 of the Air Navigation Regulations. The time to show cause was extended at the appellant's request, pending the outcome of police proceedings for manslaughter against the appellant arising from the accident. Following his discharge on the manslaughter charge, the appellant unsuccessfully sought an assurance from the Department of Aviation that any answer he gave in showing cause would not be used in any further legal proceedings contemplated by the Department.
In July 1983 proceedings were instituted with the required consent of the Secretary to the Department of Aviation alleging offences against the Air Navigation Regulations. Later that month a similar notice to show cause was given in respect of the appellant's renewed annual licence, and again on request extended until the conclusion of legal proceedings against him. Notwithstanding this extension, the appellant advanced arguments as to why the Secretary had no power to cancel or suspend the licence.
In December 1983, while the criminal proceedings were still unresolved, a delegate of the Secretary suspended the licence of the appellant. The appellant sought review of the Secretary's decision and appealed when an order of review was refused.
Held: (1) The provisions of the Administrative Appeals Tribunal Act 1975 (Cth), providing for review of decisions of the Secretary to the Department of Aviation (the Secretary) under reg 258 of the Air Navigation Regulations, and replacing review procedures required by s 28 of the Air Navigation Act 1920 (the Act) and previously provided in reg 259, did not result in reg 258 becoming invalid as imposing a sanction without review procedures. The Act and the Regulations were modified to the extent necessary to give effect to the clear intention of the legislature under the Administrative Appeals Tribunal Act.
(2) The existence of criminal proceedings against the appellant did not deprive him of his rights to show cause against variation, suspension or loss of his licence, even though the granting of any request to delay showing cause until the criminal proceedings were completed might result in an undesirably long interim suspension of his licence.
(3) Statutory provisions cannot be construed as denying natural justice simply because they appear to omit a safeguard contained in earlier provisions for which they are substituted.
(4) As the Act gives the Secretary distinct powers both to consent to the institution of legal proceedings and to vary, cancel or suspend a licence, he can not be prevented on suspicion of bias, from exercising the latter power by reason only of his having previously exercised the former.
HEARING
Sydney, 1985, February 25; March 14. #DATE 14:3:1985
APPEAL
Appeal against a decision of St John J. dismissing an application pursuant to the Administrative Decisions (Judicial Review) Act 1977 for an order of review in respect of a decision made under the Air Navigation Act 1920 (Cth).
C Gee QC and N Rein, for the appellant.
The Air Navigation Act 1920 (Cth) (the Act), the Regulations thereunder and the common law all require a proper opportunity to be heard, which involves a reasonable right to present a case. There can be no suspension or cancellation of a licence, in the absence of an opportunity to "show cause" (reg 258(3)). Here, the appellant could only "show cause" by placing himself at risk of self-incrimination. As the charges under the Regulations are yet unresolved, there can not be a true opportunity to show cause. Further, the appellant's request for privilege in respect of his answer to the "show cause" notice was refused. The intervention of the operation of the Administrative Appeals Tribunal Act 1975 (Cth) (the AATA) has had an impact on the interpretation of the Regulations. An immunity corresponding to that conferred by reg 265 providing a meaningful review where criminal proceedings are pending or expected is not provided for by the AATA. Nothing in the Act or Regulations displaces the ordinary rules of natural justice, particularly the rule against an administrative authority acting as both prosecutor and judge. The appellant has been suspended upon grounds co-extensive with the charges laid against him. The Secretary is, therefore, prosecuting criminal charges against the appellant and at the same time for the purposes of suspension satisfying himself of a contravention of the Regulations, that being the precise issue before the criminal court. The interim suspensions (save for the first suspension imposed on 10 August 1982) were invalid on a true construction of regs 257 and 258. Regulation 258 is ultra vires: s 28 of the Act requires that regulations providing for cancellation or suspension must be accompanied by a right of appeal to a court. By reason of the AATA, the right of appeal to a court has been removed. Thus the scheme of review expressly required by s 28 of the Act does not exist and that scheme of review is a condition for the existence of a regulation dealing with cancellation or suspension of licence.
J J Steele and J E Heaghney, for the respondent.
The appellant has been allowed to show cause within reg 258(3). He could have remained silent or made only those submissions which could not possibly have incriminated him. If it is said that he should not be placed in the position of making admissions even of a purely formal nature when criminal charges are outstanding, then it becomes a question of whether at the risk of such relatively minor cost the legislature intended that powers of suspension and protection could not be exercised at the same time. The common law recognises a right to remain silent so as not to incriminate oneself, but that right cannot be elevated to a right to speak without being held responsible for what is said. The Secretary could not grant "privilege" because, inter alia, in subsequent proceedings before a court the documents containing incriminating material may be the subject of subpoena. It would then be for the court to decide whether privilege attached on some basis such as public interest. Although reg 265 is not reproduced in the AATA, the protection against self-incrimination is preserved by s 62 of the Act, and further because a court would regard a refusal to answer on the ground of self-incrimination as a "reasonable excuse" within that section where the legislation has not in specific terms taken away the right to remain silent.
Commonwealth v. Frost (1982) 61 FLR 378 and Crafter v. Kelly (1941) SASR 237, referred to.
There is a legislative intention to displace or modify the rules of natural justice. The Secretary was not both prosecutor and judge because he was not the informant. In any case, the issues before him in each case were different. If he is both prosecutor and judge, then the legislation shows a clear intention here to extinguish or modify the rules of natural justice.
Builders Registration Board of Queensland v. Rauber (1983) 57 ALJR 376, referred to.
The purpose of the legislation is directed to public safety. To accept the appellant's arguments would mean that in a very serious case where charges are laid, the legislature intended that the pilot be permitted to continue flying. The additional suspensions in July 1983 were due to the appellant's renewal of licence contrary to an undertaking not to do so. Part III of the Schedule to the AATA has effected an implied repeal of s 28 of the Act and amended or suspended the right of appeal in reg 259. Alternatively, the Regulations (for example, reg 259(5)) do comply with s 28.
Butler v. AG (Vic) (1961) 106 CLR 268, referred to.
Cur adv vult
Solicitors for the appellant: McDonell Moffitt Dowling Tayler.
Solicitors for the respondent: Australian Government Solicitor.
GFV
ORDER
The appeal be dismissed.
The appellant pay the respondents' costs of and incidental to the appeal. Appeal dismissed with costs
JUDGE1
Michael John Roberts ("the appellant") has appealed from a decision of the Court constituted by a single judge dismissing an application under the Administrative Decisions (Judicial Review) Act 1977. The application sought an order of review in respect of a decision made on 2 December 1983 under regulation 258 of the Air Navigation Regulations made under the Air Navigation Act 1920 suspending the appellant's commercial pilot licence for the period from 29 November 1983 to 29 November 1985.
In the proceedings from which the appeal is brought and in the notice of appeal the respondent was "The Secretary to the Department of Aviation". It is clear, however, that the holder of that office was not the decision-maker. The relevant decision was made by Richard Hugh John Thompson, the Regional Director of the New South Wales Region of the Department of Aviation, acting under a delegation to him by the Secretary to that department pursuant to regulation 9 of the Air Navigation Regulations. In those circumstances the Court gave leave to the appellant to join Mr Thompson as a respondent to the appeal.
On 7 August 1982 the appellant was the holder of a commercial pilot licence issued under the Air Navigation Regulations (see regulations 50(2) and 51(1)(iii)). That licence would, pursuant to regulation 53(1)(c), remain in force until 31 October 1982, being one year after the date of its issue.
Following the crash near Adaminaby, New South Wales on 7 August 1982 of a helicopter of which the appellant was the pilot, Mr F.J. Adams, a delegate of the Secretary to the Department of Aviation, on 10 August 1982 pursuant to regulation 257 of the Air Navigation Regulations suspended the appellant's licence for the purpose of an investigation under the regulations. That suspension was expressed to cease "upon the expiration of the investigation or at the expiration of twenty-eight days from and including the date of this suspension, whichever is the earlier".
By letter dated 3 September 1982 Mr P.S. Langford, another delegate of the Secretary to the Department of Aviation, gave notice to the appellant pursuant to sub-regulation 258(3) of the Air Navigation Regulations of the facts and circumstances that in his opinion warranted consideration being given to the variation or suspension of the appellant's licence and allowed the appellant 28 days within which to show cause why the licence should not be varied or suspended under that regulation. That period of 28 days was, by letter to the appellant dated 11 October 1982 signed by Mr Langford, extended "until 3 March 1983 or until the results of the New South Wales Police proceedings against you are known, whichever is the earlier". The proceedings referred to were committal proceedings for manslaughter arising from the death of three passengers in the helicopter crash to which reference has already been made.
On 2 March 1983 the appellant was discharged in respect of the manslaughter charges.
By letter dated 28 April 1983 the appellant asked the Regional Director of the New South Wales Region of the Department of Aviation for an assurance that any answer he might make to the letter dated 3 September 1982 would not be used "in any further legal proceedings that may be contemplated by the Department". By letter dated 27 May 1983 the appellant was informed that such an assurance would not be given. The appellant was also informed that favourable consideration would be given to a request that the period within which to show cause be extended until the conclusion of the proceedings which were to be instituted against him for contraventions of the Air Navigation Regulations.
On 13 July 1983 the appellant's licence was renewed until 31 October 1983 but was immediately suspended. The appellant was informed that the renewed licence had been suspended under regulation 257 of the Air Navigation Regulations for the purposes of an investigation under that regulation. The suspension was expressed to cease upon the completion of the investigation or at the expiration of 28 days from 13 July 1983 whichever was the earlier.
On 15 July 1983 proceedings were instituted charging the appellant with offences against regulations 44(1), 124(1), 124(2) and 243 of the Air Navigation Regulations. The institution of those proceedings had been consented to in writing by Collin William Freeland, the Secretary to the Department of Aviation, on 1 June 1983 (see sub-regulation 317(1)). It was apparently intended that the offences should be prosecuted upon indictment (see sub-regulation 312(5)).
By letter dated 28 July 1983 Mr Thompson who, as has already been mentioned, was the Regional Director of the New South Wales Region of the Department of Aviation and a delegate of the Secretary to that department, gave notice to the appellant pursuant to sub-regulation 258(3) of the Air Navigation Regulations of the facts and circumstances that in his opinion warranted consideration being given to the variation or suspension of the renewed licence. The facts and circumstances referred to were identical to those set out in the letter dated 3 September 1982 previously mentioned. The appellant was allowed 28 days from the date of the letter to show cause why his licence should not be varied or suspended.
By letter dated 2 September 1983 to the appellant's solicitors Mr Thompson confirmed that the period of time within which to show cause why the appellant's licence should not be varied or suspended was extended until the conclusion of the proceedings referred to in the letter dated 27 May 1983 which the writer said he understood would be some time in December 1983.
On 31 October 1983 the appellant's licence was again renewed to remain in force from 1 November 1983 until 31 October 1984.
On 10 November 1983 the appellant's solicitors wrote to the Secretary to the Department of Aviation stating that they were instructed by the appellant "to answer your letter to him dated 28 July, 1983, notwithstanding your extension of time granted by letter dated 2 September, 1983". Reasons were then advanced why the Secretary had no power to suspend or cancel the appellant's licence.
By letter dated 2 December 1983 addressed to the appellant and signed by Mr Thompson as a delegate of the Secretary to the Department of Aviation, the appellant was informed as follows -
"I refer to our letter of 13 July 1983, in which you were advised of the suspension of your Commercial Pilot Licence Number 036090, for the purpose of an investigation. The subject of the investigation was the accident to Bell 206 helicopter, VH-TXR, of which you were pilot-in-command, near Adaminaby, New South Wales, on 7 August 1982.
You were subsequently notified on 9 August 1983
(sic) that facts and circumstances of the accident are such that, in my opinion, they warrant consideration being given to the variation or suspension of your Commercial Pilot Licence Number 036090, under Regulation 258 of the Air Navigation Regulations. You were invited to show cause why such action should not be taken and I have studied your solicitor's reply of 10 November 1983.
My delegated responsibilities under the Air Navigation Act and Regulations, require me to take appropriate administrative action regarding your pilot licence, independent of any action which may be taken under the judicial system in order that the required safety standards for air navigation are preserved. Following a review of all the facts, including your solicitor's reply, I have decided to suspend your licence in pursuance of Regulation 258(1)(a) and (c) of the Air Navigation Regulations for the period from and including 29 November 1983 to and including 29 November 1985. I am satisfied that the following grounds exist for this suspension:
(a) that you have contravened, or failed to comply with, provisions of these Regulations; and
(b) you have failed in your duty with respect to matters affecting the safe operation of an aircraft.
Full particulars of the facts and circumstances that constitute the grounds for the suspension of your licence are as follows:
(a) On 7 August 1982 as pilot-in-command of Bell 206 helicopter VH-TXR, you permitted maintenance to be carried out on the aircraft by the fitting of a wooden platform between the landing skids by a person who was not, or was not employed for that purpose by, an appropriate person in contravention of Air Navigation Regulation 44(1).
(b) On 7 August 1982, Bell 206 helicopter VH-TXR, of which you were pilot-in-command, carried a person on the undercarriage of, and wooden platform attached beneath, the aircraft in contravention of Air Navigation Regulation 243.
(c) By the carriage of a person on the undercarriage of, and wooden platform attached to, Bell 206 helicopter VH-TXR on 7 August 1982, you flew the aircraft in such circumstances as to cause avoidable danger to that person in contravention of Air Navigation Regulation 124(2).
These breaches of the Regulations, whether or not they were contributory factors in the accident at Adaminaby on 7 August 1982, were committed prior to that accident and are the basis for this administrative action. It was only as a result of the accident at Adaminaby on 7 August 1982 that these breaches of the Regulations, were brought to my attention.
Your attention is drawn to your right of appeal against my decision. The appeal provisions of the Administrative Appeals Tribunal Act 1975 supersede the rights of appeal granted by Regulation 259 of the Air Navigation Regulations to a person aggrieved by a decision of the Secretary to suspend a licence. An application for review must be lodged with the Tribunal within 28 days of the serving of a notice of suspension.
You are requested to forthwith forward your Commercial Pilot Licence to me for a notice of suspension to be endorsed in it under the provisions of Regulation 267."
It was in respect of the decision conveyed to the appellant by that letter that an order of review under the Administrative Decisions (Judicial Review) Act 1977 was sought.
On 14 December 1983 the appellant was committed for trial for offences against regulations 44(1), 124(1) and 243 of the Air Navigation Regulations.
On 23 December 1983 the appellant applied to the Administrative Appeals Tribunal pursuant to sub-section 29(1) of the Administrative Appeals Tribunal Act 1975 for the review of the decision conveyed to the appellant by the letter dated 2 December 1983. That application has been adjourned generally.
Judgment was given on the application under the Administrative Decisions (Judicial Review) Act 1977 on 9 August 1984. The learned primary judge rejected a submission on behalf of the appellant that there had been a denial of natural justice in the making of the decision of 2 December 1983 by reason of the circumstance that the Secretary to the Department of Aviation both suspended the appellant's licence under regulations 257 and 258 of the Air Navigation Regulations and consented to the prosecution of the appellant for breaches of those regulations arising out of the same incident as gave rise to the suspension of his licence. The learned judge also rejected a submission on behalf of the appellant that, because showing cause would involve self-incrimination, the offer to show cause made to him was illusory and there was a breach of the audi alteram partem rule of natural justice. His Honour also rejected a submission that regulation 258 of the Air Navigation Regulations was ultra vires, holding that sub-section 28(1) of the Air Navigation Act 1920 (which in terms requires that a regulation providing for the suspension of a licence also include a right of appeal to a particular court or to such one of two or more courts as the licensee selects) had been impliedly amended by section 26 of the Administrative Appeals Tribunal Act 1975. The application was dismissed.
From that decision the present appeal is brought. The grounds of appeal, as set out in paragraphs 2 - 5 inclusive of the notice of appeal, are as follows -
"2. His Honour erred in law in holding that the principles of natural justice did not apply to the Air Navigation Act 1920 and the Air Navigation Regulations.
3. His Honour erred in law in holding that there was no breach of the audi alteram partem rule.
4. His Honour erred in law in holding that Air Navigation Regulation 258 was not ultra vires.
5. His Honour erred in law in finding that Section 26(1) and Schedule 1 of the Administrative Appeals Tribunal Act impliedly amended Section 28 of the Air Navigation Act 1920."
Before us it was submitted that regulation 258 of the Air Navigation Regulations was invalid. To understand the argument it is necessary to refer to certain provisions of the Air Navigation Act 1920 and the Air Navigation Regulations.
The Air Navigation Act 1960 (Act No. 39 of 1960 which came into operation on 19 August 1960) inserted into the Air Navigation Act 1920 section 26. Sub-section 26(1) conferred on the Governor-General a wide power to make regulations. Sub-section 26(2) provided that, without limiting the generality of the preceding provisions of the section, the regulations that might be made under the powers conferred by sub-section 26(1) included regulations for or in relation to, inter alia, requiring persons performing specified functions in relation to the operation or maintenance of aircraft to be the holders of licences or certificates of specified kinds, and providing for the grant, cancellation, suspension or variation of such licences and certificates (paragraph (b) of sub-section 26(2)). The Air Navigation Act 1960 also inserted section 28 into the Principal Act. Sub-sections (1), (2), (3) and (6) of that section provided -
"28.-(1.) Where the regulations include requirements in pursuance of paragraph (b) of sub-section (2.) of section twenty-six of this Act, the regulations shall, subject to the Constitution, also include provisions under which a person aggrieved by a refusal to grant, or by a cancellation, suspension or variation of, a licence or certificate of a kind referred to in those requirements has a right of appeal to a particular court, or has a right of appeal to such one of two or more courts as he selects.
(2) Nothing in the last preceding sub-section -
(a) shall be taken to prevent the making of regulations for or in relation to the conferring on any administrative authority, including a board of review constituted under the regulations, of powers and functions, to be exercised by way of appeal or review, in respect of matters referred to in that sub-section;
(b) shall be taken to require the regulations to give to a person who has elected to have a matter dealt with by an administrative authority having such powers and functions a right to appeal in the same matter to a court; or
(c) applies in relation to a temporary suspension for the purposes of an examination or a suspension for a period not exceeding twenty-eight days pending completion of an investigation.
(3) The regulations may make provision for and in relation to all or any of the following:
(a) investing the Supreme Courts of the States with federal jurisdiction;
(b) conferring jurisdiction upon the Supreme Courts of the Territories of the Commonwealth; and
(c) conferring jurisdiction upon a federal court,
for the purposes of regulations made in pursuance of the preceding provisions of this section.
....
(6) In this section 'court' means a federal court, the Supreme Court of a State or the Supreme Court of a Territory of the Commonwealth."
Sections 26 and 28 of the Air Navigation Act 1920 have been subsequently amended in a number of respects but none of those amendments is relevant for present purposes.
By Statutory Rules 1960, No. 99 the Air Navigation Regulations were amended by inserting therein a substituted Part XV headed "Refusal to Grant, and Suspension and Cancellation of, Licences and Certificates" and consisting of regulations 254 - 269 inclusive. Amendments have since been made to a number of those regulations (both before and after 1 July 1976 - a date the significance of which will later appear) but for the purposes of considering the submissions made on this appeal it is sufficient to refer to the regulations in the form which they at present assume and to regard them as having taken that form at all material times.
Regulations 257, 258 and 259 provide -
"257.(1) Where the Secretary has reason to think that there may exist facts or circumstances that would justify the variation, suspension or cancellation of a licence or certificate on a ground specified in the next succeeding regulation, the Secretary may, by notice in writing served on the holder of the licence or certificate, suspend the licence or certificate for the purpose of an investigation under this regulation.
(2) Where the Secretary suspends a licence or certificate in pursuance of the last preceding sub-regulation, he shall forthwith investigate the matter, and the suspension shall cease upon the completion of the investigation or at the expiration of twenty-eight days from and including the date on which the suspension took effect, whichever is the earlier, but without prejudice to the powers of the Secretary under the next succeeding regulation.
(3) Where -
(a) the Secretary, upon the completion of an investigation under this regulation, gives to the holder of the licence or certificate a notice under sub-regulation 258(3); and
(b) the suspension of the licence or certificate under this regulation had not ceased before the completion of the investigation,
the licence or certificate shall remain suspended during the time specified by the Secretary in that notice as the time within which the holder of the licence or certificate may show cause why the licence or certificate should not be varied, suspended or cancelled under regulation 258.
258.(1) Subject to this regulation, the Secretary may, by notice in writing served on the holder of a licence or certificate, vary, suspend or cancel the licence or certificate where he is satisfied that one or more of the following grounds exists, namely:
(a) that the holder of the licence or certificate has contravened, or failed to comply with, a provision of the Act or these Regulations, including these Regulations as in force by virtue of a law of a State;
(b) that the holder of the licence or certificate fails to satisfy, or to continue to satisfy, any requirement prescribed by, or specified under, these Regulations in relation to the obtaining or holding of such a licence or certificate;
(c) that the holder of the licence or certificate has failed in his duty with respect to any matter affecting the safe or efficient navigation or operation of an aircraft;
(d) that the holder of the licence or certificate is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such a licence or certificate; or
(e) that the holder of the licence or certificate has contravened, or failed to comply with, a direction or instruction with respect to a matter affecting the safe navigation and operation of an aircraft, being a direction or instruction that is contained in Air Navigation Orders.
(2)A notice under the last preceding sub-regulation shall contain full particulars of the facts or circumstances that constituted the ground or grounds for the variation, suspension or cancellation of the licence or certificate, as the case may be.
(3) Before taking action under this regulation to vary, suspend or cancel a licence or certificate, the Secretary shall -
(a) give notice, in writing, to the holder of the licence or certificate of the facts and circumstances that, in the opinion of the Secretary, warrant consideration being given to the variation, suspension or cancellation of the licence or certificate under this regulation; and
(b) allow the holder of the licence or certificate to show cause, within such time as the Secretary specifies in that notice, why the licence or certificate should not be varied, suspended or cancelled under this regulation.
(4)The time specified by the Secretary in the notice under sub-regulation (3) as the time within which the holder of the licence or certificate may show cause why the licence or certificate should not be varied, suspended or cancelled under this regulation shall be a time that is reasonable in all of the circumstances of the particular case.
259.(1) A person aggrieved by -
(a) a refusal of the Secretary to grant a licence or certificate (not being a refusal in pursuance of sub-regulation 329(2)); or
(b) the variation or cancellation of a licence or certificate, or the suspension of a licence or certificate otherwise than under regulation 256 or 257 of these Regulations,
may elect either -
(c) to have the matter submitted for review to a board of review; or
(d) to appeal to a specified court against the decision of the Secretary.
(2) An election under the last preceding sub-regulation shall -
(a) be in writing, signed by the person making the election; and
(b) be lodged with the Secretary within fourteen days after service on him of notification of the decision of the Secretary.
(3) Where a person elects under this regulation to have the matter submitted for review to a board of review, the Secretary shall request the Minister to take the necessary steps for constitution of a board of review and the Minister shall take those steps forthwith.
(4) An election to have the matter submitted for review to a board of review shall be accompanied by a deposit of Sixty dollars.
(5) The court to be specified in an election by a person under this regulation shall be selected by him from among the following Courts:
(a) the Commonwealth Industrial Court;
(b) the Supreme Court of the State or Territory of the Commonwealth in which he is residing for the time being; or
(c) if that person and the Secretary have agreed in writing that the Supreme Court of another State or Territory of the Commonwealth would be a convenient Court, that Supreme Court."
For the purpose of those regulations a "licence" includes a commercial pilot licence, being a licence under Part V of the regulations (see the definition of "licence" in regulation 254). The references to "the Secretary" may, since the creation of the office, be taken as references to the Secretary to the Department of Aviation. Before that office was created the references were to the Secretary to the Department of Transport.
Other regulations in Part XV provide for the constitution and powers of boards of review (regulations 260 - 263) and for the jurisdiction of the courts to hear and determine the appeals for which regulation 259 provides (regulation 264).
Regulation 265 provides -
"265. A statement or disclosure made by a witness to a court or to a board of review under this Part is not admissible in evidence against him in civil or criminal proceedings in a court except in a prosecution for giving false testimony in proceedings under this Part."
The argument for the appellant relies on certain provisions of the Administrative Appeals Tribunal Act 1975 (Act No. 91 of 1975). That Act, which came into operation on 1 July 1976, established the Administrative Appeals Tribunal with power to hear and determine applications for the review of decisions made in the exercise of powers conferred by an enactment, an expression defined in sub-section 3(1). Under the Act the Tribunal's jurisdiction depended upon an enactment providing for the making of applications to the Tribunal, sub-section 25(4) providing that the Tribunal had power to review any decision in respect of which application was made to it under any enactment. It was further provided in sub-section 26(2) that a reference in sub-section 25(4) to an enactment included a reference to the Schedule to the Administrative Appeals Tribunal Act 1975. Sub-section 26(1) provided -
"26.(1) The provisions of the Schedule have effect according to their tenor notwithstanding anything contained in any other provision of this Act (other than sub-section 25(2)) or in any provision of any other enactment in force at the commencement of this Act."
Part III of the Schedule was in the following terms -
"3.(1) Applications may be made to the Tribunal for review of decisions by the Secretary to the Department of Transport -
(a) refusing to grant a licence or certificate referred to in regulation 254 of the Air Navigation Regulations; or
(b) varying or cancelling such a licence or certificate or suspending such a licence or certificate otherwise than under regulation 256 or 257 of those Regulations.
(2) A person is not entitled to -
(a) have a matter to which a decision relates submitted for review to a board of review; or
(b) appeal against a decision,
in accordance with regulation 259 of the Air Navigation Regulations if an application may be made to the Tribunal in respect of the decision by virtue of sub-clause (1)."
By virtue of sub-clause 1(1) of Part I of the Schedule, the Schedule was to apply only in respect of decisions made after the commencement of the Administrative Appeals Tribunal Act 1975 (viz. 1 July 1976). Sub-clause 1(4) of Part I of the Schedule provided -
"(4) This Schedule applies to a decision made by a person to whom the power to make the decision has been delegated in like manner as it would have applied if the decision had been made by the person who delegated that power."
The Administrative Appeals Tribunal Act 1975 (Act No. 91 of 1975) has since been amended but it is unnecessary to refer to those amendments. Provisions to the same effect as those set out above have remained in force at all times material to this appeal.
It is not suggested that regulation 258 of the Air Navigation Regulations was other than a valid piece of subordinate legislation when it was promulgated as part of Statutory Rules 1960, No. 99 or that it ceased to be valid at any time prior to 1 July 1976 when the Administrative Appeals Tribunal Act 1975 came into operation. It is submitted, however, that upon the coming into operation of that Act with its provisions for applications to be made to the Administrative Appeals Tribunal from decisions of the Secretary to the Department of Transport under, inter alia, regulation 258 of the Air Navigation Regulations and for excluding recourse to the review and appeal procedures provided by regulation 259, regulation 258 ceased to be a valid regulation. The argument postulates that the effect of the Administrative Appeals Tribunal Act 1975 was to delete the provisions of regulation 259 inserted in order to comply with the mandatory requirements of sub-section 28(1) of the Air Navigation Act 1920 and thereby regulation 258 ceased to be a regulation falling within the regulation making power conferred by that Act.
In our opinion the argument is misconceived. The obvious purpose of the legislature in enacting section 26 and Part III of the Schedule of the Administrative Appeals Tribunal Act 1975 was to substitute, in respect of decisions made after the date of commencement of the Act, a right of review by the Administrative Appeals Tribunal for the rights of review and appeal provided for in regulation 259 of the Air Navigation Regulations and to give paramountcy to the provisions of the Administrative Appeals Tribunal Act 1975 over any provisions in the existing law that might militate against that result being achieved. Looked at in that light, it is impossible to attribute to the legislature an intention that regulation 258 should be deprived of validity and we are unable to construe the Administrative Appeals Tribunal Act 1975 as having that, quite clearly unintended, consequence.
It is, in our view, a misconception to treat the Administrative Appeals Tribunal Act 1975 as having no effect by way of modification of section 28 of the Air Navigation Act 1920. To the extent to which section 28 would stand in the way of giving effect to the obvious legislative purpose to which we have referred it must be regarded as no longer having operative force. Acceptance of the appellant's argument would have the consequence that, after the commencement of the Administrative Appeals Tribunal Act 1975, there was no power to vary, suspend or cancel a licence or certificate of the kind referred to in regulation 258 of the Air Navigation Regulations. Unless the construction of the provisions which leads to that consequence is compelled by clear and unambiguous language, an alternative construction, if reasonably open, should be adopted. Not only do we not find such clear and unambiguous language as compels the construction contended for by the appellant, but the language of the Administrative Appeals Tribunal Act 1975 is, in our opinion, consistent only with the continuance in force, according to its tenor, of regulation 258. We reject the appellant's submission.
It is, therefore, necessary to consider the submissions put to the Court on behalf of the appellant on the basis that the argument as to the invalidity of regulation 258 of the Air Navigation Regulations is rejected. It was submitted that sub-regulation (3) of that regulation, read in the light of the principles of the common law concerning natural justice, requires that, where the question of varying, suspending or cancelling a licence or certificate is under consideration, the holder of the licence must be afforded a true opportunity to show cause why the licence or certificate should not be varied, suspended or cancelled. So much may be accepted. It is then said that, if criminal proceedings have been, or may be, instituted against the holder of the licence or certificate, the holder is faced with a dilemma. If he seeks to show cause on the merits, he runs the risk that he may provide material which may assist the prosecution of the criminal charges. On the other hand, if he refrains from showing cause on the merits, he runs the risk that his licence or certificate will be varied, suspended or cancelled without the decision-maker having considered what he may wish to say in his defence. To place the holder of a licence or certificate in such a position is, it was submitted, to give him no true opportunity to show cause.
In this context attention was directed to the effect which the provisions of the Administrative Appeals Tribunal Act 1975 substituting review by the Administrative Appeals Tribunal for the procedures previously available under regulation 259 of the Air Navigation Regulations had in depriving the holder of a licence or certificate of the protection which regulation 265 affords to a statement or disclosure made by a witness to a court or to a board of review under Part XV of those regulations. Under regulation 265, the text of which has already been set out, such a statement or disclosure is not admissible against the witness in civil or criminal proceedings in a court except in a prosecution for giving false testimony in proceedings under Part XV. That regulation has no application to proceedings before the Administrative Appeals Tribunal and there is no corresponding provision in respect of such proceedings. Counsel for the appellant conceded that, under the provisions in force prior to the commencement of the Administrative Appeals Tribunal Act 1975, there was no limitation upon the use which might be made in civil or criminal proceedings of a statement or disclosure made by the holder of a licence or certificate in showing cause why the power conferred by regulation 258 should not be exercised. He said, however, that the holder of the licence or certificate could, in such circumstances, refrain from showing cause and, if a decision varying, suspending or cancelling his licence or certificate were made, he could have the question reviewed by a court or a board of review pursuant to regulation 259 with the benefit in those proceedings of the protection afforded by regulation 265.
We are unable to agree that regulation 258 does not give an effective opportunity to show cause. The regulations clearly envisage that the conduct of the holder of a licence or certificate may be such as to warrant both the institution of criminal proceedings and the taking of action to protect the public interest in the safety of air navigation by varying, suspending or cancelling the licence or certificate. No doubt the more serious the allegations against the holder of the licence or certificate the more likely it is that action will be taken both to prosecute and to vary, suspend or cancel the licence or certificate. To accept the appellant's argument would, as counsel frankly acknowledged, require the regulations to be construed so as to oblige those administering the regulations to make a choice, in the circumstances of each particular case, whether to prosecute or to take action to vary, suspend or cancel the licence or certificate. Such a construction of the regulations is not, in our opinion, reasonably open.
Faced with the situation where criminal proceedings have been, or may be, taken against him, the holder of a licence or certificate may, as the appellant did, request that the time within which to show cause be extended until after the conclusion of the criminal proceedings. In most, if not all, cases it would be reasonable for that request to be granted, as was done in this case. But the evident intention of the regulations to protect the public interest in the safety of air navigation may make it imperative, in the circumstances of a particular case, that the holder of the licence or certificate not be in a position to enjoy the privileges so granted pending the determination of the question whether the licence or certificate should be varied, suspended or cancelled under regulation 258. The appellant's complaint is, in substance, that the delays in the criminal process are such that, to have taken advantage of the extension of time to show cause why his licence should not be varied, suspended or cancelled until the conclusion of the criminal proceedings pending against him with the consequent continuation during that period of the interim suspension of his licence, would involve for him an unacceptable delay in a decision being taken under regulation 258 in relation to his licence. It is obviously desirable that, in a case where a person's livelihood may be at stake, the criminal proceedings should be heard as expeditiously as possible but the fact that delay, even a lengthy delay, is likely to occur in the hearing of the criminal proceedings is not a reason for concluding that the appellant was deprived of a proper opportunity to show cause why his licence should not be varied, suspended or cancelled.
Nor are we able to accept that the effect of removing such protection as regulation 265 previously afforded to the holder of a licence or certificate has the consequence for which the appellant contended. The appellant's argument involved the proposition that the legislature, having established a system for the review of decisions varying, suspending or cancelling a licence or certificate which had as one of its elements the protection of statements or disclosures made in the course of the review process, may not, without infringing the principles of natural justice, substitute another review system which does not contain that element. The argument is, we think, untenable. The extent to which the principles of natural justice apply under the substituted review system must depend upon the proper meaning and effect of the relevant legislative provisions. Unless a consideration of the provisions previously in force would, according to the ordinary principles of statutory construction, be of some assistance in reaching a conclusion as to the proper meaning and effect of the substituted provisions, the earlier provisions can throw no light on the later provisions which must be given effect according to their tenor.
It was also submitted for the appellant that the decision of 2 December 1983 was vitiated by reason of a suspicion, reasonably entertained, of bias in the decision-maker. Attention was directed to the requirement in sub-regulation 317(1) of the Air Navigation Regulations that the institution of proceedings for the commitment of a person for trial on indictment for an offence against the regulations be with the consent in writing of the Secretary to the Department of Aviation, to the consent given by the Secretary on 1 June 1983 to the institution of such proceedings against the appellant for offences against regulations 44(1), 124(1), 124(2) and 243 and to the giving by the Secretary of instructions to the Commonwealth Crown Solicitor that such proceedings be instituted. By giving such consent and instructions, it was said, the Secretary had donned the mantle of a prosecutor. For the Secretary subsequently to determine, for the purposes of regulation 258, that the appellant had contravened or failed to comply with the provisions of those regulations was to give rise to a reasonable suspicion of bias. It involved, so it was submitted, the Secretary acting as both prosecutor and judge in the same cause.
The short answer to this submission is that the regulations in clear and unambiguous language confer upon the Secretary power, if not the duty, in appropriate circumstances both to vary, suspend or cancel a licence or certificate for a contravention or a failure to comply with a provision of the regulations (regulation 258) and to consent to the institution of committal proceedings in respect of that contravention or failure (sub-regulation 317(1)). In the face of such express provision there is no basis for construing the regulations so as to preclude the Secretary from exercising the power to vary, suspend or cancel a licence or certificate by reason only of the fact that he had previously given his consent to the institution of committal proceedings against the holder of that licence or certificate. In any event, in the circumstances of this case, the decision to suspend the appellant's licence was taken by Mr Thompson under his delegated power and not by the Secretary.
In our opinion no reasonable ground has been shown for suspicion of bias on the part of the decision-maker.
Nothing that has been put to us on behalf of the appellant establishes that the learned primary judge fell into error in reaching the conclusion that the application for an order of review of the decision of 2 December 1983 suspending the appellant's licence should be dismissed. In those circumstances it is unnecessary to consider the arguments which the appellant sought to advance that what were referred to as the interim suspensions of the appellant's licence (other than that conveyed to the appellant by the letter dated 10 August 1982) were invalid.
In the result the appeal is dismissed with costs.
We were invited by counsel for the respondents to make an order for costs in respect of the proceedings before the learned primary judge. We were informed that his Honour did not deal with the question of costs but, when delivering judgment, invited the parties to consider his reasons for judgment before the question of costs was considered. No application for costs was subsequently made to the learned primary judge and the respondents have not filed a notice of cross appeal. In the circumstances we are not prepared to act upon counsel's invitation.
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