v e¢ JUDGMENT No. ? S3/31. CATCHWORDS ADMINISTRATIVE LAW - Navigation Act - decision of Marine Council that applicant be considered unsuitable for engagement as a seaman - whether decision is a decision "under an enactment" ~ natural justice Administrative Decisions (Judicial Review) Act 1977 (Cth) s.3 Navigation Act 1912 (Cth) ss.6c, 45A, 45B, 67, 100, 115, 424 DAVID LLOYD v. THE MARINE COUNCIL (FEDERAL DEPARTMENT OF OTHERS ~=~~—~CO——C—.. ..'.S—COCO——— TRANSPORT) AND OTHERS NSW G482 of 1986 Davies J. 23 December 1987 Sydney A aN KECeIVED & 15 JANI987 - FEDERAL COURT OF fe / PRINCIPAL OX REGISTRY AY "7 <N ~ . Fa x AS e Sse Uh a eee) icn' * IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G482 of 1986 GENERAL DIVISION ) BETWEEN: DAVID LLOYD Applicant AND: THE MARINE COUNCIL (FEDERAL DEPARTMENT OF TRANSPORT) First Respondent AND: CAPTAIN J.E. HODGSON Second Respondent AND: M. DAHLSTROM Third Respondent AND: P, EUTROPE Fourth Respondent AND: CAPTAIN B. McBAIN Fifth Respondent AND: CAPTAIN I. STEVERSON Sixth Respondent AND: K. McCLEOD Seventh Respondent AND: K. COURT Eighth Respondent AND; M. BOORMAN Ninth Respondent AND: P. SWEETENSEN Tenth Respondent ig CAPTAIN G. SMETHURST Eleventh Respondent AND: THE HONOURABLE PETER MORRIS Minister of Transport Twelfth Respondent AND: COMMONWEALTH OF AUSTRALIA Thirteenth Respondent CORAM: Davies J. DATE: 23 December 1987 PLACE: Sydney MINUTES OF ORDER THE COURT ORDERS THAT: 1. The decision of the Marine Council of 18 September 1986 be set aside. 2. The respondent pay the costs of the applicant. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) GENERAL DIVISION ) BETWEEN: AND: lz0 AND: No. G482 of 1986 DAVID LLOYD Applicant THE MARINE COUNCIL (FEDERAL DEPARTMENT OF TRANSPORT ) First Respondent CAPTAIN J.E. HODGSON Second Respondent M. DAHLSTROM Third Respondent P. EUTROPE AND: Fourth Respondent CAPTAIN B. McBAIN Fifth Respondent CAPTAIN I. STEVERSON AND: Sixth Respondent K. McCLEOD Seventh Respondent K. COURT Eighth Respondent M. BOORMAN Ninth Respondent P. SWEETENSEN Tenth Respondent CAPTAIN G. SMETHURST Eleventh Respondent AND: THE HONOURABLE PETER MORRIS Minister of Transport Twelfth Respondent AND: COMMONWEALTH OF AUSTRALIA Thirteenth Respondent CORAM: Davies J. DATE: 23 December 1987 PLACE: Sydney REASONS FOR JUDGMENT This is an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") for an order of review with respect to a decision of the Marine Council of 18 September 1986 pursuant to s.45A(9) of the Navigation Act 1912 (Cth) ("the Act") that the applicant, an electrical engineer, be considered unsuitable for engagement under the Act until 18 December 1986. The Act deals in several ways with breaches of discipline by seamen. Section 100 specifies certain offences and fines which may be imposed by a court upon conviction. Section 115 provides for the punishment by the master of a ship of breaches of discipline. The section provides, inter alia:- "115. (1) The master of a ship shall not enter into an agreement with a seaman under section 46 unless the agreement includes a provision in such form as is prescribed that, if the seaman commits a breach of discipline specified in that prescribed form, that breach shall be a breach of the agreement and the master may impose on the seaman a fine of the amount specified in that prescribed form in relation to that breach of discipline. (2) The master of a ship shall not impose a fine on a seaman in respect of a breach of discipline except after proper inquiry. (3) Where the master of a ship imposes a fine ona seaman in respect of a breach of discipline, the Master - (a) shall enter, or cause to be entered, in the official log-book of the ship - (i) a record of the breach of discipline and of the imposition of the fine; and (ii) particulars of any statement made by the seaman with respect to the breach of discipline to the master or any other officer of the ship; (4) Where the master of a ship imposes a fine on a seaman, the master shall deduct the amount of the fine from the wages of the seaman. (5) Where the master of a ship imposes on a seaman a fine in excess of $4, the seaman may, within the prescribed period and upon payment of the prescribed fee, lodge with a superintendent at a prescribed port an objection in writing against the fine and the superintendent may, upon receipt of the objection and after inquiry, disallow the fine and refund to the seaman the prescribed fee. (6) Upon the discharge from the ship of a seaman upon whom a fine has been imposed by the master under the agreement, a proper authority at a port may, if he thinks it proper so to do, disallow the fine." The master of the ship has a further function in relation to discipline for s.67(1) of the Act provides that, upon every discharge of a seaman effected before a superintendent, the Master shall make in writing a report of the conduct, character and qualifications of the seaman discharged, that is to say a report of character. A report of bad character or conduct on the part of the seaman is known as a bad report. 4. Other provisions with respect to discipline appear in ss.45A and 45B of the Act. Section 45A provides that the engagement at a port in Australia for seamen is subject to the approval of the superintendent at the port, which approval may be refused in certain circumstances. Section 45B provides for a review by the Australian Conciliation and Arbitration Commission of a refusal by a superintendent to approve an engagement. Relevant provisions of s.45A read:- "(1) The engagement, at a port in Australia, of a seaman to be entered on board a ship (not being an engagement to which section 47 applies) is subject to the approval of the superintendent at that port, but the superintendent shall not refuse to approve of the engagement except in accordance with this Act. (2) Where the approval of a superintendent of the engagement of a seaman is sought and - (a) the conduct or character of that seaman has, in 3 or more reports furnished under section 67 within the period of 5 years immediately preceding the date on which the approval is sought, been shown as 'bad'; and (b) the approval is sought within 6 months after the date of delivery of the most recent of those reports, the superintendent may refuse to approve the engagement of that seaman. (3) Where the period between the dates of delivery of the last 2 of the reports referred to in sub-section (2) exceeds 2 years and the seaman in respect of whom those reports were delivered served regularly as a seaman during that period of 2 years, a superintendent may approve the engagement of that seaman. (9A) A superintendent shall refuse to approve the engagement of a person who, in the opinion of the superintendent, does not possess a knowledge of the English language sufficient to enable him to understand fully orders that may be given to him in the performance of his duties." 5. (10) Where the character of a seaman is such, or the conduct of a seaman has been such, that the seaman is, in the opinion of a master of a ship, unsuitable for engagement as a seaman, the master shall report the circumstances to a superintendent and, if practicable, inform the seaman that he has made the report. (11) A superintendent shall be deemed to have approved the engagement of a seaman when the superintendent attests the agreement between the seaman and the master under section 46." Apart from these specific grounds upon which a superintendent may refuse to approve an engagement, a superintendent has no general discretion with respect to the engagement of a seaman. Sub-section 45A(1) provides that a superintendent shall not refuse to approve of the engagement except in accordance with the Act. The final provision touching upon discipline to which I need refer confers a power upon the Marine Council. Section 45A(9) provides:- "(9) Where the Marine Council, or a majority of the members of that Council, has advised the Minister that the character of a person is such, or the conduct of a person has been such, that that person is, during a period specified in the advice, unsuitable for engagement as a seaman, a superintendent shall, during that period, refuse to approve the engagement of that person as a seaman." It is a necessary inference from this provision that the Marine Council has statutory authority under s.45A(9) so to advise the Minister. It is the exercise of that authority which is the subject of these proceedings. 6. The Marine Council is established under s.424 of the Act, which provides that it shall consist of an officer employed in the Department, four members representative of shipowners, a member representative of deck officers, a member representative of engine-room officers and two members representative of seamen other than officers. Apart froma function conferred on the Marine Council by s.424(6) and the power to be implied from s.45A(9), the function of the Council is set out in s.424(5) which provides:- "(5) The Marine Council shall inquire into and report to the Minister upon any matter arising out of or relating to this Act which the Minister refers to the Council for advice." The only matter referred to the Marine Council under this provision has been a reference for advice with respect to the suitability of persons for engagement as seamen, the matter with which s.45A(9) is concerned. The Council has, with the approval of the Minister, adopted the following policy with respect to its advice on such a matter:- "1. For the purposes of a reference from the Minister made pursuant to sub-section 424(5) of the Navigation Act 1912 and in line with the intentions of that Act, under which it is constituted, Marine Council's first care will be for the well-being of the Australian shipping community. Within the context of that general duty Marine Council will take account of the following considerations: - the safety of life at sea - the maintenance of good order and harmonious relations on board ship ~ the welfare of ships' crews - the protection of minors in training - the interests of the Australian shipping industry and its clients. In assessing the suitability of a person for engagement as a seaman, Marine Council may consider any matter relating to that person's character or conduct which may affect his suitability for employment as a seaman. Conduct which may be taken into account includes: - offences under the Navigation Act 1912 and subordinate legislation - breaches of discipline specified in the form prescribed by regulation 15 of the Navigation (Master and Seamen) Regulations for the purposes of section 115 of the Navigation Act - conduct leading to the making of a qualified report as to conduct and character under section 67 of the Navigation Act 1912 - conduct leading to the making of a qualified report as to conduct and character in ships other than ships registered in Australia - the following activities, wherever occurring: : acts of violence, or threats of violence : use of weapons dealing in, possession or use of illegal drugs smuggling : sexual offences against minors abuse of alcohol. In considering an offence or misconduct occurring on shore, Marine Council is to be satisfied that there is a reasonable likelihood of a repetition of the action on board ship before concluding that the person concerned 1s unsuitable to engage as a seaman. Council will at all times be mindful of the special circumstances of seagoing life and work and, in particular 8. - that the sea is a potentially dangerous environment - that an emergency requiring action on the part of a ship's crew may arise at any time - that the lives of a ship's crew are mutually dependent upon their alertness and judgment - that unlike employees of a land-based enterprise, seamen once engaged are confined together, on duty and off, for long periods of time. 5. It is not Council's function to punish. 6. It is not Council's function to consider matters relating to the professional or technical competence of seamen. 7. Marine Council will take into account moral issues only to the extent that they are relevant to a person's suitability in terms of this policy. 8. In the interests of justice, equity and consistency Marine Council will, in its proceedings, follow the approved Rules of Procedure. 9. Marine Council will in appropriate cases have regard to action to assist the rehabilitation of persons declared unsuitable." On 14 June 1986 at about 9:15 p.m., on the vessel "Australian Purpose", Mr Lloyd, who was an officer, became involved in a dispute and scuffle with the chief cook, Mr R. Marks, who was not an officer. The scuffle commenced in the officers' bar and concluded on the deck outside the bar. On the following day the master of the vessel made an entry in the ship's log, of which the following is part:- "Chief Cook, Mr. R. Marks Art no 32 knocked on the officer's bar door, entered the bar and complained of a banging noise from the officers' bar disturbing his sleep on his cabin located on the next deck directly below the bar. An argument took place beteen Ch. Cook Mr R. Marks and Electrical Engineer Mr. D. Lloyd Art no 12 which resulted in Mr Lloyd pushing Mr Marks 9. from the bar through the door into the alleyway. This incident was witnessed by Chief Engineer Mr. A. Noble Art No. 7, 2nd Engineer Mr. B. Brown Art No. 8, and Officer Mr. E. Barron Art. No. 3, 3rd Officer Mr. B. Jacques Art No. 4, 4th Engineer Mr J. Jones, Art No. 10, Chief Steward Mr. W. Booth Art No. 28. Mr Lloyd claimed that after Mr. Marks had passed through the door landing on his back in the alleyway, Mr Marks kicked him 1n crotch whereupon Mr. Lloyd punched Mr. Marks in the face. There were no witnesses to the alleged kicking and punching. The 3rd Engineer was a witness to the events. However he stated at the time of the logging that 'I didn't actually witness the pushing' and he was subsequently excluded as a witness. At the time of this incident I was ashore and did not deal with the matter until my return at 2330. I visited Mr Mark's cabin and found him lying in his bunk with several bruises and abrasions on his back, complaining of pain in his lower spinal region which he claimed was caused by a kick from Mr. Lloyd. Mr. Lloyd insisted on the police being called. The SUA {Seamans' Union of Australia] Delegates insisted that a doctor also be called for Mr. Marks. The agent was asked to make these arrangements which resulted in 2 police officers and the local ambulance arriving at the ship (since no doctor was available) at approximately 0100/15th Mr. Marks was briefly interviewed by the police and said that he did not want to press any charges against Mr. Lloyd, but wished to leave the matter in the Master's hands. He was taken to Wickham Hospital by ambulance. S.U.A. delegates advised that they refused to sail the ship if Mr Lloyd remained on board. The ship was therefore unable to sail at the scheduled time of 0200/15th and the agent proceeded to advise A.N.L. and all interested parties of the situation. As a consequence of the above events Mr. Lioyd 1s hereby fined the sum of ten dollars ($10)" There was a further entry in the log setting out Mr Lloyd's comments on that entry. I need not set out Mr Lloyd's lengthy explanation of the events which were recorded in the log. 10. As set out in the log, Mr Lloyd was fined $10.00 by the Master with respect to the incident. After discussion with the Master and no doubt to avoid further difficulties, he took immediate leave and left the ship. The Master did not make a bad report and did not make a report under s.45A(10). Subsequently, Mr Lloyd lodged an objection against the fine pursuant to s.115(5). These proceedings do not concern that objection. On 17 July 1986, the Chairman of the Marine Council wrote to Mr Lloyd in these terms:- "It has been reported that you were involved in an incident with Chief Cook Mr R Marks on board "AUSTRALIAN PURPOSE" on 14 June 1986. In view of this alleged misconduct on your part the question of your suitability for employment in Australian ships is to be considered by the Marine Council in accordance with its terms of reference and its obligations under the Navigation Act 1912. Should the Council, after due deliberation, determine that you are not suitable for such employment it will be its duty to advise the Minister of State for Transport accordingly and to specify a period during which you will be considered to remain unsuitable. Under the Act, the effect of that advice will be that for the period specified you will be unable to engage in ships to which the crewing provisions of the Act apply, that is for all practical purposes Australian registered and/or manned ships engaged in interstate Or overseas voyages. Full details of the constitution and functions of the Marine Council and effect of its decisions are attached for your information. It would be in your interests therefore to submit as soon as possible a written explanation of the incident reported above together with any other information which you may consider useful and relevant. Should you require advice in the preparation of a reply, an official of your Union or a Superintendent of a Mercantile Marine Office will be able to help you. 11. A detailed list of the material which, together with any submission you may make, will be taken into account by the Council in determining your suitability is attached. If you wish to view these documents you should advise the Secretary of the Council as soon as possible and preferably by telephone (062-687594) when arrangements will be made for copies to be available for your inspection at a convenient Mercantile Marine Office." The documents attached included the entry in the log book, statements from Mr Marks, a medical certificate with respect to Mr Marks, a statement from the Chief Steward, and a short formal report by the superintendent of the port of Walcott. On 31 July 1986 Mr Lloyd's solicitors, Messrs Turner Freeman, wrote to the Chairman requesting particulars of the misconduct alleged. The Chairman did not respond directly to Messrs Turner Freeman but wrote directly to Mr Lloyd in these terms:- "You will be aware that solicitors, Messrs Turner Freeman have written to me regarding my letter to you of 17 July 1986. Their letter will be placed before the Marine Council for consideration at its next meeting, currently scheduled for 21 August 1985. In the meantime, rather than attempting at this stage to respond in the narrow sense to the questions on further and better particulars put by your solicitors and which may not be altogether apt in the present situation it would perhaps be more helpful 1f I explained in fuller detail the reason for the Marine Council's interest in this matter. You will of course be aware of the constitution and functions of the Council and of the legislation under which it operates as full details were given in the attachment to my letter. Against that background, the position is as follows: 1. It has been reported that on 14 June 1986 on board the ship 'Australian Purpose' you assaulted a Mr Ronald Marks. The material which forms the basis of that report has been made available for your inspection. 12. 2. In determining, pursuant fo sub-section 45A(9) of the Navigation Act 1912, whether in the light of that report you are suitable for engagement in Australian ships the Marine Council will have regard to terms of reference approved by the Minister for Transport. A copy 1s enclosed for your information. 3. Under these terms of reference physical assault constitutes misconduct of a kind which may indicate that the person concerned 1s unsuitable to engage. 4. You have been invited to submit an explanation of the incident with any other information you may consider useful and relevant. Your reply is awaited. I am copying this letter to Messrs Turner Freeman." On 9 September 1986 Mr Lloyd wrote to the Chairman providing an explanation of the circumstances of the alteration and expressing extreme regret over the occurrence. Mr Lloyd said that all actions were in the heat of the moment and it was not his intention at any stage to cause injury to Mr Marks. For reasons which have not been explained, statements which Mr Lloyd obtained from other officers supporting his version of the incident were not forwarded to the Marine Council by either his solicitors or the Australian Institute of Marine and Power Engineers to whom Mr Lloyd had supplied them. On 18 September 1986, the Marine Council had before it the material I have mentioned and the correspondence. In his evidence to the Court, the Chairman of the Council, Captain " J.E. Hodgson said that Mr Lloyd's personal file "was available". However it was not referred to among the documents listed in the minutes of the Council. 13. After consideration of the matter , the Council decided to advise the Minister that Mr Lloyd was considered unsuitable for engagement as a seaman until 18 December 1986. The Marine Council thereafter so advised the Minister. In a letter of 26 September 1986 to Mr Lloyd informing him of the decision, the Chairman of the Council wrote:- "After careful consideration the Council concluded that the material before it clearly showed that, whatever may have ensued in the alleyway outside the officers' bar, you had initiated the physical contact by taking hold of Mr Marks and ejecting him from the room. In the Council's view, any verbal provocation you may or may not have received did not justify this action. The Council further considered that you were not entitled to take it upon yourself to remove Mr Marks from the bar. In this connection I am directed to advise you that while certain areas in a ship may be allocated by the shipowner for the use of certain categories of crew member no proprietary rights are conferred thereby. Accordingly, the question of trespass or similar concepts does not arise. The Marine Council considers assault to be unacceptable conduct in any crew member and normally imposes a period of suspension in such cases. In your case and taking into account all the circumstances, including your expressions of regret over the incident, it was agreed that a suspension of three months would be appropriate. The final decisions of the Council was that you are to be considered unsuitable for engagement pursuant to sub-section 45A(9) of the Navigation Act 1912 until 18 December 1986." Mr P. Roberts, of counsel, who appeared for the Marine Council, submitted that this Court lacked jurisdiction to make an order of review with respect to that decision as the actions of the Marine Council did not constitute a decision for the purposes of the ADJR Act. The word 14. "decision" is defined in s.3 of that Act. It is unnecessary for me to set out those provisions as they are well known. As I understood Mr Roberts, and I hope I do him no injustice, he put the view that there was no decision-making power vested in the Marine Council pursuant to s.45A(9) or to s.424(5). He submitted that the Marine Council was simply a body which advised the Minister pursuant to references forwarded to it by the Minister under s.424(5), that the only reviewable decision would be a decision of a superintendent refusing to approve an engagement of Mr Lloyd, a step which had not occurred. Mr Roberts submitted that the decision of the Marine Council did not become a decision by virtue of s.3(3) of the ADJR Act because the advice of the Marine Council was given to the Minister, who had no relevant decision-making power, not to the superintendent who was the relevant decision-maker. Mr Roberts further submitted that any decision was not a decision under an enactment. In my opinion, the decision of the Marine Council of 18 September 1986, implemented by subsequent advice to the Minister, was a decision under an enactment for the purposes of the ADJR Act. It was a decision in the ordinary denotation of that term. Although the decision was expressed to the Minister as a recommendation, that was no more than the form of decision. No consideration by or step by the Minister was required. The decision of the Marine Council communicated to the Minister in terms of advice was a decision under s.45A(9) of the Act and was given statutory effect by that sub-section. For the decision to be effective, to be binding in law, it was 15. not necessary that there be a further decision by a superintendent refusing an engagement. The decision of the Council took immediate effect upon its communication to the Minister. Its effect was to preclude the grant of approval by a superintendent. The decision was "the ultimate or operative determination" the term adopted, for example, by Deane J. in Director-General of Social Services v. Chaney (1980) 31 A.L.R. 571 at 591, and by Lockhart J. in Riordan v. Parole Board of the Australian Capital Territory (1981) 3 A.L.D. 144 at 150. For these reasons, I am satisfied that the Court has jurisdiction to make an order of review with respect to the decision of the Marine Council should it think it proper to do so. Although much of the material before the Court went to the issue of natural justice, it is convenient to consider first what were the issues which the Marine Council had to consider. The first issue for the Council was whether by reason of his conduct or character Mr Lloyd was unsuitable for engagement as a seaman. A second issue was during what period that unsuitability would be likely to continue. A third issue was the period to be specified in the advice. Many disciplinary authorities have power to consider misconduct of many kinds and, in the exercise of their disciplinary powers, to make orders by way of debarment, suspension, fine or reprimand. The Marine Council has but the one power. That is to debar for a specific period, by reason 16. of unsuitability for engagement as a seaman. The Council is not concerned with discipline as such, but only to determine whether a person is unfit to be a seaman and for what period. The striking off of a lawyer on the ground that the lawyer is not "a fit and proper person" to be enrolled has some analogies. Two cases in which a disbarment was thought to be appropriate were Clyne v. N.S.W. Bar Association (1960) 104 C.L.R. 186 and N.S.W. Bar Association v. Evatt (1968) 117 C.L.R. 177. In both cases, there had been repeated and persistent conduct on the part of the barrister which justified the striking off. In the latter case, the Court said, at p.183-4:- "The facts proved and found demonstrated unfitness to be a member of the Bar ~- not some isolated or passing departure from proper professional standards amounting to something less than proved unfitness. The Court did regard certain matters as extenuating circumstances but none of them really bears upon the vital issue, viz. whether the findings of misconduct, which were made, proved the unfitness of the respondent to be a barrister. The Supreme Court thought, moreover, that as the exercise of its disciplinary powers was, to some extent, a punishment for wrongdoing, mercy might be shown towards a young man who had not understood the error of his ways. The power of the Court to discipline a barrister is, however, entirely protective, and, notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved." A case which considered a single incident was that of Ziems v. The Prothonotary of the Supreme Court of N.S.W. (1957) 97 C.L.R. 279. In that case, the barrister had been convicted of manslaughter and sentenced to two years imprisonment. An appeal was allowed against his disbarment 17. and an order of suspension was imposed. At p.308-9, Taylor J. said:- ».. it is impossible, upon the evidence, to conclude that the appellant's conduct on the occasion in question was such as to make it appear that he was unfit to remain a member of the Bar. There remains the question as to what order should be made in the circumstances. Clearly enough the order that his name should be removed from the roll of barristers should be set aside; the only difficulty as I see the case is to determine what order should be substituted. For my own part I am of opinion that where a member of the bar is serving a term of imprisonment for a serious offence he should not, during the term of his imprisonment, be permitted to hold himself out - however ineffectually that may be done - as a person entitled to practise as a barrister. Accordingly, whilst I think there was no justification for the removal of his name from the roll of barristers, I am of opinion that an order should be made suspending him from practice during the residue of the term of his imprisonment." These are, of course, only examples from a very different field of occupation and concerning very different circumstances. Nevertheless, the issue in each of the cases was similar to that which the Marine Council had to consider, namely suitability to carry on the particular occupation. I take the finding in Ziems case to be an equivalent of a finding of unsuitability for engagement during the period specified. Section 6C of the Act defines incompetence and misconduct in relation to officers. The section reads: "6C. For the purposes of this Act - (a) an officer is incompetent if he 1s inefficient in the performance of any of his duties as an officer; and (b) an officer is guilty of misconduct if he 1s guilty of careless navigation, drunkenness, tyranny, improper conduct or, without reasonable cause or excuse, failure of duty." 18. Had the issue before the Marine Council been whether or not Mr Lloyd had been guilty of improper conduct, its decision that his conduct had been improper could scarcely have been challenged. I assume that for an officer to assault a seaman who is not an officer, on board ship, is understood to be unacceptable behaviour on the part of the officer, that is, one of the things an officer may not do. However, it was not sufficient for the operation of s.45A(9) that the Marine Council should be satisfied that Mr Lloyd was guilty of improper conduct on a particular occasion. It was required to be satisfied that he was unsuitable for engagement as a seaman. There are many indications that the Council did not genuinely turn its mind to that issue. An extract from the minute book of the Marine Council of 18 September 1986 contains these remarks:- "Members discussed the conflict of evidence and agreed, after careful consideration of the information before them, that despite any verbal provocation and whatever ensued in the alleyway outside the officers' bar, Lloyd did initiate the physical conflict by taking hold of Mr Marks and ejecting him from the room. Members agreed Lloyd's actions could not be justified as he should have referred Marks to the duty officer, Chief Engineer or Chief Steward. Chairman reminded members of a recent case where a seaman assaulted an officer in a hotel and received a 3 month suspension for an unprovoked assault. Chairman suggested that to be fair and consistent with previous decisions members should seriously consider whether a period of suspension should be imposed on Lloyd. 19. Members discussed the possible effect on Lloyd's future career as an officer. It was agreed, nevertheless, that Council must be even handed and that a period of suspension should be imposed. It was considered that a suspension of 3 months would be consistent with similar previous cases, in the circumstances." This extract together with the letters from the Chairman of the Marine Council to Mr Lloyd leave me with the impression that the Marine Council was of the view that it had power to suspend for misconduct and that, in Mr Lloyd's case, it thought that his conduct was improper and that a period of Suspension was appropriate. In other words, I am of the opinion that the Council did not turn its attention to the issues which 1t was required to consider but, having concluded that Mr Lloyd should be suspended for three months for misconduct, thought that the finding that Mr Lloyd was unsuitable for engagement during those three months was simply the form in which the Act required that decision to be expressed. The Council came to its final conclusion as a matter of form only, not as a matter of substance. Moreover, the Marine Council made no investigation of Mr Lloyd's past history. As Mr Lloyd had been in the Royal Australian Navy for many years and an officer of the Merchant Navy for many years, an examination of Mr Lloyd's history would plainly have assisted a consideration as to whether he was unsuitable for engagement as a seaman or whether what had occurred was an aberration in the conduct of a person who had 20. shown that he was well suited to that occupation. With respect to the lack of inquiry into these matters, Captain J. Hodgson, the Chairman of the Council, gave this evidence:-— "And no one felt that it was necessary to have any other information about his character? --- Information about his service at sea was available, which showed that there were no adverse reports as to conduct or character. Pray, what information was that? --- His personal file and any reported misconduct or offences under the Navigation Act reported by the master of a ship are, aS a matter of course, entered on a seaman's file, and there was nothing of that nature on Mr Lloyd's file. So, if you looked simply at his past record that seems to suggest that this was an isolated incident" ~-- Yes. But nobody bothered to consider that because it was an isolated incident it was unlikely to recur? ~-- No. And nobody thought it relevant to call for information from him or from anybody else about his character in the general community? --- No." Of course, there may well be isolated incidents of conduct which are so heinous that prior good conduct 1s of little or no relevance. But Mr Lloyd's conduct was not of that nature. The Marine Council merely concluded that "Lloyd did initiate the physical conflict by taking hold of Mr Marks and ejecting him from the room". It could not seriously be suggested that such conduct was so grave as to make Mr Lloyd's prior service as a seaman irrelevant. Another point is that there was no statement, certainly no clear statement, by the Council as to why Mr Lloyd was considered to be unsuitable for engagement aa seaman. It was not said by the Council that other officers 21. and seamen would not or could not be expected to work with Mr Lloyd, at least until memory of the event had faded, or that there was likely to be an attempt at retaliation should Mr Lloyd again go aboard ship or that Mr Lloyd had shown a propensity to violence and there was likely to be a repetition of the incident. No such matter was stated. Moreover, the reference in the minutes to the discussion of the other case in which a seaman who had assaulted an officer had received a three months' suspension and as to the need to be fair and consistent with that decision is an indication that the Marine Council was simply seeking to impose a penalty for improper conduct and was not turning its attention to the question whether the individual, Mr Lloyd, was unsuitable for engagement as a seaman. Lastly, the period selected by the Marine Council, three months, was so short as to indicate that the Council did not really have in mind that Mr Lloyd was not fit for engagement. Once, it is found that a person is unsuitable for engagement as a seaman, there may be reasons for restricting the time within which that finding will apply. Clearly, for example, if the cause of the finding is drunkenness, 1t may be appropriate to limit the finding to a period selected by reference to a period of rehabilitation. In the present case, however, the selection of the period of three months suggests that the Marine Council did not conclude that Mr Lloyd was unsuitable for engagement as a seaman but simply intended to impose a penalty for a breach of discipline. 22. That was not the function conferred upon the Marine Council by s.45A(9). It follows, in my opinion, that there was an error of law in the Marine Council's approach. Because of the error, the decision under review should be set aside. In this event, neither counsel sought to have the matter remitted for reconsideration. Although, in this light, it is unnecessary for me to deal with the natural justice issues raised in the application, it may be helpful if I make some comments thereon. The Marine Council 1s a body whose deliberations are subject to the rules of natural justice. See Kioa v. Minister for Immigration and Ethnic Affairs (1985) 62 A.L.R. 321. See also Furnell v. Whangarei High Schools Board [1973] AC 660, Ansell v. Wells (1982) 43 A.L.R. 41 and R. v. Pharmacy Board of Victoria, Ex parte Broberg [1983] 1 VR 211. The Council has adopted rules of procedure for the handling of its inquiries into the unsuitability of persons for engagement as seamen. The rules provide, inter alia:- "6, Council may at any time direct the Chairman to make such lawful inquiries as Council considers necessary to determine a person's suitability. 23. 10. The Chairman shall despatch to a person whose suitability is to be, or is being, considered by Council a letter: 14. A letter referred to in Rule 10 shall: (a) state all allegations made about the suitability of the person which are to be considered by Council. (b) list all known documents which have been or may be considered by Council; (c) draw attention to Rule 15; (d) invite the person to present his or her case to Council in writing; and (e) advise the person of the powers and functions of Council and the effect which Council decisions may have. 22. A person to whom a letter is sent in accordance with Rule 10 may submit to Council: (a) his or her explanation in writing of the circumstances which form the basis of the allegations; and (b) any other written statement or document which he or she wishes Council to take into account. 28. When considering a person's suitability, each member of Council present at the meeting shall be in possession of or have access to a copy of: (a) any report, document or application tabled by the Chairman under Rule 5; (b) any letter sent to the person under Rule 10 (c) any document listed in the letter pursuant to Rule 14(b) (d) any explanation or statement received from the person in accordance with Rule 22. 29. Council shall not consider any document, report or statement, including a report or statement by the Chairman following inquiries made pursuant to Rule 6, which was not listed in accordance 30. 31. 37. 39. 24. with Rule 14(b), except: (a) where the person has been advised that Council intends to consider the document, report or statement and that advice has been given in such a manner that the person has had adequate opportunity to exercise his rights under these Rules as though the document, report or statement were a document listed in accordance with Rule 14(b); or (b) any relevant matters contained in the document, report or statement has been adequately dealt with in the explanation submitted under Rule 22(a) unless the person has been given an opportunity to inspect that document, report or statement and amend if desired his or her explanation. Council shall not, at a meeting, decide to advise that a person is unsuitable unless a Majority of members present at the meeting considers that the factual basis of the allegations has been established beyond reasonable doubt. Because Council has no powers to summon and examine witnesses and the members must therefore consider the factual basis of the allegations using principally the documentation placed before them, members must not, except in the cases provided for in Rules 32 and 33, place undue reliance on documents containing uncorroborated statements, although such documents can be regarded as more or less persuasive, according to circumstances. After consideration of the factual basis of the allegations, Council shall proceed to determine whether such conduct or character as is alleged is of such a nature as would render a person unsuitable for engagement as a seaman. Council shall not consider conduct or character to be of such a nature as to render unsuitable for engagement as a seaman except in accordance with the policy and criteria approved by the Minister. Where a majority of members present at a meeting considers that the factual basis of the allegations against a person has been 50. 55. 67. 68. 25. established beyond reasonable doubt but a majority of members present considers that conduct of the kind alleged is not a kind of conduct which in the nature or amount displayed by the person renders a person unsuitable but in a more serious nature or in increased amounts could render a person unsuitable, Council shall not advise that the person is unsuitable but may, if it considers that such an action might be of benefit to the person, inform him or her of all the findings referred to in this Rule. The Chairman shall provide the Chief Mercantile Marine Officer with a copy of each telex sent in accordance with Rule 49. A person to whom a letter is sent 1n accordance with Rule 52 or 60 may request that Council review its advice. Noting that Superintendents have a role to play in assisting persons whose suitability is to be considered by Council by: (a) providing advice on procedures; (b) assisting with advice on presenting explanations; (c) being available for discussion; and (d) providing Council with reports of discussions the Chairman shall ensure that all Superintendents are provided with a copy of these Rules of Procedure and are advised of all changes thereto. If Council believes that a person, after following the procedures set out in these Rules of Procedure and taking advantage of assistance offered by Superintendents, may not have had sufficient opportunity to provide adequate explanation to Council, Council may allow the person to address Council in person." 26. ois These rules no doubt provide a fair procedure. The seaman is to be informed of all allegations made about his suitability for engagement. See rule 10 and rule 14. And, although the hearing is ordinarily a hearing on documents, the seaman is to be informed of all documents to be taken into account. No finding is to be made against him unless the basis therefor has been established beyond reasonable doubt. The rules were, however, not complied with in Mr Lloyd's case. No allegation as to his unsuitability for engagement was specified in the letter to Mr Lloyd of 17 July 1986, set out above, and the request by Mr Lloyd's solicitor for particulars of, inter alia, "the precise acts and/or omissions relied upon as constituting the misconduct" was not answered, or not answered directly. The Chairman of the Council wrote to Mr Lloyd on 1 September 1986 that "physical assault constitutes misconduct of a kind which may indicate that the person concerned is unsuitable to engage" and invited Mr Lloyd to submit "an explanation of the incident". The letter did not set out an allegation that Mr Lloyd was unsuitable. The rules of procedure laid down by the Council and the principles of natural justice both require that such an allegation and the grounds upon which it 1s based should be clearly stated. Sufficient particulars must be provided to enable the seaman to understand the allegation against him. As Andrews J. said in Hughes v. Johanson [1977] Qd R. 357 at p.364:- 27. "Particularly where a decision may be taken against him which may affect his property or his livelihood, aman should know in what way it is alleged that facts constitute conduct by him upon which such a decision may be based and which of such facts are to be relied upon." See the examinations of this issue in Etherton v. Public Service Board [1983] 3 N.S.W.L.R. 297 and in R. v. Pharmacy Board of Victoria, cited above. In Mr Lloyd's case, it was not made clear that there was an allegation against him. The master had not made a report under s.45A(10), nor had any other person made an allegation of unsuitability. Insofar as an allegation may be implied from the Chairman's letters, particulars thereof were not given so as to make clear to Mr Lloyd what was the case he had to meet. At no time, before or after 18 September 1986, was it made clear to Mr Lloyd, as indeed it is still not clear to me, what were the factors which were alleged to make or made Mr Lloyd unsuitable for engagement as a seaman. The finding of the Marine Council was a very serious one as far as Mr Lloyd's future was concerned. He was entitled to know whether the nature and seriousness of the scuffle were to be reconsidered, whether, for example, the finding in the log that he pushed Mr Marks from the bar through the door into the alleyway would be challenged. Mr Lloyd's solicitors asked for particulars as to what was alleged against Mr Lloyd but they were not provided. Mr Lloyd was asked to submit an explanation of the incident, but at no time was it made clear to him what was the contention with respect to which he ought 28. oa to direct evidence or submission. It was not put to Mr Lloyd that it was alleged that he was unsuitable for engagement as a seaman because any assault by an officer on a seaman would render the officer unfit for further engagement. It was not put that it was alleged that he was unsuitable for engagement having regard to the seriousness of the assault on Mr Marks. It was not put that it was alleged that he was unsuitable for engagement because he had a propensity to violence. No such matters were specified and in the circumstances it was very difficult for Mr Lloyd to know to what matter he should direct his answer to or to what extent he should go in the protection of his livelihood. The failure of the Council to make clear what was the allegation against Mr Lloyd affected not only Mr Lloyd's ability to answer the case against him but also the Council's own consideration of the matter. In his evidence, Captain Hodgson said that, in the discussion by members of the Council, "It was thought that there was the potential for that sort of behaviour again." Captain Hodgson agreed to the suggestion put in cross-examination that "it was felt that members of the maritime community might need some protection from him (Mr Lloyd)". But no allegation of a potentiality for future violence had been made and, without further inquiry, no finding of such a potential could properly have been made, even on the balance of probabilities, let alone beyond reasonable doubt. 29. Again, I take another example. Captain Hodgson gave this evidence:- "when you said a moment ago that the Council was satisfied a significant assault had occurred, what happened at the meeting which enables you to say that? --- There was a discussion, an examination of the material before the Council, a discussion; and the forming of a view that, on the material before it, Mr Lloyd had forcibly ejected, thrown I think would be the word, Mr Marks out of the room. When use the word "thrown" you are using it figuratively, are you? --- No, literally." Yet, only one statement before the Council suggested that Mr Marks had been thrown by Mr Lloyd out of the officers' mess. In the log, the master used the description "pushing Mr Marks through the door". The statement of Mr Marks said, "He then pushed me backwards by the shoulders out the door". How could the Council have come to the conclusion beyond reasonable doubt that Mr Marks was literally thrown out of the mess. Perhaps the Council did not in fact do so, for the minutes simply record a finding that "Lloyd did initiate the physical conflict by taking hold of Mr Marks and ejecting him from the room", though there is ambiguity in the word "ejecting" which was not a term used in any of the documents before the Council. However, the point that I would make is that, unless the issue to which the inquiry is to be directed is clearly defined, then not only will the seaman not be able to make an adequate submission, but also the Council itself may not focus its attention on those matters as to which the Council under its rules of procedure should be satisfied beyond reasonable doubt. 30. & ie I am thus of the opinion that the conduct of proceedings of the Council were not fair in Mr Lloyd's case. The order of this Court will therefore set aside the decision of the Marine Council and the decision will cease to have effect ab initio. Therefore there will be no finding against Mr Lloyd that he was unsuitable for engagement as a seaman. That may not satisfy Mr Lloyd as much as a full re-examination of the facts of the incident but it is all that these proceedings can achieve. The respondent should pay the costs of the proceedings. I certify that this and the 29 preceding pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Davies. Associate: J. (-<Ado, Date: 23 December 1987 Counsel for the applicant: Mc R.F. Wilkins Solicitors for the applicant: Turner Freeman Counsel for the respondents: Mr P. Roberts Solicitors for the respondents: Australian Government Solicitors Date of hearing: 23 November 1987