Ronald F McInerney v Civil Aviation Authority
[1992] FCA 258
•24 APRIL 1992
Re: RONALD F. McINERNEY and NEWMAN AIR CHARTER PTY LTD
And: CIVIL AVIATION AUTHORITY
No. WA G99 of 1991
FED No. 258
Administrative Law
(1992) 27 ALD 201 (extract)
COURT
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
French J.(1)
CATCHWORDS
Administrative Law - ultra vires - authority of officer to exercise powers of statutory authority - civil aviation - Air Operator's Certificate - Civil Aviation Orders - conditions of certificate - continuing approval of person nominated as Chief Pilot - approval cancelled - whether Authority empowered to cancel approval - de facto cancellation or suspension of Air Operator's Certificate - deprivation of right of review on merits by Administrative Appeals Tribunal - whether intended by Parliament - whether Civil Aviation Order authorising cancellation of approval within power - whether officer cancelling approval authorised to do so - no relevant delegation - act of officer as act of Authority.
Civil Aviation Act 1988 s.27, s.94, s.98, s.100
Administrative Appeals Tribunal Act 1975
Civil Aviation Amendment Act 1990 (No. 25 of 1990)
Air Navigation Act 1920
Civil Aviation Orders
Re Surf Air and Civil Aviation Authority (1991) 22 ALD 118
Carltona Ltd v.Commissioners of Works (1943) 2 All ER 560
R v. Skinner (1968) 2 QB 700
Re Reference Under Section 11 of Ombudsman Act 1976 For An Advisory Opinion; Ex parte Director-General of Social Services (1979) 2 ALD 86
O'Reilly v. The Commissioners of the State Bank of Victoria (1983) 153 CLR 1
HEARING
PERTH
#DATE 24:4:1992
Counsel for the Applicant: Mr C.L.J. Miocevich
Solicitors for the Applicant: Duckham Thorpe
Counsel for the Respondent: Mr S. Owen-Conway QC and Ms. I. Petersen
Solicitors for the Respondent: Australian Government Solicitor
ORDER
1. The application is dismissed.
2. The applicants pay the respondent's costs of the application.
Note: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
Introduction
On 27 July 1991, the Assistant General Manager, Safety Regulation for the Civil Aviation Authority in Western Australia, cancelled the Authority's Approval of Mr Ronald McInerney as the Chief Pilot for Newman Air Charter Pty Ltd. As a result, Newman Air Charter is not able to carry on its charter and aerial work under an Air Operator's Certificate until a new Chief Pilot, approved by the Authority, is appointed. Mr McInerney seeks judicial review of that decision. He does so on the basis that it was not authorised by the Act and alternatively on the basis that the person who made the decision had no authority to do so.
Factual Background
Ronald Francis McInerney is the Managing Director of Newman Air Charter Pty Ltd. On 6 February 1990, the Civil Aviation Authority through Roy Edward Scaife, its Assistant General Manager, Safety Regulation for Western Australia, issued to the company an Air Operator's Certificate pursuant to s.27 of the Civil Aviation Act 1988. By the certificate, Mr Scaife who executed it as a delegate of the Civil Aviation Authority, authorised the use by the company of aircraft for charter purposes and other specified aerial work. The Certificate was expressed to be subject to a number of conditions including the following:
"1. In conducting operations under the authority of this Certificate, the holder is to comply with the provisions of Civil Aviation Orders, sections 82.0 and 82.1. .
.
.
3. The Certificate holder is to appoint a person who is suitably qualified and acceptable to the authority to act as Chief Pilot and who is responsible for all operations in accordance with Civil Aviation Orders, Part 82. Should the person occupying the position of Chief Pilot be no longer employed by the Certificate Holder, or be no longer acceptable to the Authority to act as the Chief Pilot, all charter and aerial work operations are to cease with the termination of his/her employment or the withdrawal of the Authority's approval. .
.
.
13. The Certificate Holder and the aircraft used in those charter and aerial work operations shall comply with the provisions of the Civil Aviation Act 1988 and the Civil Aviation Regulations."
The certificate followed the list of conditions with the words:
"Subject to the Civil Aviation Act and Regulations, this Certificate remains valid until suspended, varied or cancelled by the Civil Aviation Authority."
That Certificate replaced a previous Certificate which had issued on 13 September 1989. At the time of the issue of the Certificate of 6 February 1990, Mr McInerney was approved as Chief Pilot of Newman Air Charter by the Civil Aviation Authority. However, that approval had a chequered history. It had been "suspended" by Mr Scaife on 18 July 1989, the suspension "stayed" by the Administrative Appeals Tribunal from 19 July 1989 and the approval "formally reinstated" on 29 September 1989. The precise legal significance of this history which was described by Mr Scaife in his affidavit, was not elucidated. Nor is it necessary to consider it further for the purposes of this case. What is of significance is that on 29 September 1989, Mr Scaife had written to Mr McInerney approving him as Chief Pilot in the following terms:
"Mr Ronald Frank McInerney holder of Commercial Pilot Licence No. 179156 is hereby approved as the Chief Pilot of Newman Air Charter Pty Ltd.
2. The responsibilities specified for you as chief pilot are those detailed in paragraphs 1.1, 1.2 and 1.3 of appendix 1 of Civil Aviation Order 82.0. This approval is granted subject to providing me with your written acceptance of the responsibilities of a chief pilot as stated above. Also your written acceptance of the conditions detailed in Newman Air Charter's Air Operators Certificate No. WA 277, dated 13 September 1989.
3. You are also granted approval to:
(a) conduct twin engine training and checking of Newman Air Charter pilots on the understanding that you will provide me with details of any planned endorsement flights to enable an officer of this Authority to test the product, if possible, within a reasonable time;
(b) operate to Koolan and Cockatoo Islands as pilot in command;
(c) train and approve Newman Air Charter pilots to operate to Koolan and Cockatoo Islands.
4. The approvals at 3(a) (b) and (c) above are granted subject to your written acknowledgement to me of the need to take particular care when exercising the privileges granted by the approvals. The need to take particular care is due to the Examiners of Airmen involved having assessed your performance as being marginal."
Mr McInerney wrote back on 30 November 1989 accepting the responsibilities of Chief Pilot of Newman Air Charter and the conditions endorsed on the then current Air Operator's Certificate WA 277. That certificate was replaced by the certificate dated 6 February 1990 to which reference has already been made. The approval of Mr McInerney as Chief Pilot reissued on 16 January 1991. There is nothing to suggest that the conditions on which that approval was issued differed in any material respect from those governing the approval issued on 29 September 1989. Problems subsequently arose between Newman Air Charter and the Civil Aviation Authority. On 15 May 1991, Mr Scaife wrote to Mr McInerney setting out what were said to be deficiencies in the operation of the company discovered during surveillance by officers of the Authority. The letter required rectification of the deficiencies and advised Mr McInerney that an Air Service Organisation inspection was scheduled for 11 June 1991 to ensure this had been done.
On 11 July 1991, Mr Scaife wrote to Mr McInerney noting that at the inspection of 11 June it had discovered that not all deficiencies had been rectified. Further, Mr McInerney's subsequent promise to forward evidence to Mr Scaife's office of steps taken towards rectification not been fulfilled. The letter of 11 July went on:
"As a result of the surveillance leading up to the abovementioned inspection and your subsequent failure to expediently rectify those deficiencies, facts and circumstances exist which lead me to the opinion that your performance as Chief Pilot is no longer of an acceptable standard. The evidence I have before me warrants consideration being given to suspension or cancellation of your Chief Pilot Approval under the provisions of CAO 82.0."
Various facts and circumstances relating to Newman Air Charter's operations supporting that conclusion were set out. The letter went on:
"There may be facts and circumstances which you wish to place before me in refutation or explanation of these matters. Accordingly, before any action is taken to suspend or cancel your approval as Chief Pilot of Newman Air Charter I hereby offer you the opportunity to show cause by (sic) why this action should not be taken. Should a written reply not be received by close of business on 22 July 1991 I shall be obliged to reach a decision based upon the evidence I have available to me."
On 19 July, Mr McInerney replied in writing saying that he had not been able to find the letter of 15 May 1991 and setting out what he described as answers to Mr Scaife's questions.
On 29 July 1991, Mr Scaife wrote to Mr McInerney referring to the previous correspondence and advising him in the following terms:
"Following a review of all the facts and circumstances in this case including your reply, I have decided that your performance as Chief Pilot of Newman Air Charter is no longer of an acceptable standard. The evidence available before me shows that you have failed to satisfactorily exercise your responsibility as Chief Pilot for the maintenance of the operational standards of Newman Air Charter and have seriously failed to properly exercise the same responsibility for supervision of operations at your Broome base. Accordingly I have decided to cancel your approval as Chief Pilot of Newman Air Charter."
The letter set out various findings on material questions of fact relevant to the grounds of cancellation. At paras.9 and 10 it said:
"9. I therefore conclude that you have failed in your responsibilities as a Chief Pilot as defined in CAO 82.0 and that your performance is not of an acceptable standard. I also conclude from your lack of co-operation and failure to take timely action to correct identified deficiencies that a period of suspension would not be appropriate. Consequently I hereby cancel your approval as Chief Pilot of Newman Air Charter issued on 16 January 1991 with effect from and including 1 August 1991.
10. I remind you as the holder of Air Operators Certificate No. WA 277 that operations of Newman Air Charter from any base, including Newman and Broome, after 31 July 1991 without a Chief Pilot will be illegal and a breach of section 27 of the Civil Aviation Act."
Mr McInerney and Newman Air Charter filed an application under the Administrative Decisions (Judicial Review) Act 1975 on 17 September 1991 seeking an order of review of the decision to cancel the Authority's approval of Mr McInerney as Chief Pilot. A re-amended application was filed on 5 February 1992.
The Grounds of the Application
The re-amended application relied upon three grounds of review. The second, by which it was alleged that there had been a breach of natural justice in the making of the decision under review, was abandoned at the hearing. The other two grounds were in the following terms:
1. The Civil Aviation Authority does not have the power under the Civil Aviation Act or Regulations to make Civil Aviation Orders which give the Civil Aviation Authority power and authority to make a Decision:
(a) as to whether the conditions of an Air Operators Certificate have been met and/or
(b) to cancel a Chief Pilot's Approval once given. .
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3. Mr Scaife did not have the power to cancel Mr McInerney's Chief Pilot's Approval, as the power to carry out such an act was not delegated to Mr Scaife as required by Section 94 of the Civil Aviation Act.
An objection to competency filed on 1 October 1991 was not proceeded with at the hearing. The hearing was entirely on the papers, including an affidavit sworn by Mr Scaife, which were received in evidence in book form.
Statutory Framework
The Civil Aviation Act 1988 was enacted principally to establish the Civil Aviation Authority to carry out many of the functions discharged by the Department of Aviation now part of the Department of Transport and Communications. The Act came into operation on 15 June 1988 save for ss.17-32, 98, 99 and 100-103 which commenced operation on 1 July 1988. The Act creates the Civil Aviation Authority (s.8) whose functions include the Safety Regulation of Civil Air Operations in Australian Territory (s.9(1)(a)). They also extend to implementing, by means of certificates, licences, registration and permits, standards relating to the use and operation of aircraft and related equipment, aerodromes, air route and airway facilities and other matters (s.10). Subject to the Act, the Authority is generally empowered to do all things necessary or convenient to be done for or in connection with the performance of its functions (s.13(1)).
Part III of the Act headed "REGULATION OF CIVIL AVIATION" includes s.27 which provides for the issue of Air Operators' Certificates in the following terms:
"27(1) The Authority may issue Air Operators' Certificates for the purposes of its functions.
(2) Except as authorised by a Certificate:
(a) an aircraft shall not fly into or out of Australian territory;
(b) an aircraft shall not operate in Australian territory; and
(c) an Australian aircraft shall not operate outside Australian territory.
(3) A Certificate has effect subject to conditions specified by the Authority.
(4) The Authority may, at any time, by notice in writing served on the holder, vary the conditions of a certificate or impose further conditions.
(5) If a condition of a Certificate is breached, then, while the breach continues, the Certificate does not authorise any operation to which the condition relates.
(6) Where a condition of a Certificate has been breached, then, whether or not the breach is still continuing, the Authority may, by notice in writing served on the holder, suspend or cancel the Certificate or any specified authorisation contained in the Certificate.
(7) The term of a Certificate shall be as determined by the Authority.
(8) A Certificate is not transferable.
(9) Sub-section (2) applies only to the flying or operation of an aircraft for such commercial purposes as are prescribed."
This section was amended by the Civil Aviation Amendment Act 1990 (No. 25 of 1990). The amendment, which was effected by s.11 of that Act, came into operation on 24 May 1990. It substituted a new sub-section (3) for the former sub-s.(3) and inserted an additional sub-s.(3A). The new sub-sections were as follows:
"(3) The regulations may specify conditions to which Certificates (including Certificates that have already been issued) are to be subject.
(3A) A Certificate has effect subject to its conditions, being:
(a) the conditions specified in the Regulations; and
(b) any other condition specified by the Authority in the Certificate or in a written notice given to the holder."
The amending Act also inserted after the word "Certificate" in sub-s.(4) the words "that have been imposed by the Authority". There was a transitional provision in sub-s.11(2) of the amending Act in the following terms:
"11(2) An Air Operators' Certificate issued by the Authority, under section 27 of the Principal Act, that is in force immediately before the commencement of this section continues in force after that commencement as if the conditions to which it was subject immediately before the commencement were conditions specified by the Authority in the Certificate under paragraph 27(3A)(b) of the Principal Act as amended by this section."
Section 31 of the Principal Act provides for review of certain decisions under the Act by the Administrative Appeals Tribunal. The category of "reviewable decision" defined by sub-s.31(1) covers refusal to grant or issue, or a cancellation, suspension or variation of, a certificate, permission, permit or licence granted or issued under the Act or the Regulations. It also extends to 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.
Delegation of the Authority's powers was provided for in s.94 of the Principal Act in the following terms:
"94. The Authority may, by writing under its common seal, delegate all or any of its powers under this Act to:
(a) a member;
(b) the Chief Executive Officer;
(c) an officer; or
(d) a person in respect of whose services arrangements under para.91(3)(a) are in force."
By sub-s.44(1) of the Civil Aviation Amendment Act 1990 (No. 25 of 1990) s.94 was repealed with effect from 20 June 1990 and a new section 94 inserted as follows:
"94 The Chief Executive Officer may, in writing, delegate all or any of the Authority's powers under this Act to:
(a) a member; or
(b) an officer."
Again, there was a transitional provision under sub-s.44(2) whereby delegations by the Authority under the former s.94, other than delegations to the Chief Executive Officer, which were in force immediately before the commencement of the amending section, continued in force after that commencement as if they were delegations made by the Chief Executive Officer under s.94 as amended. The amendments also established a Board of Authority comprising the members of the Authority. A new section 94A provided for delegation of the Board's powers to a member or officer.
A regulation making power in s.98 includes power to make regulations for or in relation to:
"98(3)(b) the manner of applying for Air Operators Certificates including the information that may be required, and the conditions to be satisfied, for the issue of such Certificates;"
Sub-section 98(5) provides that:
"(5) Where the regulations provide for a direction, instruction, notification, permission, approval or authority to be given or issued in the form of a Civil Aviation Order, an Order so given or issued after the commencement of this section is a disallowable instrument for the purposes of s.46A of the Acts Interpretation Act 1901."
Section 47 of the Civil Aviation Amendment Act 1990 (No. 25 of 1990) amended s.98 by inserting a new sub-s.(4A) in the following terms:
"98(4A) The Authority may, in writing, issue Civil Aviation Orders, not inconsistent with this Act or the regulations, and not prescribing any pecuniary penalty, with respect to any matter in relation to which regulations may be made for the purposes of sections 23, 23B or 27, and an Order so issued is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901."
This amendment came into effect on 24 May 1990.
Civil Aviation Orders
Prior to the enactment of the Civil Aviation Act 1988 there was provision under the Air Navigation Regulations made under the Air Navigation Act 1920 for the Secretary of the Department of Aviation to make Air Navigation Orders. Section 82.0 of those orders which was effective as from 1 February 1983 specified general requirements for the holders of Air Service Licences. These included the obligation to satisfy the Secretary that where a Chief Pilot was required the person nominated had been approved by the Secretary and met the requirements set out in Appendix 1 to the Orders. Appendix 1 to s.82.0 of the Air Navigation Orders laid down minimum qualifications of a person nominated for approval as Chief Pilot and the responsibilities of persons so approved. Part 3 of Appendix 1 specified a procedure for the appointment of Chief Pilot and provided at clause 3.5:
"The approval for a person to act as a Chief Pilot shall be given in writing by the Secretary setting out any conditions or limitations that may apply. Copies of the approval will be sent to the Chief Pilot and the Operator."
Part 4 of the Appendix dealt with validity and in cl.4.1 provided that the approval of a Chief Pilot would be valid for such periods as the Secretary might from time to time specify in writing. Absent a specified period of validity, the approval would remain valid subject only to the approved person maintaining a satisfactory level of performance. Clause 4.2 provided:
"4.2 - Notwithstanding paragraph 4.1 the approval shall be cancelled or suspended at any time if, in the opinion of the Secretary, the performance of the Chief Pilot is no longer of an acceptable standard."
Section 82.1 of the Air Navigation Orders which was approved on 24 April 1987 and came into effect on that date set out requirements for charter and aerial work air service licence holders. Paragraph 2.2 required each operator to nominate a person to be Chief Pilot who would be subject to the approval of an Assistant Regional Director (Flight Standards), a Superintendent (Flying Operations) or a Senior Examiner of Airmen of the Department of Aviation. The Chief Pilot was to have such of the responsibilities contained in s.82.0 Appendix 1 as might be specified in the letter of approval.
Under the transitional provisions of s.100 of the Civil Aviation Act 1988 and in particular sub-s.100(4), air service licences were to be taken to be Air Operators' Certificates issued under the Civil Aviation Act and a reference in any such instrument to an Air Navigation Order was to be read as a reference to a Civil Aviation Order within the meaning of regulations made under the Civil Aviation Act 1988. Following the 1990 amendments it was considered desirable to issue Civil Aviation Orders under the new s. 98(4A). So far as they relate to Air Operators' Certificates, the Orders so issued which commenced on 3 October 1990 reflected generally the form and for the most part the content of the old Air Navigation Orders. Section 82.0 of Part 82 of the Orders contains provisions relating to applications for Air Operator Certificates and in para.5.1 provides that:
"5.1 Where a Chief Pilot is required by this Part to be appointed by an Operator, it is a condition of the Operators Certificate that the Operator will comply with the requirements of Appendix 1 of this section."
Appendix 1 contains provisions relating to the approval and responsibilities of a Chief Pilot. Clause 1.1 provides:
"1.1 A person must not be appointed or act as a Chief Pilot unless the person's appointment has been approved in writing by the authority after application in writing by the operator."
Clause 2 sets out the responsibilities of the Chief Pilot which include the control of all flight crew training and operational matters affecting the safety of the flying operations of the operator. In clause 5.1 of the Appendix it is provided:
"5.1 A person will not be approved as a Chief Pilot unless:
(a) in the opinion of the Authority, he or she has maintained a satisfactory record in the conduct or management of flying operations; and
(b) before being approved as a Chief Pilot, the person has:
(i) been assessed by an examiner appointed by the Authority as suitable to carry out the responsibilities of a Chief Pilot; and
(ii) passed an oral examination conducted by such an examiner covering the regulatory requirements for the safe conduct of commercial operations; and
(iii) passed a flight planning, loading and performance examination conducted by such an examiner based on the operator's most complex aircraft."
Clause 5.4 provides that an approval may be given subject to conditions specified in the instrument of approval. By clause 5.5 it remains in force for such period as the Authority specifies in the instrument of approval and in the absence of a specified period remains in force subject only to the approved person maintaining a satisfactory level of performance. Clause 6.1 deals with suspension or cancellation of an approval:
"6.1 In spite of clause 5.5, an approval may be cancelled or suspended at any time if, in the opinion of the Authority, the performance of the Chief Pilot is no longer of an acceptable standard. 6.2 Where the Authority cancels or suspends a person's appointment as a Chief Pilot the Authority must:
(a) notify the person and the operator in writing of the cancellation or suspension; and
(b) provide the person and the operator with reasons for the cancellation or suspension."
Section 82.1 of Part 82 of the Civil Aviation Orders which commenced on 3 October 1990 sets out conditions on Air Operators' Certificates authorising charter operations and aerial work operations. Paragraph 1.2 provides:
"For the purposes of section 27 of the Act, each certificate authorising charter operations and aerial work operations is subject to the condition that the obligations set out in this section are complied with."
Paragraph 2.2 requires each operator to establish a position of Chief Pilot and appoint a person to that position.
The Validity of Clause 6 of Appendix 1 of Section 82.0 of the Civil Aviation Orders
It was not in dispute that the cancellation on 27 July 1991 of Mr McInerney's approval as Chief Pilot was done in reliance upon cl.6 of the Civil Aviation Orders which issued on 3 October 1990. The orders were made pursuant to sub-s.98(4A) of the Act. That sub-section authorises the issue of orders, not inconsistent with the Act or Regulations and not prescribing any pecuniary penalty, with respect to any matter in relation to which regulations may be made, inter alia, "for the purposes of section 27". By virtue of s.27(3) those matters include the specification of conditions to which Air Operators' Certificates are to be subject. Sub-section 98(4A) may therefore be taken to authorise the issue by the Authority of Civil Aviation Orders with respect to the conditions to which Air Operators' Certificates are to be subject provided that such conditions are not otherwise inconsistent with the Act. On the language of that subsection it is prima facie within the powers of the authority to make a Civil Aviation Order which requires that the holder of an Air Operators' Certificate nominate a Chief Pilot acceptable to it on criteria relevant to the safe and efficient functioning of the holder's air operations. It was not submitted that the Authority could not make such an order and I am satisfied that it can.
The applicants' submissions focussed upon the provisions in cl.6 of Appendix 1 relating to the cancellation or suspension of an Approval. The Authority, it was said, is empowered by sub-s.27(3) of the Act to make regulations and therefore by virtue of s.98(4A) Orders specifying conditions to which Certificates are to be subject. The power to suspend or cancel an approval, it was said, is not such a condition. But once it is accepted that the Certificate can be conditioned upon the employment of an approved Chief Pilot with the approval itself related to the acceptance of various responsibilities, it is a necessary incident of that condition that approval can be withdrawn. Sub-section 98(4A) authorises orders with respect to conditions to which Certificates are to be subject. It therefore authorises the specification of such conditions and provisions ancillary to them. The cancellation clause is such a provision.
It was also submitted in support of this ground of review that the cancellation of the Chief Pilot's Approval had the effect that until a new Chief Pilot was approved or the approval of the previous incumbent reinstated, the company could not carry on the operations authorised by its Air Operator's Certificate. So far as it goes, that submission appears to be correct. Paragraph 2.2 of s.82.1 of the Civil Aviation Orders requires each operator to establish a position of Chief Pilot and appoint a person to that position. Paragraph 1.2 makes that obligation a condition of the Air Operator's Certificate. That condition is of a continuing nature and is breached when a Chief Pilot's Approval is cancelled. By sub-s.27(5) of the Act the Certificate does not authorise any operation to which the condition relates while the breach continues. It was then said that the cancellation of the approval is a decision that is not one of those for which s.31 provides a review on the merits before the Administrative Appeals Tribunal. Therefore the cancellation of an approval amounts, it was submitted, to the cancellation or suspension of the Air Operator's Certificate in a way that does not afford its holder the opportunity of statutory review. Counsel for the applicants contended that Parliament could not have intended that result nor authorised the imposition of conditions on Certificates which could bring it about.
The submission that the cancellation of an approval is not reviewable under sub-s.31(1) is supported by the observations of O'Connor J. sitting as President of the Administrative Appeals Tribunal in Re Surf Air and Civil Aviation Authority (1991) 22 ALD 118 at 122:
"An approval as chief pilot is not a "condition" or "authorisation" contained in a certificate, permission, permit or licence. It is rather a separate instrument, although it may well have a practical effect on the holder of a licence or certificate in so far as flight operations are not permitted unless a properly approved person is appointed as chief pilot....While I am of the view that an "approval" may come within a "permit or permission", the decision to cancel the approval in this case was not made under the Act or regulations. It was made under an order. The decision is thus not reviewable by this Tribunal as it does not come within the definition of reviewable decision in s.31(1)."
On the other hand the argument may be available that the approval of a person to act as Chief Pilot is the grant or issue of a permission "under the Act or Regulations" in the relevant sense which would attract the jurisdiction of the Administrative Appeals Tribunal by virtue of s.31(1). It is not necessary, however, for me to decide that jurisdictional question here. For I do not consider that the next step in the applicants' argument is supportable. There is nothing in the language of s.27 or the order making power under s.98(4A) of the Act which would limit the range of orders that can be made in the way proposed. Counsel was not able to point to anything in the language of the Act to lend support to the submission beyond the apparent policy of s.31. In my opinion, this is not sufficient to sustain the narrow view of the power for which he contends and the first ground of the application will therefore fail.
Whether Mr Scaife Was Authorised to Cancel the Chief Pilot's Approval
At the time he wrote the letter of 27 July 1991 notifying Mr McInerney of the cancellation of his approval as Chief Pilot, Mr Scaife occupied the office of an Assistant General Manager for the Authority. The precise designation was Assistant General Manager Safety Regulation and Standards. Mr Scaife deposed in his affidavit, and it was not disputed, that his duties included the issuing of licences, certificates and approvals under the Civil Aviation Act 1988 and subordinate legislation. They also extended to the supervision of surveillance and monitoring of compliance with safety standards. When he cancelled Mr McInerney's approval he was, he said, acting "for and on behalf of" the Authority.
There was an instrument of delegation before the Court, but nowhere was Mr Scaife's office specified in the terms in which he described it. I am nevertheless prepared to accept that he was an Assistant General Manager, WA Region, within the meaning of the delegation and as such had power to issue Air Operator's Certificates for charter and aerial work. I am also satisfied that he had a delegation to specify, add and vary conditions on Air Operators' Certificates under sub-s.27(3) of the Act. However the delegation did not in terms extend to the granting or cancellation of an approval under Appendix 1 of the Civil Aviation Orders. The Authority submitted nevertheless that Mr Scaife had properly acted on its behalf in cancelling the approval. I accept that submission. In this area of decision-making, formal delegated power was not necessary. Mr Scaife was able to act on behalf of the Authority as one of its officers with obvious responsibilities in the relevant area. The position was akin to that enunciated by Lord Greene MR in Carltona Ltd v. Commissioners of Works (1943) 2 All ER 560 at 563:
"In the administration of government in this country the functions which are given to ministers (and constitutionally properly given to ministers because they are constitutionally responsible) are functions so multifarious that no minister could ever personally attend to them.... The duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department. Public business could not be carried on if that were not the case. Constitutionally, the decision of such an official is, of course, the decision of the minister. The minister is responsible. It is he who must answer before Parliament for anything that his officials have done under his authority and if for an important matter he selected an official of such junior standing that he could not be expected competently to perform the work, the minister would have to answer for that in Parliament."
In R. v. Skinner (1968) 2 QB 700 at 707, Widgery L.J. delivering the judgment of the Court of Appeal, observed that the dictum of Lord Greene M.R. recognised that the minister is not expected personally to take every decision entrusted to him by the Parliament:
"If a decision is made on his behalf by one of his officials then that constitutionally is the Minister's decision. It is not strictly a matter of delegation; it is that the official acts as the Minister himself and the official's decision is the Minister's decision."
Lord Greene's dictum was cited with approval by Brennan J. in Re Reference Under Section 11 of Ombudsman Act 1976 For An Advisory Opinion; Ex parte Director-General of Social Services (1979) 2 ALD 86 at 93. His Honour, who was there sitting as President of the Administrative Appeals Tribunal, discussed at some length the distinction between a ministerial officer acting as delegate and acting as agent for the Minister. Where there is a power to delegate the function in question, it may be that the statutory justification for vicarious decision-making is less clear. Brennan J. said at 94 that in principle there seemed to be no reason why a delegate of the Director-General of Social Services should not exercise powers independent of the delegation as an agent. Nevertheless he was of the view that the statutory scheme for reviewing determinations under s.14 of the Social Services Act was not consistent with such a dual character:
"The practical administrative necessity which warrants an authority's exercising his power by the acts of another disappears when the authority is empowered to delegate all of his powers and functions to that other."
This remains a matter of statutory construction. In O'Reilly v. The Commissioners of the State Bank of Victoria (1983) 153 CLR 1 at 11-12, Gibbs CJ considered that although there was a power in the Commissioner of Taxation to delegate his functions under s.264 of the Income Tax Assessment Act it was not intended that there should be a wholesale delegation of powers to comparatively minor officials. They could be exercised through a properly authorised officer. On this point Murphy J. agreed with the Chief Justice. Wilson J. found the logic of Lord Greene in Carltona equally persuasive in its application to the head of any large government department (30-31).
In the present case there is no delegation nor, it seems, any power of delegation of the power and functions of the Authority under the Civil Aviation Orders. In the circumstances and having regard to the office he held and its attendant duties, I am satisfied that Mr Scaife had the necessary authority to take decisions on behalf of the authority.
For these reasons the second ground fails and in the circumstances the application as a whole fails and must be dismissed.
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