| CATCHWORDS Administrative Decisions (Judicial Review) Act - suspension of pilots licence pursuant to Air Naviagation Requlations - 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 requlations - regulation-making power relating to suspension of licence conditional on riqht to appeal being provided - whether implied amendment of Air Naviaation Act by Administrative Appeals Tribunal Act. Administrative Decisions (Judicial Review) Act 1977 Administrative Appeals Tribunal Act 1975 Air Navigation Act 1920 ir Navigation Requlations MICHAEL JOHN ROBERTS v. THE SECRETARY TO THE DEPARTMENT OF AVIATION N.S.W. No. G. 73 of 1984 St. John, J. Eydney 9 Auagust 1984 - =T> IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. 73 of 1984 ) GENERAL DIVISION ) BETWEEN: MICHSEL JOHN ROBEPTS Applicant AND THE SECRETARY T9 THE DEPARTMENT OF AVIATION Respondent ORDERS CORAM: ST. JOHN, J. DATE: 9 AUGUST 1984 PLACE: SYDNEY THE COURT ORDERS THAT: l. The application for review 1s dismissed. ty The declarations sought are refused, IN THE FEDERAL COURT OF AUSTRALTA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. 73 of 1984 ) GENERAL DIVISION ) BETWEEN: MICHAEL JOHN ROBERTS Applicant AND: THE SECRETARY TO THE DEPARTMENT OF AVIATION Respondent REASONS FOR JUDGMENT COPAM: ST. JOHN. Jo. DATE: 2 AUGYIST 1384 PLACE: SYDNEY On 7 August 1982 the applicant. Michael John Roberts, was the pilot of a helicopter which crashed resulting in the death of three passenders. He seeks review of a decision suspending his licence to flv 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 py 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 Deleaate 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 varlation or suspension of the applicant's said licences. That letter recited various alleqaticns of fact about the crash which were stated to be contraventions of various A.N.Rs. The applicant was aiunvited t) show cause why his licences should not ke varied or sucpended. The letter concluded with a etatement to the effect that the previous suspension of the licenses was continued by virtue of A.N.R. 2870721, On 22 September 1982 the applicant was charaed by State police on three counts of manslaughter. By a letter dated 11 October 1982 the Delegate of tne Secretary to the Department extended the time during which the applicant could show cause to 2? March 1983 or until the result of the charges was known, whichever was the earlier. On 21 Octoper 1982 the licenses of the applicant expired by effluxion ar time. On tu March 1982 the manslaughter charqges vere dismizsed. On 23 April 1983 the applicant wrote to the Derartment asking rIcr " .assurances that mw? answers (in showing cause) will not be used 1n any further legal proceedings that mav be contemplated by the Department". The FPeqicnal Director replied to the etfect that such assurances would not be aiven and that the Crown Zolicitor weuld be instructed to prepare informations alleqing breaches of A.N.Rs. by the applicant and that a request for extension of time to show cause until those procecdings were concluded could be made. 0) In July 1982 the applicant sought renewal of the expired commercial pilots licence and such renewal was aranted. On 1? Julv 1983 a Departmental officer -'vrote purporting fo suspend that licence pending an investiaation. By a letter dated 28 July 198? the Department repeated in large part what was stated tn the letter dated 7? September 1982 and ainformed the applicant that the suspension remained in force until the '...exprration of the time within which you may show cause..." pursuant to A.N.R. 258. On 2 September 1993 the applicant's solicitors were informed by the Department that the "show cause" period was extended tc the conclusion of the proceedings referred to in the letter of 27 May 1282. Such proceedings resulted in the applicant being committed for trial on same charaez, The trial is in for uw mention only at the next sittinvs of the District Court of New south Wales at Cooma. A hearina 15 apparently unlikely during those sittings. By a letter dated 10 Novemper 1982 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). 4. (2) That the 'Secretary had consented to the charges referred to in the Department s letter of 28 July 1983. (2) Because of the consent referred to in (2) above the Secretary could not suspend or cancel the licence as such action would presume quilt which the Secretary could nat do. On 2 December 1982 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 16a) and 'c) trom and includina 29 November 1982 to and iuncluding 29 November 1°85. The Secretary expressed himself as satisfied that certain A.N.Ps. had been cantravened. On L September 1983 a rzalicitor tor the applicant had a. telephone conversation with an cfficer of the Denartment in which that officer said that the suspensicn of the renewed commerczal pilots licence was necessary because the Department had no grounds to refuse the licence renewal application. The applicant seeks: - CL) an order that the decision to suspend made 2 December 1992? be auashed purztuant to the Administrative Decizions 'Judicial Peview! Act 377; and (2) an declaration that all interim or oather Tuspensions of the commercial pilots licence from 2? September 1932 were invalia. The primary submission by counsel for the applicant 1s 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 wrovides in £.3A that the ratification. en behalf of Australia. of the Chicaqo Convention on International Civil Aviation. 13 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 requlation-making power in the A.N. Act, 2.06. specifically includes safety considerations (S.26(2)(h)). The A.N.Rs. place qreat eamphasis upon caftcty considerations. The relevant A.N.Rs. for present ourposes arein "Suspension of licence or certificate pending investigation 257. (1) Where the Secretary has roasen to think that there may exist fact? or circumstances that would wustity the variation. Tuspension or cancellation of a licence or certificate ana ground specified in the next Tucceeding requlaticn. the Secretar7 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 reaulation. (2) Where the Secretary suspends a licence or certificate in pursuance of the last preceding sub-requlation. he shall forthwith investiaate the matter, and the suspension shall cease upon the completion of the investigation or at the 6. expiration of twenty-eight days from and includina the date on which the suspension took effect. whichever 1s the earlier, but without prejudice to the powers of the Secretary under the next succeeding requlation. (3) Where-- (a) the Secretary. upon the completion of an investigation under this requlation., gives to the holder of the licence or certificate a notice under sub-requlation 258(3); and (pb) the suspension of the licence or certificate under this requlation had not ceased before the completion of the iunvestiqation, 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 litence or certificate should not be varied. suspended or cancelled under requlation 258." "Variation, suspension or cancellation of licence or certificate 258. (1) Subject ta this requlation, the secretary may. By notice in «riting served cn the holder of a licence or certificate, vary, suspend or cancel the licence or certificate where he 15 satisfied that one cr more of the fo2llawind 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 Pequlations, uncludinag these Fequlations as un Torce by virtue of a law of a State: (b) that the holder of the licence or certificate fails to satisfy, or to continue to #atisfv., any requirement prescribed by. or specified under. these Pequlations in relation to the obtaining or holdina 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 efficrent navigation or operation of an aircraft: (d) that the holder of the licence or certificate 1s not a fit and proper person to have the responsibilities and exercise and perform the functions and duties cof a holder of such a licence or certificate: ar (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 15 contained in Air Naviqation Orders. (2) A notice under the last precedind sub-requlation shall contain fuli particular: of the facts or circumstances that constituted the around or grounds for the variation, suspension or cancellation of the licence or certiticate. as the case may be. (3) Before taking action under this regulation to vary. suspend or cancel a licence or certificate. the Secretary thall-- {a) give notice, in writing, to the holder of the licence or certificate of the facts and circumstances that, in the opinion of the fZecretary. warrant consideration being given to the variation, cuspension or cancellation of the licence or certificate under this) requlation: and 'bh) allow the holder of the licence or certificate to show cause within such fime as the Cecretary specifies ain that notice, why the licence cr certificate ehould not be varied. suswended or cancelled under this requlation. 8. (4) The time specified by the Secretary in the notice under sub-requlation (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 requlation 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 aagrieved by -- (a) a refusal of the Secretary to grant a licence or certificate 'not being a refusal in pursuance of sub-requlation 729 (2)): or (b) the variation or cancellation of a licence or certificate, or the suspension of a licence or certificate etherwise than under regulation 256 or 267 of these Requlations, may elect e1ther -- 'e) to have the matter submitted for review to a board of review: or ecified cou 'd) to arpeal to a seo r 1on of th against the decis Secretary." iD ct "Institution of proceedings 317. (1) Proceedings for the commitment of a person for trial on indictment for an offence against these Requlations shall not be instituted except with the consent in writing of the Secretary. (2) Proceedinas for the summary prosecution of an offence against these Reaulations shall not be instituted except with the consent of the Secretary or a person authorized by the Secretary, yvomeiting vwnder his hand, to give such congents." The fact that the Secretary to A.N.R. 257 and proceedings for the applicant to and judge in the same principles of Simple. of the duty imposed upon duty to suspend in Secretary is the prosecutor for the purposes of that legislature has clearly of natural justice, Applicant's cause would involve show cause to the audi alteram partem no value and therefore submission, in my view. oprertunity to show cause on the facts in this self -incriminating that the riaht to authority, nor was any any way to support the A.N.R. breach of certain A.N.Rs. cause, thereby breaching one natural justice. If he is a orasecutor in him by appropriate ca expressed an intention that in those circumstances, counsel self-incrimination the pursuant to A.N.R. 1s declined, as admissions be show cause both suspended pursuant 258 and consented to criminal 1s relied upon by submit that the Secretary 15 both prosecutor of the The answer 1s, to my v1ew, the relevant sense by virtue A.N.R. 217 he has alsa the Assuming that the ie) es. rule, the that rule does not apply. submitted that because showing offer to him to 257 and A.N.R. 258 was contrary rule of natural wastice and was of a breach of that rule. That does not have merit. if 1t was on eccasions case. in order that exposure to avoided. it cannot be said did not exist, I know of no referred to by counsel. wnich would qo submission. 10. 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 bv operation of A.N.R. 258 "to have the matter submitted to a board of review; or to appeal toa specified court...": A.N.R. 259. By A.N.R. 265, any statement By a witness to a court or board of review wa made uh inadmissible in evidence against him in civil or criminal proceedinas. From this it is clear that the legislature had provided a solution for such a dilemma as the applicant found himself ain in this case. Commercial eilot licences are important property rights; often an only means of livelihood. The combined effect of 3,26 and '¢chedule 1 of the A.A.T. Act is to abroaqate the right of review by a board of ceview cf a decision made wursuant to A.N.P. 258. The A.A.T. Act contains no provision for exclusion of use of evidence such as in A.N.R. 265. Section 223 of the the A.M. Act provides that when requlations are made relating to issue of licenses there should be provision for appeal on, inter 1112, suspension to a particular court or one of two courts, Counsel for the applicant has submitted that A.MN.R. 258 ais 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 ll. right of appeal toa court provided for in §.28. The Administrative Appeals Tribunal 15 not a court. The regulation-making power 1s subtect to a condition and, if that condition 18s not fulfilled there is no power unless the condition is observed, the argument continues. It could well be that there was a ledislative oversiaht in not providing for review in a situation where the licensee would not be exposed to use in criminal charqes aqainst him of the evidence he gave. The inordinate delay in havina criminal charges tried in New Couth Wales means that a licensee mav have to wait years to have his entitlements to revocation of a suspension of a licence determined. Section 28 of the A.N. Act 1s couched in the alternative; an appeal 1s to be provided to a4 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 15 to be found in the words of $.2€(1) and Schedule 1 of that Act. That section is in the following terms: - "The provisions of Schedule 1 have effect according toa their tenor notwithstanding anvthing contained in any other provision of this Act (other than sub-section 25(2)) or im any provizion of any other enactment in force at the commencement af this Act," "Enactment" includes regulations: &.2 of the A.A.T. Act. The relevant words of Schedule 1 to that Act are:- "PART III--AIR NAVIGATION PEGULATIONS 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 requlation 254 or 257 of those Regulations. 3. (2) A person 1s not entitled to-- (a) have amatter to which a decision relates submitted for review ta a board of review: or (b) appeal against a decision, in accordance with requlation 259 of the Air Navigation Requlations if an appiication may be made to the Tribunal in respect of the decision by virtue of sub-clause (1)." The appeal referred to inA.N.R. 259 a5 "to appeal to a specified court against the decision of the Secretary". Under the heading "Jurisdiction of Courtze ta heac and determine appeals", A.N.R. 264(1) provides that "The Cupreme Court of each ftate 15 invested with federal dwarisdiction. and qurisdiction 1s conferred on the Commonwealth Industrial Court -.-- to hear and determine appeals under requiation 7259 of these Reaqulations". The problem posed is that if the A.A.T. Act effectively denies the riaght of appeal to a court and substitutes an appeal to the Tribunal what 1s the status of requlations made pursuant to a requlation-making power which 13. is conditional as to the content of the requlation 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 15 removed, 15 that requlation still valid? The answer 1s to be found in the words of S.26 of the AWA.T. Act. Althouaqh 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 £9 suspensions pursuant to A.N.R. 258, are indications that the legislature appreciated the effect cf Schedule 1 in relation to appeals. The absence of any specific reference to 3.29 of the A.N. Act ta provokes the inference 1t was overlooked. The absence of anv reference in the Schedule to the A.N.R. 265, an imvoortant corollary to a right of appeal is not referred to or provided for in the A.A.T. Act. This A.N.R. 265 13 left standing with nothing to which 1t 1s applicable left. Courts have always been careful to confine delegated leqislation within the limits set by the legislature. To repeal requlations and thereby impliedliv amend the regulation-making power without specific mention tends 9 induce tne beiief that the leqislature has overlooked the 14. serious consequences of its action. However, the words in $8.26 of the A.A.T. Act are in the broadest terms and are desiqned as a blanket amendment of all previous legislation, primary or delegated. I therefore. on balance, come to the view that there was a leaislative intention to impliedly amend £.28 of the A.N. Act despite its drastic consequences. The application for review 1s dismissed and the declarations sought are refused. I certify that this and the thirteen (12) preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice St. John. Associate: Bok, Date: 9 August 1984