Vasilevski v Ministry of Transport - [2007] NSWADT 48

No judgment structure available for this case.

CITATION: Vasilevski v Ministry of Transport [2007] NSWADT 48

DIVISION: General Division

PARTIES: APPLICANT
Bogoja (Bob) Vasilevski
RESPONDENT
Ministry of Transport

FILE NUMBER: 053428

HEARING DATES: 02/03/06, 17/05/06

SUBMISSIONS CLOSED: 13 February 2007

DATE OF DECISION:
2 March 2007

BEFORE: Pearson L - Judicial Member

CATCHWORDS: Bus driver - cancellation of authority - Passenger Transport Act - bus driver - cancellation of authority

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Airports (Control of On-Airport Activities) Regulation 1997 (Cth)
Airports Act 1996 (Cth)
Commonwealth of Australia Constitution Act 1900
Commonwealth Places (Application of Laws) Act 1970 (Cth)
Judiciary Act 1903 (Cth)
Passenger Transport (Bus Services) Regulation 2000
Passenger Transport Act 1990

CASES CITED: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72
Attorney General v 2UE Sydney Pty Ltd & Ors [2006] NSWCA 349
Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245
Farquharson v Director General, Department of Transport [1999] NSWADT 53
Frugtniet v Administrative Decisions Tribunal (Appeal Panel) [2005] NSWCA 257
Hughes & Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127
Saadieh v Director General, Department of Transport [1999] NSW ADT 68
Trust Company of Australia Ltd (trading as Stockland Property Management) v Skiwing Pty Ltd (trading as Café Tiffany’s)[2006] NSWCA 185
YG & GG v Minister for Community Services [2002] NSWCA 247

REPRESENTATION:
APPLICANT
P Clough, solicitor
RESPONDENT
A Wozniak, solicitor

ORDERS: The matter is down for directions on Tuesday 13 March 2007 at 10:30 am.

1 On 2 December 2005 the respondent cancelled the applicant’s Driver Authority No. CX 6588 under section 14 of the Passenger Transport Act 1990 (the PT Act). The applicant lodged an application for review with the Tribunal on 9 December 2005, and applied on the same date for an urgent stay of the decision. The stay was granted on 13 December 2005 on condition that the applicant not pick up a passenger at the airport unless he has a prior booking. On that date directions were made for the filing and serving of evidence if an internal review application was not successful.

2 The decision to cancel the applicant’s driver authority was affirmed on internal review on 10 January 2006.

3 The matter was scheduled for hearing on 2 March 2006. On that date, the applicant’s representative provided written submissions. Those submissions addressed three arguments:

(3) the offences are ultra vires

(2) the respondent had taken into account irrelevant considerations in determining that the applicant is not of good repute and in all other respects a fit and proper person to be a driver of a public passenger vehicle

(3) the cancellation of the applicant’s driver authority is punishment for offences which have already been determined.

4 The first part of the applicant’s submissions raised the issue of the application of s109 of the Constitution to the operation of New South Wales legislation and Commonwealth legislation. This issue has implications for the jurisdiction of the Tribunal. I directed that the applicant give notice under s78B(1) of the Judiciary Act 1903 (Cth), and made further directions concerning the filing and serving of written submissions.

5 The Attorney General of New South Wales intervened, and was represented at the adjourned hearing on 17 May 2006 by Ms R Pepper.

6 After the hearing, and while my decision was reserved, the Court of Appeal delivered its decision in Trust Company of Australia Ltd (trading as Stockland Property Management) v Skiwing Pty Ltd (trading as Café Tiffany’s)[2006] NSWCA 185 (“Skiwing”). I invited the parties to make submissions, and supplementary submissions were provided by the Attorney General (intervener) and the applicant. On 11 December 2006 the Court of Appeal delivered its decision in Attorney General v 2UE Sydney Pty Ltd & Ors [2006] NSWCA 349 (“2UE”), and I invited the parties to make further submissions. Supplementary submissions were received from the applicant on 6 February 2007, and from the respondent on 13 February 2007.

Background

7 Section 14 of the PT Act provides:

Having regard to the purpose of an authority, the Director-General may at any time vary, suspend or cancel any person’s authority.

8 Section 11 of the PT Act sets out the purpose of an authority:

(a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle, and

(b) that the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates:

(ii) in accordance with law and custom.

9 On 7 November 2005 the respondent invited the applicant make submissions as to why his authority should not be cancelled. The respondent relied on eight infringement notices issued in relation to breaches of reg19 of the Passenger Transport (Bus Services) Regulation 2000 during the period 12 November 1998 to 2 November 2005. In brief, these were:

27 June 2005 – soliciting for passengers, Virgin terminal, Mascot Airport; bus driver leave driving seat

13 May 2005 – soliciting for passengers, Virgin terminal, Mascot; bus driver leave driving seat

19 November 2004 – soliciting for passengers, Mascot airport

19 April 1999 – soliciting for passengers, Ansett terminal, Mascot Airport

12 November 1998 – soliciting for passengers, Qantas terminal, Mascot Airport

10 Regulation 19 of the Passenger Transport (Bus Services) Regulation 2000 (the Bus Services Regulation) provides:

The driver of a bus must not do any of the following:

(b) eat or drink in a bus while the bus is conveying any passenger,

(c) solicit for passengers or for a hiring,

(d) move the bus while the doors are open,

(e) negligently or wilfully start or cause the bus to be started so that any passenger or intending passenger in or on it or entering or alighting from it is subjected to the risk of injury.

11 The applicant’s then representative responded by providing two personal references, and stated:

We advise you that he understands the seriousness of the matters raised by you and the affect any action on your part will have on his livelihood.

12 In the statement of reasons for the decision to cancel the applicant’s authority, the delegate referred to the eight infringements, and stated:

The infringements recorded against you casts grave doubts about your fitness to hold a public passenger transport vehicle drivers authority and of your ability to carry out the duties and responsibilities of the position according to law and custom.

13 In his request for internal review dated 9 December 2005 the applicant stated, in part:

…

I realise that soliciting from the airport is illegal and is no longer a viable strategy to sustain my business. For this reason I am now running advertisements in the local yellow pages and local newspaper and have printed pamphlets as an alternative strategy to grow my business and to take away any need to solicit.

14 On 13 December 2005 the applicant was granted a stay of the decision on condition that he not pick up passengers at the airport unless he has a prior booking. In the decision on internal review the respondent’s delegate relied on a further incident, summarised as follows:

On 24 December 2005 Mr Vasilevski was observed by compliance officer Rosiello at Sydney Airport soliciting for passengers. Mr Vasilevski informed the officer that he could attend the airport as he had a booking, which was later. When asked why he was contravening the conditions of his stay, Mr Vasilevski replied that his wife did not work and that he was trying to make money to survive.

15 The Tribunal’s jurisdiction to review the decision to cancel the applicant’s authority is conferred by s52 (1) of the PT Act:

(1) Any person whose application under Part 2, 4 or 4A has been refused, or whose accreditation, authority or authorisation has been varied, suspended or cancelled may apply to the Administrative Decisions Tribunal for a review of the refusal, variation, suspension or cancellation.

Submissions

16 The applicant submitted that the applicant’s bus service falls within the definitions of “consumer trading”, “tourist service” and “parking signage plan” in clauses 97, 106 and 106BA respectively of the Airports (Control of On-Airport Activities) Regulation 1997 (the Airports Activities Regulations), and that NSW laws do not apply by virtue of reg 106B, which states:

If the laws of the State where an airport is located and this Division both make provision for a matter, the laws of the State do not apply in relation to landside of the airport to the extent that the matter is dealt with in this Division.

17 The applicant submitted that NSW laws do not apply within the confines of the landside of Sydney Airport, and that as a consequence the applicant has committed no offences, and it is not appropriate for his authority to be suspended or cancelled on that basis.

18 The Attorney General addressed the applicant’s submissions on two bases, described as a statutory interpretation argument and a constitutional argument. The Attorney General conceded that the land on which Sydney Airport stands is a Commonwealth place within the meaning of section 52(i) of the Constitution, and relied on section 4(1) of the Commonwealth Places (Application of Laws) Act, which states:

(1) The provisions of the laws of a State as in force at a time (whether before or after the commencement of this Act) apply, or shall be deemed to have applied, in accordance with their tenor, at that time in and in relation to each place in that State that is or was a Commonwealth place at that time.

19 The Attorney General submitted that cl 19 of the Bus Services Regulation is concerned with proscribing the conduct of bus drivers, and not the movement or parking of buses. Div 2 of Part 4 of the Airports Activities Regulations does not make provision for the regulation of the conduct of bus drivers. So cl 106B of the Airports Activities Regulations does not, as a matter of statutory construction, preclude the operation of cl 19 of the Bus Services Regulations.

20 On the constitutional argument, the Attorney General submitted that properly construed no direct inconsistency arises between cl 19 of the Bus Services Regulation and the Airports Activities Regulations; and the Commonwealth has not evinced an intention to cover the field with respect to the regulation of airports, and s177 of the Airports Act and cl 106B of the Airports Activities Regulations are an express intention to the contrary.

21 In supplementary submissions dated 14 August 2006, the Attorney General submitted:

Skiwing

In view of that decision in Skiwing the Attorney submits that, assuming it needed to do so, the Tribunal should not determine a constitutional question in the present proceedings. Alternatively, in view of the appeal in Radio 2UE to the Court of Appeal, it is submitted that the Tribunal should await the determination of that matter.

22 The applicant’s supplementary submissions dated 25 August 2006 sought to confine the decision in Skiwing to the issues then before the Court of Appeal, and distinguish it on the basis that there are no jurisdictional impediments contained in the Airports Act 1996 which restrict the jurisdiction of that Act as was the case with s86(2) of the Trade Practices Act. Further, the issue before the Tribunal is the ability of the applicant to continue his mode of employment whereas the issue before the Court of Appeal in Skiwing was the payment of damages for breach of s52 of the Trade Practices Act. In a further submission dated 24 November 2006 the applicant relied on the High Court decision in New South Wales v Commonwealth [2006] HCA 52, citing Wenn v Attorney General (Victoria) (1948) 77 CLR 84.

23 The applicant provided further submissions in relation to the Court of Appeal decision in 2UE. The applicant submitted that the Tribunal has authority to consider all the law both Commonwealth and State, forming an opinion in respect of each and the invalidating effect of both reg 106B of the Airport (Control of On Airport Activities) Regulations and s109 of the Constitution. The applicant relied on the judgment of Hodgson JA as authority for the Tribunal to consider three questions:

Is reg 106B a valid law of the Commonwealth and does it apply to the factual situation presented in each of the criminal or infringement notices which supports the respondent’s cancellation of the applicant’s authority?

Does s109 of the Commonwealth Constitution apply to invalidate reg 19(c) of the Passenger Transport (Bus Services) Regulations 2000 as they apply at Sydney (Kingsford-Smith) Airport?

24 The respondent provided further written submissions on 13 February 2007, to the effect that in applying the principles set out in 2UE, the constitutional point advanced by the applicant cannot be entertained by the Tribunal.

Court of Appeal decisions

25 As noted above, after the hearing of this matter the Court of Appeal delivered judgment in two cases which bear on the issues I have to determine: Trust Company of Australia Ltd (trading as Stockland Property Management) v Skiwing Pty Ltd (trading as Café Tiffany’s) [2006] NSWCA 185 (“Skiwing”), and Attorney General v 2UE Sydney Ltd & Ors [2006] NSWCA 349 (“2UE”).

26 Skiwing was an appeal from a decision of the Appeal Panel of the Tribunal on appeal from a decision of the Retail Leases Division. The Retail Leases Division had held that it had no jurisdiction to entertain a claim under the Trade Practices Act 1974 (Cth). The Appeal Panel held that the Tribunal did have such jurisdiction, and remitted the matter for reconsideration.

27 The jurisdiction to consider a claim for contravention of s52 of the Trade Practices Act is conferred by s86(2) of that Act, which provides:

(2) The several courts of the States are invested with federal jurisdiction within the limits of their several jurisdictions, whether those limits are as to locality, subject-matter or otherwise, and, subject to the Constitution, jurisdiction is conferred on the several courts of the Territories, with respect to any matter arising under Part IVA or IVB or Division 1, 1A or 1AA of Part V in respect of which a civil proceeding is instituted by a person other than the Minister or the Commission.

28 Spigelman CJ (with whom Hodgson and Bryson JJA agreed) noted that the words “court of a State” had to be understood as a constitutional expression, and that the Constitutional power to confer, pursuant to s77(iii) of the Constitution, jurisdiction on a State court, forms part of the integrated Australian judicial system for which the Constitution provides. In order to be part of the constitutionally required integrated judicial system, “a tribunal must be able to be characterised not only as a court, but as a court of law” (at [52]). Spigelman CJ held that the Tribunal is not a “court of a State” within s86(2) of the Trade Practices Act, on the basis that it is not predominantly composed of judges. The same conclusion would be reached on the basis of the balancing of factors outlined in Orellana-Fuentes v Standard Knotting Mills Pty Ltd (2003) 57 NSWLR 282.

29 Attorney General v 2UE Sydney Ltd & Ors [2006] NSWCA 349 (“2UE”) was an appeal from the Appeal Panel of the Tribunal on appeal from a decision of the Equal Opportunity Division of the Tribunal. The Equal Opportunity Division had upheld a complaint under s49ZT of the Anti-Discrimination Act 1977(NSW) and ordered that an apology be broadcast, and costs. The first, second and third opponents appealed, arguing that s49ZT was invalid, or should be read down on the basis that it contravened the Constitutional immunity for political speech. The Attorney General of New South Wales intervened, arguing that the Appeal Panel did not have the jurisdiction to hear or determine a question arising under the Commonwealth Constitution or involving its interpretation. The Appeal Panel rejected the Attorney General’s arguments, and held that the Tribunal did have the power to consider any question of law relating to its jurisdiction: Radio 2UE Sydney Pty Ltd & Ors v Burns (EOD) [2005] NSWADTAP 69.

30 The two preliminary questions determined in favour of the opponents by the Appeal Panel (O’Connor DCJ, President) were as follows:

Judiciary Act

Constitution

(ii) Alternatively, whether the Tribunal is competent to consider any question of law relating to its jurisdiction.

31 As noted by Spigelman CJ, the first basis on which O’Connor DCJ found that the Appeal Panel had jurisdiction was inconsistent with the subsequent judgment of the Court of Appeal in Skiwing, and accordingly the Court of Appeal was concerned only with the second basis of the Appeal Panel’s determination. O’Connor DCJ had held that while a determination of a Constitutional question by an administrative body such as the Tribunal would not be definitive or final, the Tribunal was obliged to address any challenge to its jurisdiction, “whatever the nature of the issue” (at [108]).

32 Spigelman CJ first considered the Tribunal’s powers of statutory interpretation, in the following terms:

30 In order to confer such a function, it is not necessary to have express words but, as it happens, s115(1)(b) expressly requires an Appeal Panel to have regard to “any applicable written or unwritten law”. That provision encompasses an obligation to have regard to s49ZT of the Anti-Discrimination Act, s31 of the Interpretation Act, covering cl 5 of the Constitution of the Commonwealth and the “unwritten law”, constituted by the Constitutional immunity with respect to political speech.

31 But for any disentitling provision, whether statutory or constitutional, I do not doubt that it is open to the Tribunal to approach the task of interpretation with a view to bringing the operation of s49ZT into conformity with the Constitutional immunity, assuming there to be any disconformity. The issue before the Court is whether there is any such disentitling provision in the Commonwealth Constitution or in a Commonwealth statute.

32 The nature of the Tribunal’s interpretative function, like that of any other administrator with statutory powers the exercise of which have legal consequences, is such that in the words of O’Connor DCJ as quoted above, it could not lead to a decision on a Constitutional question which was “definitive or final”.

33 Spigelman CJ posed the issue before the court in the following terms:

Judiciary Act

Anti-Discrimination Act

Interpretation Act

34 Spigelman CJ accepted the distinction drawn by the Attorney General between a Tribunal forming a view on jurisdiction, which may involve consideration of the meaning of a statute, on the one hand, and determining any conditions on the exercise of jurisdiction in a binding manner. The provisions for enforcement of the Tribunal’s orders by certification under s114 of the Anti-Discrimination Act with respect to the apology order and under s83(2) of the ADT Act with respect to the costs order, were crucial. Applying Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, Spigelman CJ continued:

76 From the perspective of Chapter III, the Appeal Panel is a manifestation of the Executive. The rigour of Australian Chapter III jurisprudence does not permit a distinction to be drawn between a quasi-judicial tribunal and any other executive agency. The position of the Tribunal is no different to that of a Minister. Consider the case of a statute which provides that a Minister’s opinion about the Constitutional validity of a State Act can be registered as a judgment of the Supreme Court, enforceable as such against the persons involved in a dispute. It is only necessary to state that proposition to realise that it cannot be right. The Tribunal and Appeal Panel are in no different position.

77 It makes no difference that, by s119 of the ADT Act, a party to proceedings before an Appeal Panel may appeal to the Supreme Court on any question of law or that by s122 of the ADT Act the judicial review jurisdiction of this Court, with respect to the Tribunal and the Appeal Panel, is preserved.

78 The legislation under consideration in Brandy provided that, although upon registration a determination had effect as if it were an order made by the Federal Court, no action to enforce the determination could be made pending a “review” by the Federal Court of the determination. Upon such an application for review being made, the Court had power to review “all issues of fact and law”. This did not save the legislation there under consideration. The use of the word “review” rather than the word “appeal” as in the present legislation is not material. (See Brandy at 261.)

79 Indeed, as Mr Sexton submitted, the present legislation is more restrictive insofar as it does not permit any appeal with respect to questions of fact. In this case, as in Brandy, the Tribunal’s decision has effect upon registration and becomes enforceable even if the appeal provisions are not invoked. (See Brandy at 261-262 and 270-271.)

80 A State tribunal may, in my opinion, consider the Constitutional validity of State legislation in the course of the exercise of its statutory powers. However, no State tribunal can exercise the judicial power of the Commonwealth. The registration provisions to which I have referred have the consequence that if the Tribunal and Appeal Panel proceed to do the former, they will purport to do the latter.

35 Spigelman CJ concluded:

Brandy

36 Spigelman CJ proposed a declaration in the following terms:

A declaration that the Appeal Panel of the Administrative Decisions Tribunal has no jurisdiction to determine whether s49ZT of the Anti-Discrimination Act 1977 (NSW), should be read down so as not to infringe the constitutional implication of freedom of communication about government or political matters.

37 In a separate judgment, Hodgson JA agreed that the declaration should be made. In the course of his reasoning, Hodgson JA held:

100 Thus, the combination of s.115(1) of the ADT Act and s.31(1) of the Interpretation Act requires the Appeal Panel, in disposing of any appeal, to have regard to any relevant constitutional limits of the legislative powers of the New South Wales Parliament in construing New South Wales legislation, including s.49ZT of the Anti-Discrimination Act 1977.

38 Hodgson JA noted that a similar obligation applies to the Tribunal at first instance. However, there is no equivalent to s118 of the ADT Act which allows the Appeal Panel to refer a question of law to the Supreme Court, and thus “no basis on which the ADT can adopt some procedure of not proceeding to determine a matter pending determination of a question of law by the Supreme Court” (at [103]). Hodgson JA concluded that “the ADT is required to make a decision on a complaint in accordance with valid law as it understands it to be, including s31 of the Interpretation Act” (at [105]). Hodgson JA noted that this course would seem to be precluded by the decision in Brandy , and concluded with three possible views (at [113]):

2. The registration provisions are not valid.

3. For the Appeal Panel or the ADT at first instance to apply s.31 of the Interpretation Act in a case such as this would not be an exercise of Federal jurisdiction, because Brandy is distinguishable on the basis I have indicated in the previous paragraph.

39 Hodgson JA rejected the third alternative. The second alternative could not be either adopted or excluded, as no-one had contended for it and consideration would probably require a further notice under s78B. Hodgson JA concluded:

116 This declaration would not preclude the Appeal Panel from reaching its own conclusion on a Constitutional question if the registration provisions are not valid, because then the Appeal Panel would not be exercising jurisdiction to determine the Constitutional question. However, unless and until the registration provisions were held to be invalid by a court, or else amended as suggested by Spigelman CJ, the appropriate course for the Appeal Panel would be to refrain from deciding a Constitutional question, and thus from deciding any appeal that depended on a Constitutional question, unless and until that question had been decided by a court.

40 Ipp JA agreed with Spigelman CJ and Hodgson JA.

Application of principles

41 The Court of Appeal decision in Skiwing establishes that the Tribunal is not a “court of a State” for the purpose of the exercise of jurisdiction under s86(2) of the Trade Practices Act. As confirmed in 2UE, that means that the Tribunal is not a “court of a State” for the purposes of s39 of the Judiciary Act, in particular s39(2), which invests the courts of the States with federal jurisdiction. That may mean that s78B of the Judiciary Act, which requires the serving of notices before a federal Court or a court of a State or Territory proceeds to determine a cause which involves a matter arising under the Constitution or involving its interpretation, does not apply. However, the Attorney General of NSW has power under s69(1) of the ADT Act to intervene in any proceedings before the Tribunal, and the written submissions indicate that the Attorney General’s intervention in this matter was pursuant to s69(1) of the ADT Act “and/or s78A of the Judiciary Act”.

42 The provision for registration, and enforcement, of decisions of the Tribunal was critical in 2UE. While one of those provisions, namely s114 of the Anti-Discrimination Act, applies to matters heard in the Equal Opportunity Division of the Tribunal, the other, s82(3) of the ADT Act, applies to matters heard in all divisions, including the General Division. In any event, Skiwing is authority for the proposition that in considering the nature of the jurisdiction exercised by the Tribunal, the relevant institution is the Tribunal, and not its separate Divisions.

43 While the Tribunal does not exercise federal judicial power, and thus has no authority to determine matters “arising under [the] Constitution, or involving its interpretation”, matters before the Tribunal may raise Constitutional questions. The issue is how the Tribunal, in this instance sitting in its original jurisdiction, is to deal with those questions.

44 In 2UE the Court of Appeal was considering a decision of the Appeal Panel, and the powers conferred by s115(1) of the Administrative Decisions Tribunal Act 1997 (NSW):

(b) any applicable written or unwritten law.

45 The relevant provision in this matter is s63(1) of the ADT Act:

(b) any applicable written or unwritten law.

46 Section 31 of the Interpretation Act 1987 (NSW) provides:

(1) An Act or instrument shall be construed as operating to the full extent of, but so as not to exceed, the legislative power of Parliament.

(2) If any provision of an Act or instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the legislative power of Parliament:

(b) the remainder of the Act or instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected.

47 Although there are some differences in the reasoning between Spigelman CJ and Hodgson JA in 2UE, it is clear from both judgments that the Tribunal, whether at first instance or sitting as the Appeal Panel, has no jurisdiction to determine a constitutional question. Section 63(1)(b) of the ADT Act requires the Tribunal to have regard to “any applicable written or unwritten law”; and in applying s31 of the Interpretation Act in interpreting s63(1)(b), the word “applicable” does not extend to a question arising under the Constitution or involving its interpretation.

48 Section 118 of the ADT Act allows the Appeal Panel to refer a question of law to the Supreme Court. While it may be appropriate for the Appeal Panel in a particular matter to exercise this power and to refer a question of law raising a Constitutional question to the Supreme Court, as Hodgson JA notes in 2UE, there is no equivalent provision in the original jurisdiction of the Tribunal. Hodgson JA confirms that the Tribunal must deal with the matter before it (at [107]).

49 The Commonwealth Administrative Appeals Tribunal has in general adopted the approach of accepting the constitutional validity of the legislation conferring review powers on it. In Re Adams and Tax Agents Board (1976) 1 ALD 251, Brennan J discussed the obligation of an administrative decision maker to form an opinion as to the limits of its authority, which requires it to consider the legal limits of that authority. Brennan J noted that if an administrative tribunal is competent to form an opinion on the constitutional validity of the statute conferring jurisdiction in order that it might act in accordance with the law, that “is merely the means which the administrative body may adopt in moulding its conduct to accord with the law”. Brennan J concluded that the AAT could not grant relief on the ground that the relevant statute conferring jurisdiction was Constitutionally invalid. Subsequent decisions of the AAT have confirmed that while the AAT can consider and form an opinion on the validity or invalidity of an Act of Parliament, it has no power to make a decision on the basis that an Act or part of it is invalid: see, for example, Re McKie and Minister for Immigration, Local Government and Ethnic Affairs (1988) 8 AAR 90; Re Sawmillers Exports Pty Ltd and Minister for Resources (1996) 41 ALD 657.

50 In his judgment Spigelman CJ considered the decision of Brennan J in Re Adams and the Tax Agents Board (1976) 12 ALR 239, noting that Brennan J had expressly rejected the case law of the United States Supreme Court which denies an administrative officer any function of taking into account Constitutional challenges to the validity of legislation. His Honour continued:

“If it be allowed that there is, in Australian legal theory, a competence in an administrative body to consider and form an opinion upon the Constitutional validity of a statute in order that that body may act in accordance with law, the competence to form the opinion and to be informed on the question of Constitutional validity should not be treated as a jurisdiction invested in the administrative body to reach a conclusion having legal effect. It is merely a means which the administrative body may adopt in moulding its conduct to accord with the law.”

36 I note that his Honour did not consider the effect of the directive of the Commonwealth Parliament in s15A of the Acts Interpretation Act to which I have referred.

37 His Honour’s reasons conclude with a finding that the Administrative Appeals Tribunal, of which his Honour was sitting as President, could not grant relief on the basis that the relevant statute was Constitutionally invalid. As I have noted above, the Opponents in the present case do not contend for any such finding. Their submissions are directed to the ability of the Appeal Panel to consider the Constitutional immunity and to interpret the relevant section so as to conform with that immunity. Brennan J’s reasoning in Adams and the Tax Agents’ Board appears to me to affirm the ability of the Tribunal to pursue such a course, albeit with some hesitation.

51 Hodgson JA rejected a submission that “what the Appeal Panel should do is make its decision regardless of Constitutional questions”(at [110]). In his previous discussion, His Honour refers separately to the Appeal Panel, and “the ADT”, indicating the Tribunal sitting at first instance. Given the absence of an equivalent provision to s118, it is arguable that His Honour is not precluding the Tribunal at first instance adopting a practical means of resolving matters before it, along the lines of the approach of the Commonwealth AAT. However, Hodgson JA expressly leaves open the first two alternatives put in paragraph 113 (set out in paragraph 37 above), namely, that neither the Appeal Panel nor the ADT in its original jurisdiction can proceed to a decision of the matter unless and until the Constitutional question is addressed by a Court having Federal jurisdiction.

52 Applying the decisions in Skiwing and 2UE, I consider that the following approach to resolution of this matter is open. While I have no jurisdiction to determine a matter arising under the Constitution, or involving its interpretation, I am required to deal with the matter before me. A practical means of doing so is to adopt the approach taken by the Commonwealth AAT, namely that I have no power to make a decision on the basis that an Act or part of it is invalid. I do not read the judgments of Spigelman CJ or Hodgson JA in 2UE as expressly precluding such an approach.

53 As noted in paragraphs 18 to 20 above, the Attorney General’s submissions addressed what were described as a “statutory interpretation” argument, and a “constitutional” argument. The legislative context comprises both State and Commonwealth laws. The State laws are contained in the provisions of the PT Act and reg19(c) of the Bus Services Regulation set out in paragraphs 9 and 10 above. The relevant Commonwealth legislation applicable to Sydney airport is the Airports Act 1996. Part 11 of the Airports Act deals with Control of Certain On-Airport Activities, and enables regulations to be made dealing with control of commercial trading (s171) and vehicle movements (s172). Section 177 provides:

(2) The regulations may declare that a specified law of a State or Territory has no effect at a specified airport to the extent to which the law makes provision for and in relation to a matter referred to in section 170, 171, 172, 173 or 174.

54 The Airports (Control of On-Airport Activities) Regulations 1997 deal with the matters in Part 11 of the Airports Act. Clause 106B of the Airports Activities Regulations provides:

If the laws of the State where an airport is located and this Division both make provision for a matter, the laws of the State do not apply in relation to the landside of the airport to the extent that the matter is dealt with in this Division.

55 Part 3 deals with Commercial trading, and Part 4 with Vehicles. Division 2 of Part 4 deals with Landside vehicle parking. The applicant submits that clauses 106BA and 114 apply to the applicant’s activities; the Attorney General submits that Division 2 does not make provision for the regulation of the conduct of bus drivers.

56 Section 109 of the Constitution states:

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

57 Applying the decision of the Court of Appeal in 2UE, I cannot consider whether the NSW laws are “inconsistent” with the Commonwealth legislation, either because there is a direct inconsistency, or because there is an intention, express or inferred, by the Commonwealth legislature to cover the field, such as to give rise to an inconsistency for the purposes of s109 of the Constitution. The statutory interpretation argument requires consideration of whether the Airports Activities Regulations and the Bus Services Regulation both make provision for the same subject matter, namely the conduct of bus drivers while at Sydney airport, and thus whether cl106B of the Airports Activities Regulations precludes the operation of cl19 of the Bus Services Regulation. Consideration of the statutory interpretation argument requires consideration of the interaction between two laws, one Commonwealth and the other State. To the extent that this raises a question of whether there is any overlap, or inconsistency, between the two laws, it necessarily raises a Constitutional question, namely whether there is inconsistency between the two laws such that s109 of the Constitution applies. I have no power to deal with that question.

58 The result is that the applicant’s application for review must be determined on the basis that the New South Wales legislation governing the operation of passenger transport vehicles applies to the applicant’s activities as a bus driver, and that the infringement notices for the offences under cl19(c) of the Bus Services Regulation were properly issued.

Substantive issue

59 The test the Tribunal must apply under s11 of the PT Act is whether it can be attested:

(b) that the applicant is considered to have sufficient responsibility and aptitude to drive a passenger transport vehicle.

60 President O’Connor said in Farquharson v Director General, Department of Transport [1999] NSWADT 53, that:

Re T and Director of Youth & Community Services

61 The activities in which the person will be engaged are relevant to consideration of whether he is a “fit and proper person”: Hughes & Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 at 156-7. In Saadieh v Director General, Department of Transport [1999] NSW ADT 68 at [17] Deputy President Hennessy set out several factors which should be considered when determining a person's fitness and suitability to hold a taxi authority:

- the nature, seriousness and frequency of any complaints made against the applicant;

- the applicant's driving record;

- the applicant's reputation in the community; and

- the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences.

62 In support of the claim that the applicant is not a fit and proper person to hold an authority as the driver of a public passenger vehicle, the respondent relied on the eight infringement notices issued to the applicant during the period 12 November 1998 to 2 November 2005 and the further alleged breach on 24 December 2005. In oral submissions the respondent’s representative argued that the applicant has been driving a passenger transport vehicle for a relatively short period of time, during which he has received two formal written warnings about his conduct and a show cause notice. The applicant’s conduct in soliciting fares had continued, including after he was granted the stay.

63 The applicant’s submissions were based on two arguments: first, that the original decision maker had taken into account irrelevant considerations in having regard to alleged offences unrelated to the driving of any vehicle, and secondly, that the applicant had already been found guilty of the offences and to cancel his authority would amount to double jeopardy. At the hearing on 2 March 2006 the applicant’s representative indicated that the applicant had difficulty in communicating in English. Accordingly, the Tribunal arranged for a Macedonian interpreter to be present at the hearing on 17 May 2006 should the applicant wish to give oral evidence. At the hearing on 17 May 2006 the applicant’s representative stated that the applicant was not contesting the infringements. The applicant did not give oral evidence.

64 In his letter dated 13 February 2007 the respondent’s solicitor stated that the respondent wishes to put further material before the Tribunal, “being further acts of alleged misconduct by Mr Vasilevski”. Section 73(1) of the ADT Act sets out the procedural powers and obligations of the Tribunal, which include the obligation in s73(5)(b) to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings. In considering whether to re-open the matter for further evidence, there are two relevant matters. First, the obligation imposed by s63(1) of the ADT Act on the Tribunal to decide what is “the correct and preferable decision” applies at the time the Tribunal’s decision is made: YG & GG v Minister for Community Services [2002] NSWCA 247. The Tribunal must do so on the material available at the time it makes its decision, and not merely the material before the original decision-maker: Frugtniet v Administrative Decisions Tribunal (Appeal Panel) [2005] NSWCA 257. Secondly, the requirements of procedural fairness do not allow me to disregard material that is credible, relevant, and significant to the decision that is to be made: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72. The respondent has asserted that there are “further acts of alleged misconduct by Mr Vasilevski”. The applicant is entitled to have the opportunity to respond to this.

65 The determination of this review has been delayed by the need to consider the decisions of the Court of Appeal in Skiwing and 2UE. In view of the conclusions I have reached concerning the constitutional arguments put by the applicant, it is necessary that I consider the substantive issues, which includes consideration of the applicant’s record of misconduct. Proper determination of the issues requires consideration of all the material available at the time of decision, including material which may not have been available at the time of the hearing. The matter is to be re-listed for directions on a date to be fixed.

Order

The matter is set down for directions on Tuesday 13 March 2007 at 10:30 am.

Actions

Download as PDF Download as Word Document

Citations

Vasilevski v Ministry of Transport [2007] NSWADT 48

Most Recent Citation

Vasilevski v Ministry of Transport (No 2) [2007] NSWADT 180

Cases Citing This Decision

1

Vasilevski v Ministry of Transport (No 2) [2007] NSWADT 180

Cases Cited

13

Statutory Material Cited

8

Trust Company of Australia Ltd v Skiwing Pty Ltd [2006] NSWCA 185

Attorney-General (NSW) v 2UE Sydney Pty Ltd [2006] NSWCA 349

New South Wales v Commonwealth [2006] HCA 52

CITATION:	Vasilevski v Ministry of Transport [2007] NSWADT 48
DIVISION:	General Division
PARTIES:	APPLICANT Bogoja (Bob) Vasilevski RESPONDENT Ministry of Transport
FILE NUMBER:	053428
HEARING DATES:	02/03/06, 17/05/06
SUBMISSIONS CLOSED:	13 February 2007
DATE OF DECISION:	2 March 2007
BEFORE:	Pearson L - Judicial Member
CATCHWORDS:	Bus driver - cancellation of authority - Passenger Transport Act - bus driver - cancellation of authority
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Airports (Control of On-Airport Activities) Regulation 1997 (Cth) Airports Act 1996 (Cth) Commonwealth of Australia Constitution Act 1900 Commonwealth Places (Application of Laws) Act 1970 (Cth) Judiciary Act 1903 (Cth) Passenger Transport (Bus Services) Regulation 2000 Passenger Transport Act 1990
CASES CITED:	Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 Attorney General v 2UE Sydney Pty Ltd & Ors [2006] NSWCA 349 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 Farquharson v Director General, Department of Transport [1999] NSWADT 53 Frugtniet v Administrative Decisions Tribunal (Appeal Panel) [2005] NSWCA 257 Hughes & Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 Saadieh v Director General, Department of Transport [1999] NSW ADT 68 Trust Company of Australia Ltd (trading as Stockland Property Management) v Skiwing Pty Ltd (trading as Café Tiffany’s)[2006] NSWCA 185 YG & GG v Minister for Community Services [2002] NSWCA 247
REPRESENTATION:	APPLICANT P Clough, solicitor RESPONDENT A Wozniak, solicitor
ORDERS:	The matter is down for directions on Tuesday 13 March 2007 at 10:30 am.