Roberts, Michael John v Secretary to the Department of Aviation
[1984] FCA 228
•09 AUGUST 1984
Re: MICHAEL JOHN ROBERTS
And: THE SECRETARY TO THE DEPARTMENT OF AVIATION
No. NSW G 73 of 1984
Administrative Decisions (Judicial Review) Act - Aviation
6 ALD 450 / 2 FCR 304
COURT
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
St. John J.(1)
CATCHWORDS
Administrative Decisions (Judicial Review) Act - suspension of pilots licence pursuant to Air Navigation Regulations - notice to show cause - whether notice consistent with rules of natural justice when no protection against self-incrimination afforded - effect of Administrative Appeals Tribunal Act and Schedules on Air Navigation Act and regulations - regulation-making power relating to suspension of licence conditional on right to appeal being provided - whether implied amendment of Air Navigation Act by Administrative Appeals Tribunal Act.
Administrative Decisions (Judicial Review) Act 1977
Administrative Appeals Tribunal Act 1975
Air Navigation Act 1920
Air Navigation Regulations
Aviation - Regulation of air navigation - Licensing of pilots - Revocation of licence - Right of appeal under Air Navigation Act - Regulations conditional on right of appeal - Implied amendment of right of appeal by Administrative Appeals Tribunal Act - Removal of protection against self-incrimination in review proceedings - Air Navigation Act 1920 (Cth), s. 28 - Air Navigation Regulations 258, 259, 265 - Administrative Appeals Tribunal Act 1975 (Cth), s. 26, Sched. 1.
HEADNOTE
The Air Navigation Regulations (ANR) as framed before the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) provided an option to a licensee who had suffered a suspension of his licence by reason of the operation of ANR 258 "to have the matter submitted to a board of review: or to appeal to a specified court . . ." ANR 259 thereby complying with the Air Navigation Act 1920 (Cth), s. 28. Evidence in the review proceedings was rendered inadmissible against the licensee in civil or criminal proceedings by ANR 265.
Held: that the AAT Act s. 26 abrogated the right of review, formerly provided by the Air Navigation Act 1920 (Cth), s. 259, by a board of review of a decision made pursuant to Air Navigation Regulations 258.
HEARING
Sydney, 1984, June 4, 5; August 9. #DATE 9:8:1984
APPLICATION.
Application to review, under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) a decision to suspend a pilot's licence pursuant to Air Navigation Regulations.
C. Gee, for the applicant.
J. J. Steele, for the respondent.
Solicitors for the applicant: McDonel Moffitt Dowling Tayler.
Solicitor for the respondent: Australian Government Solicitor.
B.A.G.
ORDER
The application for review is dismissed.
The declarations sought are refused.
Orders accordingly.
JUDGE1
On 7 August 1982 the applicant, Michael John Roberts, was the pilot of a helicopter which crashed resulting in the death of three passengers. He seeks review of a decision suspending his licence to fly fixed-wing aircraft and declarations of invalidity of other decisions suspending licences to fly fixed-wing and helicopter aircraft.
His commercial pilots licence and helicopter licence were suspended by notice pursuant to Air Navigation Regulation ("A.N.R.") 257 for a period of twenty-eight days or until an investigation was completed within that period. By a letter dated 3 September 1982, the Delegate of the Secretary to the Department of Aviation ("the Department") wrote to the applicant stating that the facts and circumstances of the accident were such as to warrant consideration of variation or suspension of the applicant's said licences. That letter recited various allegations of fact about the crash which were stated to be contraventions of various A.N.Rs. The applicant was invited to show cause why his licences should not be varied or suspended. The letter concluded with a statement to the effect that the previous suspension of the licenses was continued by virtue of A.N.R. 257(3).
On 23 September 1982 the applicant was charged by State police on three counts of manslaughter. By a letter dated 11 October 1982 the Delegate of the Secretary to the Department extended the time during which the applicant could show cause to 3 March 1983 or until the result of the charges was known, whichever was the earlier. On 31 October 1982 the licenses of the applicant expired by effluxion of time. On 2 March 1983 the manslaughter charges were dismissed. On 28 April 1983 the applicant wrote to the Department asking for "...assurances that my answers (in showing cause) will not be used in any further legal proceedings that may be contemplated by the Department". The Regional Director replied to the effect that such assurances would not be given and that the Crown Solicitor would be instructed to prepare informations alleging breaches of A.N.Rs. by the applicant and that a request for extension of time to show cause until those proceedings were concluded could be made.
In July 1983 the applicant sought renewal of the expired commercial pilots licence and such renewal was granted. On 13 July 1983 a Departmental officer wrote purporting to suspend that licence pending an investigation. By a letter dated 28 July 1983 the Department repeated in large part what was stated in the letter dated 3 September 1982 and informed the applicant that the suspension remained in force until the "...expiration of the time within which you may show cause..." pursuant to A.N.R. 258. On 2 September 1983 the applicant's solicitors were informed by the Department that the "show cause" period was extended to the conclusion of the proceedings referred to in the letter of 27 May 1983. Such proceedings resulted in the applicant being committed for trial on some charges. The trial is in for mention only at the next sittings of the District Court of New South Wales at Cooma. A hearing is apparently unlikely during those sittings.
By a letter dated 10 November 1983 the applicant's solicitors made the following points to the Secretary to the Department:-
(1) That they were instructed to answer the letter
of 28th July 1983 (which asked the applicant to show cause).
(2) That the Secretary had consented to the
charges referred to in the Department's letter of 28 July 1983.
(3) Because of the consent referred to in (2)
above the Secretary could not suspend or cancel the licence as such action would presume guilt which the Secretary could not do.
On 2 December 1983 the Secretary wrote to the applicant stating that the applicant's commercial pilots licence to fly fixed-wing aircraft was suspended pursuant to A.N.R. 258 1(a) and (c) from and including 29 November 1983 to and including 29 November 1985. The Secretary expressed himself as satisfied that certain A.N.Rs. had been contravened.
On 1 September 1983 a solicitor for the applicant had a telephone conversation with an officer of the Department in which that officer said that the suspension of the renewed commercial pilots licence was necessary because the Department had no grounds to refuse the licence renewal application.
The applicant seeks:-
(1) an order that the decision to suspend made 2
December 1983 be quashed pursuant to the Administrative Decisions (Judicial Review) Act 1977; and
(2) a declaration that all interim or other
suspensions of the commercial pilots licence from 3 September 1982 were invalid.
The primary submission by counsel for the applicant is that the presumption that the rules of natural justice apply to the decision-making process to suspend has not been displaced upon a proper interpretation of the Air Navigation Act 1920 ("the A.N. Act") and the A.N.Rs. made thereunder.
The A.N. Act provides in S.3A that the ratification, on behalf of Australia, of the Chicago Convention on International Civil Aviation, is approved. The terms of that convention appear in Schedule 1 to the A.N. Act. Its expressed objects include the safe and orderly development of civil aviation. The regulation-making power in the A.N. Act, S.26, specifically includes safety considerations (S.26(2)(h)). The A.N.Rs. place great emphasis upon safety considerations. The relevant A.N.Rs. for present purposes are:-
"Suspension of licence or certificate pending investigation
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."
"Variation, suspension or cancellation of licence or certificate
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 exist, 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."
"Appeal to board of review or court
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."
"Institution of proceedings
317.(1)Proceedings for the commitment of a person for trial on indictment for an offence against these Regulations shall not be instituted except with the consent in writing of the Secretary.
(2)Proceedings for the summary prosecution of an offence against these Regulations shall not be instituted except with the consent of the Secretary or a person authorized by the Secretary, by writing under his hand, to give such consents."
The fact that the Secretary both suspended pursuant to A.N.R. 257 and A.N.R. 258 and consented to criminal proceedings for breach of certain A.N.Rs. is relied upon by the applicant to submit that the Secretary is both prosecutor and judge in the same cause, thereby breaching one of the principles of natural justice. The answer is, to my view, simple. If he is a prosecutor in the relevant sense by virtue of the duty imposed upon him by A.N.R. 317 he has also the duty to suspend in appropriate cases. Assuming that the Secretary is the prosecutor for the purposes of that rule, the legislature has clearly expressed an intention that that rule of natural justice, in those circumstances, does not apply.
Applicant's counsel submitted that because showing cause would involve self-incrimination the offer to him to show cause pursuant to A.N.R. 257 and A.N.R. 258 was contrary to the audi alteram partem rule of natural justice and was of no value and therefore a breach of that rule. That submission, in my view, does not have merit. If the opportunity to show cause is declined, as it was on occasions on the facts in this case, in order that exposure to self-incriminating admissions be avoided, it cannot be said that the right to show cause did not exist. I know of no authority, nor was any referred to by counsel, which would go any way to support the submission.
However, it is notable that the A.N.Rs. as framed before the Administrative Appeals Tribunal Act 1975 ("the A.A.T. Act") provided for an option to a licensee who had suffered suspension by operation of A.N.R. 258 "to have the matter submitted to a board of review; or to appeal to a specified court..."; A.N.R. 259. By A.N.R. 265, any statement by a witness to a court or board of review was made inadmissible in evidence against him in civil or criminal proceedings. From this it is clear that the legislature had provided a solution for such a dilemma as the applicant found himself in in this case. Commercial pilot licences are important property rights; often an only means of livelihood.
The combined effect of S.26 and Schedule 1 of the A.A.T. Act is to abrogate the right of review by a board of review of a decision made pursuant to A.N.R. 258. The A.A.T. Act contains no provision for exclusion of use of evidence such as in A.N.R. 265. Section 28 of the the A.N. Act provides that when regulations are made relating to issue of licenses there should be provision for appeal on, inter alia, suspension to a particular court or one of two courts.
Counsel for the applicant has submitted that A.N.R. 258 is ultra vires and cannot be relied upon to suspend a licence. The argument in support appears to be that A.N.R. 258 cannot stand upon its own without the addition of the right of appeal to a court provided for in S.28. The Administrative Appeals Tribunal is not a court. The regulation-making power is subject to a condition and, if that condition is not fulfilled there is no power unless the condition is observed, the argument continues.
It could well be that there was a legislative oversight in not providing for review in a situation where the licensee would not be exposed to use in criminal charges against him of the evidence he gave. The inordinate delay in having criminal charges tried in New South Wales means that a licensee may have to wait years to have his entitlements to revocation of a suspension of a licence determined.
Section 28 of the A.N. Act is couched in the alternative; an appeal is to be provided to a particular court or to such one of two or more courts as the appellant selects. The effect of the A.A.T. Act on A.N.R. 264 is to be found in the words of S.26(1) and Schedule 1 of that Act. That section is in the following terms:-
"The provisions of Schedule 1 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."
"Enactment" includes regulations; S.3 of the A.A.T. Act. The relevant words of Schedule 1 to that Act are:-
"PART III--AIR NAVIGATION REGULATIONS
3. (1)Applications may be made to the Tribunal for review of decisions by the Secretary to the Department of Transport--
... ...
(b) ...suspending such a licence or certificate otherwise than under regulation 256 or 257 of those Regulations.
3. (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)."
The appeal referred to in A.N.R. 259 is "to appeal to a specified court against the decision of the Secretary". Under the heading "Jurisdiction of Courts to hear and determine appeals", A.N.R. 264(1) provides that "The Supreme Court of each State is invested with federal jurisdiction, and jurisdiction is conferred on the Commonwealth Industrial Court ... to hear and determine appeals under regulation 259 of these Regulations".
The problem posed is that if the A.A.T. Act effectively denies the right of appeal to a court and substitutes an appeal to the Tribunal what is the status of regulations made pursuant to a regulation-making power which is conditional as to the content of the regulation and the condition has not been complied with? If the A.A.T. Act abolishes appeals to all courts there remains no specified court. A.N.R. 258 provides for, inter alia, suspension of a licence. If the right of appeal to a court is removed, is that regulation still valid?
The answer is to be found in the words of S.26 of the A.A.T. Act. Although I have not found the problem easy of resolution, the presence of specific reference to the A.N.Rs. in the Schedule and the exclusion of A.N.Rs. 256 and 257, both of which deal with temporary suspensions, and also A.N.R. 259, which provides for appeals in respect to suspensions pursuant to A.N.R. 258, are indications that the legislature appreciated the effect of Schedule 1 in relation to appeals. The absence of any specific reference to S.28 of the A.N. Act provokes the inference it was overlooked. The absence of any reference in the Schedule to the A.N.R. 265, an important corollary to a right of appeal is not referred to or provided for in the A.A.T. Act. This A.N.R. 265 is left standing with nothing to which it is applicable left.
Courts have always been careful to confine delegated legislation within the limits set by the legislature. To repeal regulations and thereby impliedly amend the regulation-making power without specific mention tends to induce the belief that the legislature has overlooked the serious consequences of its action. However, the words in S.26 of the A.A.T. Act are in the broadest terms and are designed as a blanket amendment of all previous legislation, primary or delegated. I therefore, on balance, come to the view that there was a legislative intention to impliedly amend S.28 of the A.N. Act despite its drastic consequences.
The application for review is dismissed and the declarations sought are refused.
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